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" India -- Research Foundation for Science, Technology and Natural Resource Policy v. Union of India (WP 657/95), Reportof the High Powered Committee on Management of Hazardous Wastes

GREEN DECISIONS UPDATES - 2003

A.R. Ponnusamy Vs. �Thoppalan @ Karuppa Gounder :Decided On: 21.03.2003

Conservator of Forests and Anr. Vs. BR Saw Mill: Decided On: 27.03.2003

Lalji Sahay Bajpai Vs. State of Jharkhand and Ors.:Decided On: 12.03.2003

Man Mohan Grover Vs. State of Jharkhand and Ors.:Decided On: 20.03.2003

DLF Power Ltd. Vs. State of Jharkhand and Ors.

Orissa State (Prevention and Control of Pollution) Board Vs. Orient Paper Mills and Anr. Decided On: 10.03.2003

Samir Mathur Vs. State of A.P. and Ors: Decided On: 03.02.2003

Vijay Singh Punia Vs. Raj. State Board for the Prevention and Control of Water Pollution and Ors. Decided On: 07.03.2003

M.C. Mehta Vs. Union of India (UOI) and Ors. Decided on 02.04.2003

Pu. C. Thangmura Vs. Pu. F. Vanlalthlana: Decided On: 26.05.2003

Estate Officer, (Divisional Forest Officer) Jammu Forest Division and Ors. Vs. Mst. Jitto Devi Wd/O Late Sh. Rikhi Ram andAnr.Decided On: 06.02.2003

State of M.P. Vs. Kedia Leather & Liquor Ltd. and Ors. Decided On: 19.08.2003

N.D. Jayal and Anr. Vs. Union of India (UOI) and Ors. Decided On: 01.09.2003

Balram Kumawat Vs. Union of India(UOI) and Ors.Decided On: 27.08.2003

Indian Handicrafts Emporium and Ors. Vs. Union of India (UOI) and Ors.Decided On: 27.08.2003

M.C. Mehta Vs. Union of India (UOI) and Ors. On behalf of Monitoring Committee Decided On: 18.09.2003

State of M.P. Vs. Kedia Leather & Liquor Ltd. and Ors.Decided On: 19.08.2003

The Tata Housing Development Co. Ltd. and Anr. Vs.The Goa Foundation and Ors. Decided On: 17.09.2003

IN THE HIGH COURT OF MADRAS

Civil Revision Petition (PD) Nos. 797 and 1751 of 2002 and C.M.P. Nos. 6358 and 14922 of 2002

A.R. Ponnusamy Vs. �Thoppalan @ Karuppa Gounder :Decided On: 21.03.2003

Hon'ble Judges: P. Sathasivam, J.

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Counsels: For Appellant/Petitioner/Plaintiff: M. Venkatachalapathy, Sr. Counsel for M. Sriram

For Respondents/Defendant: K. Yamunan, Adv.

Subject: Environment

Catch Words: Air Pollution, Industrial Plant, Injunction, Pollution Control

Acts/Rules/Orders: Civil Procedure Code (CPC) - Section 115; Constiuttion of India - Article 227

ORDER

P. Sathasivam, J.

1. Since the issue raised in both the Revision Petitions is one and the same, they are being disposed of by the following commonorder. Defendant in O.S. No. 516 of 1999 on the file of the Additional District Munsif, Namakkal, aggrieved by the order dated 12-4-2002 passed in the suit, holding that the District Munsif's Court has jurisdiction to try the issue raised, has filed C.R.P. No. 797/2002under Section 115 of the Code of Civil Procedure.

2. The very same petitioner, aggrieved by the order of the same Court dated 26-8-2002 in I.A. No. 874/99 in O.S. No. 516/99,granting injunction and continuing the same without taking up the injunction application, has filed C.R.P. No. 1751/2002 under Article227 of the Constitution of India.

3. According to the plaintiff/respondent herein, he filed a suit in O.S. No. 516 of 1999 on the file of the District Munsif, Namakkal,against the defendant/petitioner herein for permanent injunction, restraining him (defendant/petitioner herein) from carrying on thebusiness of stone crushing by using the stone Crushers in S. No. 204/4A of Marurpatty village. In the said suit, the respondentcontended that if the petitioner operates the crushing unit in S. No. 204/4A, it will generate dust pollution and due to the same therespondent and his family members will be put to great hardship, inconvenience and loss. Further, the petitioner has not obtainedany order from the Tamil Nadu Pollution Control Board; hence the petitioner is not entitled to carry on the operation. The respondentherein filed I.A. No. 874/99 and obtained an order of injunction on 25-8-99. The respondent has no right to file a civil suit againstthe crushing unit which has obtained consent from the Tamil Nadu Pollution Control Board for running the unit by complying with theterms and conditions of the Board. In view of the bar under the Act, the person aggrieved can file a complaint only before theappropriate authority constituted under the Act. The learned District Munsif has framed the issue of maintainability of the suit as apreliminary issue as to whether the court has jurisdiction to try the suit. As against the order of the District Munsif, in thepreliminary issue, the petitioner has filed C.R.P. No. 572/2001 before this Court. By order dated 20-7-2001, this Court dismissed thesaid Revision holding that the suit is maintainable. The dismissal of the earlier C.R.P. will not inhibit the petitioner from seeking thelegal remedy that is available to him. It is also stated that though the learned District Munsif granted an injunction on 25-8-99 andeven after filing his counter on 20-1-2000, the trial Judge without taking the injunction application for enquiry and dispose of thesame, is extending the injunction order without any valid reason and thereby preventing the petitioner from running the crushingunit. In C.R.P. No. 797/2002 the petitioner has claimed that the Court below has no jurisdiction to hear the main suit namely O.S.No. 516/99. In C.R.P. No. 1751/2002 the very same petitioner has claimed that in any event the Court below was not justified inkeeping the injunction application, particularly even after filing of the counter affidavit.

4. Heard Mr. M. Venkatachalapathy, learned senior counsel for the petitioner and Mr. K. Yamunan, learned counsel for respondent.

5. The following questions are to be considered in these Revisions:

(i) Whether the suit filed by the respondent-plaintiff is barred under Section 46 of the Air (Prevention and Control of Pollution) Act,1981?

(ii) In any event, whether the Court below was justified in keeping the injunction application namely I.A. No. 874/99 withoutdisposing of the same one way or other?

6. The plaintiff/respondent herein has filed O.S. No. 516 of 1999 on the file of the District Munsif, Namakkal against thedefendant/petitioner herein for permanent injunction restraining the defendant from carrying on business of stone crushing by usingstone crushers in S. No. 204/4A of Marurpatti village. It is the grievance of the petitioner that inasmuch as the relief prayed forflows from the Pollution Control Act, the Civil Court is not the proper Forum. It is also his case that the Court below has omitted toconsider that the cause of action for the suit is the running of the stone crushing unit by the petitioner in Survey No. 204/4A inMarurpatti village, resulting in pollution of air and on this ground the injunction is sought for which cannot be gone into by the CivilCourt. On the other hand, it is the claim of the respondent that the very same issue namely ousting of Civil Court jurisdiction by theprovisions of Air (Prevention and Control of Pollution) Act, 1981 was considered and rejected by the lower Court and upheld by thisCourt, the present objection is not maintainable. Apart from the said aspect, it is stated that the trial court, by order dated 3-1-2001, while considering the very same issue, has held that suit is maintainable in the Civil Court and the Revision filed buy thepetitioner before this Court in C.R.P. No. 572/2001 was also dismissed on 20-7-2001. In the light of the said order of the trial Courtand the affirmation by this Court, the petitioner is not entitled to raise the same objection once again.

7. In the light of the various averments, I have carefully perused the plaint averments in O.S. No. 516 of 99 and the order of thetrial Court holding that the suit is maintainable. Learned senior counsel for the petitioner, by drawing my attention to Section 46 ofthe Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as "the Act"), would contend that inasmuch as theissue relates to air pollution, the Authority under the Act alone is competent to consider the same and by virtue of Section 46, thejurisdiction of the Civil Court is completely barred. In order to appreciate the said contention, it is useful to refer Section 46:

"Section 46. Bar of jurisdiction:- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matterwhich an Appellate Authority constituted under this Act is empowered by or under this Act to determine, and no injunction shall begranted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by orunder this Act."

It is clear from the above provision that in respect of any matter which an Appellate Authority in this Act is empowered, Civil Courthas no jurisdiction to entertain any suit and no injunction shall be granted in respect of any action taken or to be taken by the



has no jurisdiction to entertain any suit and no injunction shall be granted in respect of any action taken or to be taken by theAuthority concerned. Though prior to the filing of the suit, the plaintiff was having permission from the Pollution Control Board to useCrusher, admittedly, on the date of the suit, he was not having any order from the Board. In such a circumstance, as rightlycontended by the learned counsel for the respondent, the plaintiff has to approach the Civil Court to vindicate his grievance, if any,relating to air pollution. Sections 3 and 4 of the Act enable to form Central Pollution Control Board and State Pollution Control Boardrespectively. The powers and functions of the Boards have been specifically stated in various sections of Chapter II and III. As perSection 21, no person shall, without the previous consent of the State Board establish or operate an industrial plant in an airpollution control area. As per Section 31 (1), any person aggrieved by an order made by the State Board may, within 30 days fromthe date on which the order is communicated to him, prefer an appeal to the Appellate Authority. As rightly pointed out by thelearned counsel for the respondent, those matters which the Appellate Authority is empowered to decide, the jurisdiction of the CivilCourt is taken under Section 46 of the Act. I have already referred to the fact that on the date of the suit, the defendant was nothaving any order from the Pollution Control Board or from any Authority under the Act. As per Section 46, if there is an order by theAuthority concerned, either by the State Board or by any one, the aggrieved person cannot challenge the same before the CivilCourt and the only remedy for him is to approach the Appellate Authority under the Act to vindicate his grievance and not allmatters are barred under Section 46 of the Act. Mr. K. Yamunan, learned counsel for the respondent, has very much relied on adecision of the Andhra Pradesh High Court in M/s. Sreenivasa Distilleries v. S.R. Thyagarajan, reported in AIR 1986 Andhra Pradesh328. A learned Single Judge of the Andhra Pradesh High Court, while considering Section 58 of the Water (Prevention and Control ofPollution) Act (Act 6/1974), which is similar to Section 46 of the Air Act, has held that Section 58 does not bar jurisdiction of a civilCourt to entertain such a suit. Section 58 of the Water (Prevention and Control of Pollution) Act bars the jurisdiction of the CivilCourt to entertain any suit or proceeding against an order passed by the appellate authority. While construing the said provision,

the learned Judge has held as follows: (para 4)

"4?.Section 58 enacts two prohibitions. Firstly, not to entertain any suit or proceedings in respect of any matter which the appellateauthority constituted under the Act is empowered to determine. Secondly, no injunction shall be granted in respect of any actiontaken by any authority under the Act in pursuance of the provisions of the Act. This is the only provision barring the jurisdiction of aCivil Court. The section is intended to prese5rve the statutory protection given to the Boards untouched by civil actions. Now, thepresent action is only preventing the defendant from polluting water. But this section is not directed to annul any orders passed bythe authority constituted under this Act. Now, it is admitted that no orders are passed under the Act, and, therefore, any orderpassed by the Civil Court will not take away the jurisdiction of the authorities constituted under the Act?.."

There is no dispute that Section 58 referred to in the above decision is similar to Section 46 of the Air (Prevention and Control ofPollution) Act, concerned in the case on hand. As rightly observed by the learned Judge, the section is intended to preserve thestatutory protection given to the Boards untouched by civil actions. In the absence of any order by the Board or intervention by theAuthority under the Act, any order passed by the Civil Court will not take away the jurisdictional aspect constituted under the Act. Iam of the view that matters which are not to be agitated before the appellate authority, the Civil Court has jurisdiction to entertainand consider the same.

8. Apart from the above legal position, it is seen that working of the Stone-Crushing unit in S. No. 204/4A will be environmentalhazard and a source of air pollution, affecting the health of the people residing in the locality. It is highlighted by the respondentherein that when the petitioner wanted to re-commission the unit, several objections were raised by various people, including thePanchayat Union and the respondent, that one Selvakumar, whose house is situate about 100 metres from the crushing unit, alsoobjected to the same and that on a consideration of all these objections and after inspecting the site, the Tamil Nadu PollutionControl Board directed the petitioner not to recommence the unit at the existing site and refused to renew the consent order. It isalso brought to my notice that the Commissioner, Namakkal Panchayat Union has cancelled the licence of the petitioner and theTamil Nadu Electricity Board has disconnected the service connection to the crushing unit. Further, in the light of the specificobjection raised in the written statement regarding maintainability of the suit, the learned Additional District Munsif, Namakkal frameda preliminary issue regarding jurisdiction and after full-fledged enquiry, came to the conclusion that Civil Court has jurisdiction to trythe suit. Against the said order, the petitioner herein preferred C.R.P. No. 572/2001. Here again, elaborate arguments wereadvanced by both sides regarding bar of Civil Court's jurisdiction. This Court (Prabha Sridevan, J) by order dated 20-7-2001, afterconsidering the matter in issue in detail with reference to the provisions, namely, Section 2 (a) (b), Sections 31 and 46 of the Actand the ultimate conclusion of the trial Court, confirmed the decision of the trial Court holding that Civil Court has jurisdiction, anddismissed the Revision finding no ground for interference. No doubt, the learned Judge has observed that the dismissal of the C.R.P(C.R.P. No. 572/2001) will not inhibit the petitioner from seeking the legal remedy that is available to him under law. After the orderof this Court in C.R.P. No. 572/2001 dated 20-07-2001, confirming the order of the Court below stating that suit is maintainable inthe Civil Court, the petitioner filed an additional written statement on 19-2-2002 and again raised the same question before the trialCourt. Once again the trial Court by order dated 12-4-2002, held that the suit is maintainable and the Civil Court's jurisdiction is notousted by Central Act 14/1981. Against the said order, the petitioner once again challenged the same in C.R.P. No. 797/2002. In thelight of the factual details, namely, the statutory provisions referred to above and the order of this Court in C.R.P. No. 572/2001dated 20-7-2001, I am in agreement with the order of the trial Court dated 12-4-2002 holding that the suit as laid is maintainable.

9. Coming to I.A. No. 874/99 in O.S. No. 516/99, which was filed for interim injunction, it is seen from the certified copy of theorder, even on 25-8-99 the learned District Munsif after holding that prima facie case was made out and balance of conveniencewas in favour of the petitioner, granted ad-interim injunction till 8-9-99 and ordered notice to the respondent. It is further seen thaton the next hearing date i.e., on 8-9-99, vakalath had been filed for the respondent. It is further seen that after severaladjournments, the respondent filed counter on 20-1-2000 in the injunction application. Even after filing of counter by the solerespondent, the learned District Munsif, instead of disposing the said application, granted several adjournments by mentioning"enquiry?. Injunction order extended?..". Finally, this Court stayed the enquiry on 30-4-2002 in C.M.P. No. 6358/2002 in C.R.P. No.797/2002. It is not clear, particularly when the learned District Munsif having found that the suit is maintainable and after knowingthat the respondent had filed counter affidavit in the injunction application, why the said application has been kept pending withoutpassing orders one way or other. This Court has repeatedly held in all Interlocutory Applications that whenever the contesting partyor parties filed counter affidavit/statement, it is incumbent on the part of the Court to dispose of the same one way or other. Thesaid recourse has not been adopted by the learned District Munsif instead, he adjourned the said application on several occasionswithout any cause.

10. In the light of what is stated above, in view of the first order of the trial Court dated 3-1-2001 holding that the Civil Court hasjurisdiction to try the issue in question, order of this Court in C.R.P. No. 572/2001 dated 20-7-2001 confirming the said order, in thelight of the language used in Section 46 of the Act, and the plaintiff is not challenging any order or proceedings of the PollutionControl Board or Authority constituted under the Act, I hold that the suit instituted by the plaintiff is maintainable. It is made clearthat if the matter in issue is to be considered by an Appellate Authority under section 31 of the Act, undoubtedly, the Civil Court isbarred under Section 46 of the Act. In the light of the earlier conclusion that the learned District Munsif was not justified in keepingI.A. No. 874/99, he is directed to dispose of the same on merits one way or other on or before 30-04-2003, after affording sufficient

opportunity to both parties. After disposal of the said application, it is for him to dispose of the suit on merits expeditiously,



opportunity to both parties. After disposal of the said application, it is for him to dispose of the suit on merits expeditiously,uninfluenced by any of the observations made above. Both the Civil Revision Petitions are disposed of accordingly. Consequently,connected Civil Miscellaneous Petitions are closed.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

WA Nos. 42, 159, 161 and 211 of 2003 and WP Nos. 34514, 34516, 34524 and 34528 of 1998

Conservator of Forests and Anr. Vs. BR Saw Mill: Decided On: 27.03.2003

Hon'ble Judges: Devinder Gupta, C.J. and B. Sudershan Reddy, J.

Counsels: For Appellant/Petitioner/Plaintiff: Government Pleader in all WAs and M. Dhananjaya Reddy, Adv. in WP Nos. 34514, 34516, 34524and 34528 of 1998

For Respondents/Defendant: Government Pleader in all WPs and P. Sitarama Raju, Adv.


Catch Words: Act, Activity, Addition, Admission, Adulteration, Agency, Allegation, Amendment, Any Person, Appeal, Application, Appropriate,Authority, Benefit, Business, Case, Challenge, Charge, Charge Sheet, Claim, Common Order, Complaint, Concern, Concession,Consent, Consideration, Conversion, Cost, Criminal Case, Criminal Proceeding, Criminal proceedings, Date, Date Of, Decision,Departmental, Departmental Proceeding, Direction, Disposal, Enquiry, Equipment, Factor, Fault, Filing, Forest Officer, Forest Produce,Forged, Government, Government Pleader, Governor, Grant, Grant Of Licence, Granting, Ground, Ground For Rejection, Guideline,Guidelines, India, Inquiry, Instruction, Interference, Interim Order, Issue, Land, Lead, Letter, Liberty, Licence, License, Licensee,Licensing, Licensing Authorities, Licensing Authority, Material, Material on Record, Municipal Area, Nature, Necessity, Non-Submission, Notice, Notices, Objection, Objections, Obtain Licence, Offence, Offences, Officer, Option, Order, Owner, Parties, Pass,Passing Of, Pendency, Pending, Period, Permit, Person, Persons Concerned, Petition, Pleader, Police Station, Position, Possession,Preliminary Inquiry, Premises, Principal, Proceeding, Proceedings, Protected, Quantity, Quashing, Reason, Receipt, Record, Reference,Refusal, Register, Registered, Registration, Rejection, Relevant Consideration, Relevant Factor, Relevant Factors, Relief, Reserve,Rule Nisi, Scheme, Seizure, Set Aside, Show Cause, Show Cause Notice, Show-Cause Notice, State, State Government, Status,Status Quo, Stock, Subject, Superintendent, Temporary Licence, Transit, Transportation, Verification, Writ, Writ Appeal, WritPetition, Writ Petitioner

Acts/Rules/Orders: Andhra Pradesh Forest Act, 1967 - Sections 29, 44 and 68; Andhra Pradesh Saw Mills (Regulation) Rules, 1969 - Rule 4(1) and 4(2)

Cases Referred: Malliah v. Superintendent of Excise, 1988 (1) ALT 603; Dabur India Ltd. v. State of Uttar Pradesh, AIR 1990 SC 1814

Disposition: Petitions dismissed

JUDGMENT

Devinder Gupta, C.J.

1. Four Writ Appeals arising out of a common order passed on 1-11-2002 in WP Nos. 26864, 26877, 26898 and 26978 of 1999respectively came up for consideration before us. It was brought to our notice by the learned Counsel appearing for the parties thatthe Writ Petition Nos. 34514, 34516, 34524, and 34528 of 1998 arising out of the same subject-matter filed by the very same writpetitioners i.e., respondents in the writ appeals were pending consideration, hence the writ appeals and the writ petitions be heardtogether. With the consent of all the parties the writ petitions have also been taken on record. The appeals and the writ petitionswere heard together and are being disposed of by this common order.

2. The parties are being referred to by their status in the writ appeals. The respondents claim that the saw mills were establishedwithin Nizamabad Municipal area much prior to the date when Andhra Pradesh Saw Mills (Regulation) Rules, 1969 (hereinafterreferred to as "the Rules") were made applicable to the said area. When the saw mills were established there was no necessity toobtain any licence to install, erect or operate a saw mill in the notified municipal areas. Only when the rules were made applicableeven to municipal areas by reason of G.O. Ms. No. 99 dated 17-7-1998, necessity arose to obtain licence.

3. It appears that huge quantity of illicit timber had flowed into Nizamabad municipal area, alleged to be covered under fake andforged permits during the year 1993-94. The forest authorities (hereinafter referred to as the appellants) issued show-cause noticesinvoking the provisions of the rules with a view to confiscate the stock of timber lying in the respondents' saw mills and to explainabout the illicit transportation of timber. Feeling aggrieved the respondents (Saw Mills) filed a batch of Writ Petitions, one of whichwas W.P.No. 22314 of 1996, seeking quashing of notices, inter alia, alleging that the permits in question were not fake and that thetimber covered by the said permits had already been disposed of under the cover of transit permits granted by the forestauthorities. By order dated 11.12.1996, the Writ Petitions were disposed of quashing the show cause notices on the ground that therules were not attracted since the saw mills were located in municipal area. While disposing of the writ petitions, certainobservations were made and liberty was reserved to the appellants to take action against the saw mills, in accordance with law.Pursuant thereto, second show-cause notices issued in February, 1997 intending to confiscate the timber and the saw mills,purportedly, invoking Section 44 of the A.P. Forest Act (for short "the Act") and Rules 3 and 5 of Andhra Pradesh Forest ProduceTransit Rules, 1970. Feeling aggrieved, a batch of writ petitions were filed by respondents, one of which was W.P. No. 4301 of 1997.Respondents allege that the said writ petitions were allowed by this Court on 16.6.1997 quashing the notices since the timber wasnot available for seizure. The appellant thereafter is alleged to have issued another show-cause notice dated 4.8.1997 under Rules2, 8 and 11 of A.P. Forest Produce (Storage & Deport) Rules, 1989 proposing to confiscate the timber possessed by the respondentstogether with the saw mill equipment and infrastructure used in conversion of the timber which was alleged to have been smuggled.Another batch of writ petitions were filed by the respondents challenging the notices on the ground that the said rules under whichthe notices had been issued had no application to the respondents - saw mills. These writ petitions were allowed by a Common



the notices had been issued had no application to the respondents - saw mills. These writ petitions were allowed by a CommonOrder dated 20.3.1998. Notices were quashed and the appellants were directed to consider the applications of the respondents forgrant of transit permits.

4. In view of the fact that the rules became applicable even to municipal areas by virtue of amendment to the Rules, vide G.O. Ms.No. 99 dated 17.7.1998; the respondents filed applications for grant of licences under the amended rules. The said applications wererejected on 24.11.1998 on the ground that there were criminal cases registered against the respondents. The respondents filed WritPetitions (W.P. No. 34514, 34516, 34524 and 34528 of 1998) challenging the action of the appellants in rejecting their applications.A prayer for interim direction to grant temporary licences during the pendency of the writ petitions was also made by therespondents. When the writ petitions came up for admission, on 11.12.1998 a learned single Judge, while issuing Rule Nisi, grantedinterim direction directing the appellants to consider the case of the respondents for grant of licence within a period of four weekswithout reference to the criminal cases stated to have been registered against them. In the meanwhile, it was directed that therespondents be permitted to carry on the business in accordance with law. The said writ petitions are still pending. The interim orderpassed in the said writ petitions is still in operation. The learned single Judge, however, in the impugned order, which is the subjectmatter of writ appeals, has observed that the said writ petitions stood disposed of on 11.12.1998.

5. The applications for grant of licences again came up for consideration but were rejected on the ground of non-submission ofcertain documents, which the respondents are alleged to have submitted again. The respondents were thereafter informed that theirapplications already stood rejected on 24.11.1998 and on 11.1.1999. Feeling aggrieved, respondents again challenged theappellants' action by filing writ petitions before this Court one of which was W.P.No.7476 of 1999. The said batch of writ petitionswere decided at the admission stage on concession made by the learned Counsel appearing for the appellants that direction beissued to the appellants to consider the applications and pass appropriate orders thereupon. Accordingly' by order-dated 3.4.1999,the writ petitions were disposed of and the appellants were directed to reconsider the applications and pass fresh order thereonwithin a period of four weeks.

6. The applications of the respondents were again rejected on 26.11.1999. The said order was challenged by the respondents in fourseparate writ petitions. This batch of writ petitions have been allowed by the learned single Judge by a common order passed on1.11.2002, which is the subject matter of the present Writ Appeals.

7. The applications of the respondents for grant of licences were rejected on several grounds. Challenge by the respondents to theorder of rejection was also on several grounds. The appellants resisted the writ petitions by filing counter-affidavit Without goinginto the grounds which had been raised by respondents and without taking into consideration - the objections raised by theappellants in the counter-affidavit, the learned single Judge allowed the writ petitions only on one ground and directed theappellants to grant licences to the respondents within two weeks from the date of receipt of the order with costs of Rs. 3,000/-each and further directing the appellants to recover the said costs from the concerned Divisional Forest Officer who had passed theorders impugned against in the writ petitions. Till the licences are granted, it was directed that status quo be continued.

8. Paras 4 and 5 of the order reads:

4. The learned Government Pleader has filed a counter disputing and denying the allegations made in the affidavit of the petitioners.

In fact, so many other allegations were also made in the counter, which we need not go into at this stage. When the grant of ninelicences subsequent to the impugned orders was put to the learned Government Pleader and was also directed to get instructions,the learned Government Pleader was not in a position to explain under what circumstances, such licences were granted to ninepersons, when it was the view of the Divisional Forest Officer that the source available in the Nizamabad town does not sustain anymore saw mills.

5. Therefore, these writ petitions are disposed of on the simple ground that the impugned order passed by the Divisional ForestOfficer is clearly motivated and intentional and there are absolutely no justifiable grounds shown in the impugned order for notgranting the licence to the petitioners who are existing saw mill owners.

9. The aforementioned order is under challenge by the appellants on the ground that the learned single Judge ought to haveconsidered the stand taken by the appellants and the fact that the offences alleged to have been committed by the respondentswere of serious nature and granting of licences to the saw mills - respondents may lead to deterioration of the forests in the area.

10. Learned Counsel appearing for the respondents submitted that there was no ground to interfere with the impugned order sinceone of the grounds on which the applications of respondents were rejected was that the number of saw mills in Nizamabad town was48 and none of the saw mills were running on sustainable basis and the appellants were unable to explain the reason for grantinglicences to nine other persons subsequent to the passing of the order impugned in the writ petitions. Learned Counsel appearing forthe respondents also submitted that the very act of the appellants in rejecting the applications of the respondents for grant oflicences on the ground of registration of criminal cases or pendency of criminal proceedings is bad in law inasmuch as mereregistration of criminal case or pendency of criminal proceedings cannot be a ground for rejection unless it is established thatrespondents were responsible for the fake licences or forged permits. Reliance was placed on the decision of a learned single Judgeof this Court in Malliah v. Superintendent of Excise, 1988 (1) ALT 603. Reliance was also placed on the decision of the SupremeCourt in. Dabur India Ltd. v. State of Uttar Pradesh, AIR 1990 SC 1814, in support of submission that the applications for grant oflicences must be judged in accordance with law and the appellants could not have taken mere pendency of criminal proceedings tobe a ground to reject the same. Sub-rule (2) of Rule 4 of the Rules lays down the guidelines, which alone have to be taken note ofwhile granting licences. Mere registration of criminal cases or pendency of criminal proceedings is not a ground on which applicationfor licence can be rejected under Sub-rule (2) of Rule 4.

11. We have heard learned Counsel appearing for the parties and have gone through the entire material on record and dulyconsidered the submissions.

12. There is enough material available on record to show that there were complaints alleging that saw mill owners of Nizamabadtown were indulging in transportation of smuggled timber covered by fake licences and forged permits. The Forest Official madeverification of the records of the saw mills. As per the case of the appellants, during verification of the records of the premises ofthe saw mills, it was noticed that the respondents had indulged in transportation of illicit smuggled timber into the saw mills coveredunder the fake permits. Number of permits were found to be fake and forged, which was confirmed by the Divisional Forest OfficerNizamabad and the Divisional Forest Officer, Yawathmal, Maharashtra. The fake permits are alleged to have been utilised by therespondents which pertain to the years 1993, 1994 and 1995.

13. In the additional counter-affidavit filed by the Divisional Forest Officer, Nizamabad the details of the saw mills which were allegedto be involved are furnished which include the respondents herein. Details of complaints lodged against the saw mills with the



to be involved are furnished which include the respondents herein. Details of complaints lodged against the saw mills with theconcerned Station House Officers of Nizamabad town have also been furnished. It is stated that the Station House Officer 1 TownPolice Station, Nizamabad has filed charge sheets against the saw-mill owners including the respondents herein and that a requestwas made to the State government for entrusting the cases to CBCID or any independent agency, vide letter dated 20.1.1997.Government of Andhra Pradesh by letter dated 6-6-2000 entrusted the matter to CBCID and on 2.8.2000, the Principal ChiefConservator of Forests, Andhra Pradesh issued instructions to file specific complaints before the Addition Director-Genera! of Police;CBCID, Hyderabad against the saw-mills, which were involved in fake and forged permit cases. In this back ground, it is stated thatapplications for grant of licences were rejected because of the pendency of criminal cases which is a relevant factor which hadcome to the notice of the Forest Officers that illicit timber was being smuggled and respondents were involved in the said activity.After the respondents obtained interim orders on 11.12.1998 in their Writ Petitions including W.P. No. 34514 of 1998 again thematter was considered by the concerned forest authorities in the light of the impugned order and on relevant considerations, theapplications were again rejected.

14. The only question that arises for consideration is whether the appellants were justified in rejecting the applications of thepetitioners for grant of licences.

15. In exercise of the powers conferred by Section 29 read with Section 68 of the Andhra Pradesh Forest Act, 1967, the Governorof Andhra Pradesh issued rules regulating the location of saw mills and conversion of timber at the saw mills in the State. Rule 4(1)(a) provides that any person desiring to install, erect or operate a saw mill within the area specified in Rule 3 shall make anapplication together with the necessary material to the licensing authority. Sub-rule (2) of Rule 4 of the Rules empowers the

licensing authority to grant licences only if the licensing authority, on making such enquiry as he deems fit and after satisfyinghimself whether or not there would be any objection to granting the licence applied for, having regard to safeguarding the timber inany reserved, protected or proposed forest, or in any land referred to in Rule 3. In such cases where there were serious allegationsof involvement of respondents in the very act of being in possession of smuggled timber, on strength of some forged permits, in ourconsidered opinion, the same would be a relevant factor within the ambit of Sub-rule-(2) of Rule to be taken note of in declining theapplications. Therefore, no fault can be found in the appellants having rejected the applications of the respondents on 24.11.1998,which is the-subject-matter of Writ Petition No. 34514 of 1998 and the Batch. Be it noted that the respondents got an interim orderfor reconsideration of their applications by not taking into consideration the fact of registration of F.I.Rs. Forest authoritiesthereafter had no option but to reconsider the applications without taking note of a very relevant factor. The applications wereagain rejected on various grounds, which was challenged by the respondents in fresh writ petitions. Learned single Judge allowedthe writ petitions which has given rise to the present appeals.

16. The learned single Judge in the impugned order did not examine all the grounds on which applications had been rejected and alsofailed to consider vital objections raised by the appellants in the counter-affidavit in support the order and proceeded to allow thewrit petitions only on one ground. Since rejection of the applications was on various grounds, it was not proper to have discardedthe other grounds. Be that as it may, since the second order dated 26.11.1999 was passed because of the interim direction that theapplications of the respondents may be considered without taking note of registration of criminal cases against the respondentsobviously in the fresh order pendency of criminal cases could not have been taken note of by the appellants.

17. The first order of rejection of the applications of the respondents for grant of licences has to be read in continuation of thesecond order, which is the subject-matter of the Writ Appeals. Because of the act of the respondents in having obtained interimorder for disposal of their applications de hors pendency of the criminal proceedings that the second order was passed, therespondents cannot take benefit of the situation contending that the rejection by the second order is on grounds, which are nottenable in law. Before us now the question is whether the forest authorities were justified in having rejected the applications forgrant of licence. Learned single Judge proceeded to quash the order of rejection simply on one ground which as noticed above is notpermissible in law inasmuch as it was necessary for the learned single Judge to have looked into the other grounds whether thesame were relevant or not. Without looking at the counter or the objections raised by the forest authorities, the learned singleJudge proceeded to quash the order and granted the relief to the respondents. Reading both the orders together and as we havealready found earlier the very act of the forest authorities in having rejected the applications of the respondents was because oftheir involvement in criminal cases concerning the illicit timber. There is no foundation for the observations of the learned singleJudge that the impugned order passed by the Divisional Forest Officer is motivated and intentional.

18. In Malliah v. Superintendent of Excise the question for consideration was refusal of authorities to renew licences under the Treefor Tappers Scheme on ground that the licensees were involved in adulteration of toddy. It was held that the criminal cases againstthe petitioners therein had not been decided, therefore, it cannot be said that the persons concerned were involved in adulterationof toddy as their involvement had not been proved either in departmental proceedings or in criminal proceedings before the Court.The ratio of the said case will have no application to the case in hand. In the instant case, enough material had been collectedduring inquiry suggesting that the respondents were in possession of illicit timber relatable to the fake and forged permits. No doubtcriminal cases have not yet concluded and there is no verdict recorded therein. But the seriousness of the allegations on the basisof preliminary inquiry and on the basis of material collected would also suggest that relevant factors were prevalent as are requiredto be taken into consideration by the licensing authorities under Sub-rule (2) of Rule 4 of the rules, necessitating rejection of theapplications for grant of licences.

19. Ratio of the decision in. Dabur India Ltd. v. State of U.P. is also of no help to the respondents. Rather it supports the standtaken by the appellants that the rejection of the application for grant of licence by order dated 24.11.1998 was in accordance withlaw since Sub-rule (2) of Rule 4 enjoins upon the licensing authority to satisfy itself whether or not there would be any objection tothe grant of licence applied for, having regard to safeguarding the timber in any reserved, protected or proposed forest. When thereare allegations that the respondents are involved in transportation of illicit timber in the area, the same as noticed above, in ourview, would be a relevant factor that could be taken note of by the licensing authority while considering the applications for grantof licence under Sub-rule (2) of Rule 4 of the Rules. In this view of the matter, we are of the considered opinion that the order ofrejection dated 26-11-1999 is in accordance with law and no interference is called for. We are also of the view that there is noforce in the writ petitions filed by the respondents challenging the action of the forest authorities in rejecting their applicationsbecause of the pendency of serious criminal cases against them and for that reason the writ petitions are liable to be dismissed. Thenecessary consequence would be that the impugned order passed by the learned single Judge giving rise to the appeals is liable tobe set aside and the writ petitions are liable to be dismissed.

20. Consequently, Writ Petition Nos. 34514, 34516, 34524, and 34528 of 1998 challenging the first order dated 24-11-1998 aredismissed and the writ appeals are allowed. The impugned order passed by the learned single Judge is set aside. Resultantly, WPNos. 26864, 26877, 26878 and 26898 of 1999 also stand dismissed. There shall be no order as to costs.

IN THE HIGH COURT OF JHARKHAND




WP (C) No. 27 of 2003

Lalji Sahay Bajpai Vs. State of Jharkhand and Ors.:Decided On: 12.03.2003

Hon'ble Judges: M.Y. Eqbal, J.

Counsels: For Appellant/Petitioner/Plaintiff: Rajiv Ranjan, Adv.

For Respondents/Defendant: SC II


Catch Words: Act, Activity, Appellate Authority, Application, Approval, Authority, Bench, Cancelled, Case, Central Government, Cessation,Condition, Consideration, Date, Decision, Direction, Division, Division Bench, Enactment, Forest Department, Forest Officer,Forthwith, Fresh Permission, Government, Grant, Grant License, Ground, Guideline, Guidelines, Illegal, India, Issue, Jurisdiction, Land,Letter, Licence, License, Licensing, Licensing Authority, Mining, Name, Nature, New, Notification, Object, Officer, Order, Pass,Permission, Permission under, Possession, Prima Facie, Prior Approval, Protected, Quashing, Railway, Reason, Record, Refused,Refusing, Renewal, Report, Reserve, Revenue, Right, Secretary, State, State Government, Survey, Valid, Valid Licence, WithoutJurisdiction, Writ

Acts/Rules/Orders: Indian Forest Act, 1927 - Section 29; Forest Conservation Act, 1980 - Section 2

Cases Referred: T.N. Godavarman Thirumulkpad v. Union of India and Ors., AIR 1997 SC 1228; Bhagwan Bhoi v. State of Orissa and Ors., AIR 2002Ori 201

Disposition: Petition dismissed

ORDER

M.Y. Eqbal, J.

1. In this writ application the petitioner has prayed for quashing the order dated 22.12.2001, whereby the Divisional Forest Officer,Kolhan Forest Division, being the Licensing Authority, cancelled the license of the Saw Mill of the petitioner and also the order dated11.5.2002 passed by respondent No. 3, Conservator of Forest, being the appellate authority, who affirmed the order passed by theLicensing Authority.

2. Petitioner's case is that he started Saw Mill on a portion of land comprised of RS Plot No. 431 under valid licence granted by therespondents in the year 1976. Petitioner's further ease is that RS Plot No. 431 stands recorded in the name of Sputh Eastern Railwayin survey record of right and the land has been shown in possession of Forest Department since 1940. It is contended by thepetitioner that time-to-time license was renewed by the Licensing Authority but in 2001 the Licensing Authority refused to renewthe license.

3. Respondents in their counter affidavit have stated that the impugned orders refusing to grant license to the petitioner has beenpassed in the light of the orders passed by the Supreme Court restraining any non-forest activities in the forest land. It is statedthat running of Saw Mill of any kind is not permissible without approval of the Central Government under the provision of ForestConservation Act. Respondent's further case is that the location of the Saw Mill is within less than two kilometer nearest to theprotected forest and the plot in question where the petitioner running a Saw Mill is in peaceful possession of the Forest Departmentsince 1940.

4. Mr. Rajiv Ranjan, learned counsel for the petitioner assailed the impugned orders as being illegal and wholly without jurisdiction.Learned counsel drawn my attention to Section 29 of the Indian Forest Act and submitted that only excepting those forest declaredby notification the respondents had no authority to refuse the renewal of license merely because the Saw Mill is situated within the

area described as a forest. In my opinion, the submission of Rajiv Ranjan is wholly misconceived and devoid of any substance.

5. Admittedly, the petitioner installed saw mill on a portion of land of RS Plot No. 431 which stands recorded in the Revenue Recordof Right in the name of South Eastern Railway and the nature of the land has been shown as forest and in possession of the ForestDepartment. The only question therefore falls for consideration is as to whether petitioner can carry on saw mill on the forest land.

6. From perusal of the impugned letter issued by Divisional Forest Officer refusing to renew the license of the petitioner, it appearsthat the only ground taken by the authority is that pursuant to the decision of the Supreme Court no new license can be grantedafter 12.12.1996. It is stated in the said letter that since petitioner was not granted licence for saw mill after 1997 and therefore, itcannot be renewed. It is not the case of the petitioner that the saw mill of the petitioner is not situated within the forest area.

7. In the case of T.N. Godavarman Thirumulkpad v. Union of India and Ors., AIR 1997 SC 1228, the Supreme Court while consideringthe, question about the object and purpose of the enactment of Forest (Conservation) Act, 1980 issued some guidelines. In theorder dated 12.12.1996 the direction inter alia given by the Supreme Court reads as under :

. "In view of the meaning of the word "forest" in the Act, it is obvious that prior approval of the Central Government is required forany non-forest activity within the area of any "forest". In accordance with Section 2 of the Act, all on going activity within anyforest in any State throughout the country, without the prior approval of the Central Government, must cease forthwith. It is,therefore, clear that the running of saw mills of any kind including veneer or ply wood mills, and mining of any mineral are non-forestpurposes and are, therefore, not permissible without prior approval of the Central Government. Accordingly, any such activity isprima facie violation of the provisions of the Forest Conservation Act, 1980, Every State Government must promptly ensure totalcessation of all such activities forthwith.



cessation of all such activities forthwith.

8. The Supreme Court again passed the order in the same case on 4.3.1997 (AIR 1997 SC 1233) issuing further direction. Para 4 ofthe said order is worth to be quoted :

"All unlicensed saw mills, veneer and ply wood industries in the State of Maharashtra and the State of Uttar Pradesh are to beclosed forthwith and the State Government would not remove or relax the condition for grant of permission/license for the openingof any such saw mill, veneer and ply wood industry and it shall also not grant any fresh permission/license for this purpose. TheChief Secretary of the State will ensure strict compliance of this direction and file a compliance report within two weeks."

9. Recently a Division Bench of Orissa High Court in the case of Bhagwan Bhoi v. State of Orissa and Ors., AIR 2002 Ori 201, wasconsidering a question as to whether permission under the aforesaid Act is required even for felling of trees from private forest.Speaking for the Bench, Hon'ble P.K. Balasubramanyan, Chief Justice (as he then was) following the decision of the Supreme Court inGodavarman case held :

"In view of the decisions of the Supreme Court as aforesaid, there cannot be any doubt that the Forest (Conservation) Act wouldapply to any forest land whether declared as private forest or not and whether the forest is a reserve forest or not. Once you findthat the land satisfies the description of being a forest land, it has to be taken that the Forest (Conservation) Act would haveapplication and no permission to fell trees could be granted without prior concurrence of the Central Government."

10. Taking into consideration the entire facts of the case and the law discussed herein above, I am of the opinion that therespondents have rightly refused to renew the saw mill license of the petitioner, which is situated on the forest land and inpossession of the forest department for the last several decades.

11. For the reasons, aforesaid, there is no merit in this writ application, which is accordingly dismissed.


L.P.A. No. 423 of 2002

Man Mohan Grover Vs. State of Jharkhand and Ors.:Decided On: 20.03.2003

Hon'ble Judges: P.K. Balasubramanyan, C.J. and Gursharan Sharma, J.

Counsels: For Appellant/Petitioner/Plaintiff: M.M. Banerjee and Indrajit Sinha, Advs.

For Respondents/Defendant: B.S. Lall, A.A.G.


Catch Words: Mining Lease, Mining Operation

Acts/Rules/Orders: Bihar Private Forest Act, 1947 - Sections 14 and 20; Forest (Conservation) Act, 1980 - Section 2

Disposition: Appeal dismissed

ORDER

1. Heard learned counsel for the appellant and learned counsel for the respondents.

2. A mining lease was granted to the appellant on 15.2.1995 for a period of 10 years. It is seen that the land was already notified asprivate protected forest under the provisions of the Bihar Private Forest Act. 1947. After the coming into force of the Bihar PrivateForest Act. 1947 and the various decisions of the Supreme Court, it was apparently realized that the land in question could not havebeen leased out for using the land for non-forest purposes, namely, mining operations and that the lease could not have beengranted on the coming into force the Forest (Conservation) Act, 1980. Therefore the lease was cancelled notwithstanding the factthat its term expired only by 22.11.2004. The appellant approached this Court challenging the cancellation of the lease. It wascontended that, subsequently, the Bihar Land Reforms Act came into force and the land vested in the State and there was noillegality in granting the lease even if the land was recorded as Pahad in the revenue records and consequently the cancellation ofthe least: on the ground that it was forest land and the activity to be carried on by the lessee was not for a non-forest purpose isnot justified or legal. The contention of the appellant was opposed by relying on the notification issued under the provisions of theBihar Private Forest Act. 1947 and contending that since the land is a forest land it could not have been leased out for a non-forestactivity. The appellant could not dispute the fact that the land had been notifieci as forest land under the Bihar Private Forest Act.1947.

3. In this situation, the learned single Judge held that since the land was a private protected forest under the provisions of the BiharPrivate Forest Act, 1947 and by a notification, the land was notified as private protected forest, in the light of the decisions of theSupreme Court referred to in that judgment, the State was not entitled to grant any lease or licence for using the forest land for anon-forest purpose. The learned single Judge, therefore, declined to interfere and accordingly dismissed the writ petition.

4. Challenging the decision of the learned single Judge in this appeal, it is submitted that proceedings are still pending for decidingwhether the land is held by the State Govt. or by the Forest Department and in this view of the matter, the cancellation of thelease before the expiry of the term was not justified. With respect to counsel, it has to be said that the dispute if any as towhether the land is under the control of the State Government or the Forest Department, has no relevance. That the lease hasbeen granted for mining purposes a non-forest activity is admitted. That the land is forest land, is clear from the notification issuedunder the Bihar Private Forest Act, 1947. The fact that the land is notified as Pahad in the revenue record does not make it not aforest. Nor can it prevail over the notification issued under the Bihar Private Forest Act, 1947. After all most of the forests arehillocks or Pahads.



5. So long as there is a notification to the effect that the land is forest land and the Government had decided to manage andcontrol the protected forest, the appellant cannot claim to carry on mining activities therein. Even otherwise, if it is forest land incommon parlance, the use of it for any non-forest activity is prohibited in the light of the directions of the Supreme Court,irrespective of the ownership over the land or whether it has been notified as a reserved forest or not. Since we are satisfied thatthe learned single Judge was justified in declining relief to the appellant, we see no reason to interfere. We, therefore, dismiss theappeal. No order as to costs.


W.P. (C) No. 5894 of 2002

DLF Power Ltd. Vs. State of Jharkhand and Ors.Decided On: 18.06.2003

Hon'ble Judges: S.J. Mukhopadhaya, J.

Counsels: For Appellant/Petitioner/Plaintiff: J.C. Seth and Satish Bakshi, Advs.

For Respondents/Defendant: A.K. Pandey and Sarvendra Kumar, JC to GP-I

For Union of India: P.K. Prasad, Adv.


Subject: Constitution

Catch Words: Administrative Action, Audi Alteram Partem, Environmental Impact Assessment, Environmental Pollution, Estoppel, Fair Play, NaturalJustice, Pollution Control, Promissory Estoppel, Rules of Natural Justice, Sensitive Area, Show Cause

Acts/Rules/Orders: Water (Prevention and Control of Pollution) Act, 1974 - Sections 25, 26 and 27; Air (Prevention and Control of Pollution) Act, 1981 -Section 21

Cases Referred: Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd., AIR 1983 SC 848; M.P. Sugar Mills v. State of U.P., AIR 1979 SC 621

Disposition: Writ petition allowed

JUDGMENT

S.J. Mukhopadhaya, J.

1. The petitioner M/s. DLF Power Limited being not satisfied with the order of withdrawal of No Objection Certificate (for short NOC)granted over four years ago, has challenged the order contained in letter no. 1757 dated 17th July, 2002 issued by Jharkhand StatePollution Control Board (J.S. Pollution Control Board for short).

The NOC earlier granted to the petitioner has been withdrawn and cancelled in pursuance of letter No. 103-22/ EPE dated 18thJune, 2002 issued from the Ministry of Environment and Forests, Eastern Regional Office, Government of India, New Delhi. Theaforesaid letter dated 18th June, 2002 has also been challenged by the petitioner.

2. The case of petitioner is that it entered into an agreement with the Coal India Limited (for short C.I.L) on 11th January, 1995 forsetting up captive power plant, on Build-Own-Operate Basis at Mad-huband Washery of Bharat Coking Coal Limited, Dhanbad (forshort BCCL). As per the agreement, petitioner is to supply power to Madhuband Washery Areas, at Bagh-maro in the district ofDhanbad (now in the State of Jharkhand).

The land for the power plant was provided by BCCL, a subsidiary of C.I.L. As per the agreement, petitioner had to arrange finance,design and procure, install, operate and maintain fluidized bed combustion boiler based, Thermal Power Plant along with various otherequipments of the power plant.

Further case of petitioner is that the plant based on fluidized bed combustion technology is a latest technology which isenvironmental friendly. The actual cost of the project as installed is about Rs. 80 crores.

After signing of the agreement and acquiring land, the petitioner vide its application No. 284, dated 26th August, 1997 applied to theBihar State Pollution Control Board (for short B.S. Pollution Control Board) for obtaining NOC Under Sections 25 and 26 of the Water(Prevention and Control of Pollution) Act. 1974 (for short Act, 1974) and Under Section 21 of the Air (Prevention and Control ofPollution) Act, 1981 (for short Act, 1981) for setting up 1 x 10 MW Captive Power Plant at Madhuband. NOC Under Sections 25 and26 of the Act, 1974 and Under Section 21 of Act, 1981 was issued by the B.S. Pollution Control Board to the petitioner videReference no. T- 1975 dated 25th March, 1998. On the basis of NOC dated 25th March, 1998 granted by B.S. Pollution ControlBoard, the petitioner went ahead with the setting up of the Power Plant and made huge investment of about Rs. 80 crores in theproject. It has erected, tested and the plant has already been commissioned in the month of September, 2002 itself.

According to petitioner, it came as a shock to receive letter dated 17th July, 2002 from J.S. Pollution Control Board stating that theNOC granted by B.S. Pollution control Board dated 25th March, 1998 has been cancelled on the plea that NOC was granted withoutconducting public hearing which is inconsistent with S.O. No. 319 (E), dated 10th April, 1997. The petitioner has been asked to geta fresh environmental clearance before start of construction activity and has been directed to stop all activities such as siteclearance.

The cancellation of NOC seems to have been done on the direction of 4th respondent-Union of India vide letter dated 18th June,2002.



2002.

3. Further, according to petitioner, the respondents failed to appreciate the fact that construction and erection of plant had alreadybeen carried out after obtaining NOC and the same has already been completed and commissioned after huge investment of Rs. 80crores.

It has been alleged that the NOC has been cancelled in pursuance of an order dated 18th June, 2002, communicated vide letterdated 17th July, 2002 without issuing any show cause notice to the petitioner and without taking into consideration the relevantfact that the plant has already been commissioned and all the construction activities were complete.

4. Counsel for the petitioner referred to para-18 of the writ petition to suggest that the B.S. Pollution Control Board granted theNOC taking into consideration the relevant documents, as mentioned here under :

"(i) The facts stated in their Application and Project report.

(ii) Bihar State Pollution Control Board's Notification no. 45 dated 8-11-1995.

(iii) Provision of related Water and Air Acts.

(iv) Check list dated 23-10-1997.

(v) The related NOC Committee's decision of 6-3-1998."

It was submitted that the B.S. Pollution Control Board having issued NOC after following all the procedures, it was not open for J.S.Pollution Control Board to reopen the Issue after about four years.

Apart from the allegation of violation of rules of natural justice, it was pleaded that the Doctrine of Promissory Estoppel debars, therespondents from backing out of its commitment made by it in the course of performance of its statutory duties. The petitionerhaving made huge investment of over Rs. 80 crores in setting up and erecting the power plant pursuant to. NOC dated 25th March,1998, the respondents cannot back out at this stage. If the NOC would not have been issued by B.S. Pollution Control Board, thenthe petitioner would not have invested any amount, much less huge amount of Rs. 80 crores on setting up of the power plant.

5. Counsel for the petitioner relied on the decision of the Supreme Court in "Guj-rat State Financial Corporation v. Lotus Hotels Pvt.Ltd.", reported in AIR 1983 SC 848 and the case of "M.P. Sugar Mills v. State of U.P." reported in AIR 1979 SC 621.

6. The respondents have not controverted that the petitioner applied and after due enquiry, the B.S. Pollution Control Board grantedNOC to set up 1 x 10 MW captive power plant at Madhuband vide Memo no. T-1975-Patna dated 25th March, 1998.

The following Stand has been taken by the respondent J.S. Pollution Control Board

"That the Additional Director (s), Government of India, Ministry of Environment, Forest, Eastern Regional Office, A/3,Chandrasekharpur, Bhubaneshwar by letter no. 133-22/EPE. dated 18th June, 2002 requested that the project activities of theconstruction of Thermal power plant by the petitioner M/s. D.L.F. adjacent to Madhuban Washery of M/s. B.C.C.L. be stopped andthe "No Objection Certificate" accorded to the petitioner be withdrawn with a direction not to initiate any activity preliminary orotherwise at the site without obtaining "No Objection Certificate" from the Ministry of Environment and Forests, Government of India,New Delhi.

The reason assigned by the respondent no. 4 in the instant letter is that as per S.O. no. 319 (E) dated 10.04.1997, the ThermalPower Plant proposed to be located within the radius of 25 KM of Reserve Forest and critically polluted area shall requireenvironmental clearance from the Central Government. It was informed to the Respondent no. 4 that the State Pollution ControlBoard, Bihar has granted "No Objection Certificate" for the petitioner's project. The project is attracting the provisions ofEnvironmental Impact Assessment Notification 1994 and amendments thereof are required to get "No Objection Certificate" after thePublic hearing conducted by the Pollution Control Board. The No Objection Certificate is given on the condition that theenvironmental clearance from the Ministry of Environment, and Forests should be obtained. The above project is going ahead withconstruction activities without complying with the provision of Environment (Protection) Act, 1986. The project is located in thecritically polluted area, the site clearance and environmental clearance from the Ministry of Environment and forest is mandatory.

That the notification of Government of India in the Ministry of Environment and Forest No. S.O. 60 (E), dated the 27th January,1994 in relation to the Thermal Power Plants specified in Schedule-I annexed to this notification lays down that in exercise ofpowers conferred by Sub-section (1) and Clause (V) of Sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 (29

of 1986) read with Clause (9) of sub-rule (3) of Rule 5 of Environment (Protection) Rules, 1986, has directed that on and from thedate of publication of this notification in the official gazette, expansion of modernization of any activity (if pollution load is to exceedthe existing one) shall not take place or a new project listed in Schedule-I of this notification shall not be undertaken in any pan ofIndia unless it has been accorded environmental clearance by the Central Government in accordance with the procedure specified inthis notification.

The Thermal Power Plant have been listed as serial no. 19 in the Schedule-I of this notification.

That S.O. 319 (E) of the Environment Impact Assessment in relation to the Thermal Power Plant notification, New Delhi, the 10thApril, 1997, lays down that the power conferred upon the Central Government by Sub-section (1) of Section 3 of the said Act totake measures for protecting and improving the quality of Environment and Preventing controlling and abating environmental pollutionbe exercisable by the State Government as notified in the notification of the Government of India in the Ministry of Environment andForest No. 60 (E), dated 27th January, 1994 in relation to the Thermal Power Plants specified in Schedule-I annexed to thisnotification subject to the conditions and limitations specified in Schedule-II annexed to this notification.

That it has been further mentioned in the "Note" of Schedule-I that any project proposed to be located within the radius of TwentyFive Kilometer of a reserved forest an ecologically sensitive area which may include National Park, Sanctuaries, Biosphere Reservoir,Critically Pollution area within fifty Kilometers of Inter State boundary shall require environment clearance from the CentralGovernment."

Similar plea has been taken by the 4th respondent-Union of India.

7. The petitioner has disputed the fact that the power plant has been set up and is operated within 25 Kms. of forest, or critically



7. The petitioner has disputed the fact that the power plant has been set up and is operated within 25 Kms. of forest, or criticallypollution area.

8. In the present case, the respondents have not disputed the allegation that before cancellation of NOC, the petitioner was neithernoticed, nor heard.

The principle of audi alteram partem is the basic concept of the principal of natural justice. Even in the field of administrative action,this principle requires to be applied to ensure fair play and Justice.

The NOC was granted to petitioner Under Sections 25 and 26 of Act, 1974 by the B.S. Pollution Control Board. Under section 27 ofAct, 1974, though it was open to the State Board to review from time to time any condition imposed Under Sections 25 and 26 ofthe Act, 1974, even in such case, the State Board is required to serve a notice for revoking any such condition.

9. The respondents have not disputed the fact that the petitioner has invested more than Rs. 80 crores and has already erected,set up and commissioned the plant. However, it is not clear whether the place where captive power plant has been set up bypetitioner (Madhuband) is within the radius of 25 Kms. of reserve forest or critically polluted area or not and thereby requiresenvironmental clearance from Central Government. In fact, the aforesaid question of fact should have been decided by therespondents prior to withdrawal/ cancellation of NOC after notice and hearing the petitioner.

10. For the reasons aforesaid, the Court has no option but to set aside both the orders contained in letter dated 18th June, 2002issued by the 4th respondent and the letter dated 17th July, 2002 issued by the 3rd respondent. They are, accordingly, set aside.

Liberty is given to the respondents to decide the aforesaid issue, namely, whether captive power plant is located within the radiusof 25 Kms of reserve forest or critically polluted area and thereby environmental clearance from the Ministry of Environment andForests, Government of India is required or not.

If the respondents intend to decide the aforesaid issue, will notice the petitioner and decide after hearing it.

If it is decided that the captive power plant is located within the radius of 25 Kms. of reserve forest or critically polluted area andthereby requires environmental clearance from the Central Government, the Central Government, in such case, will do needful takinginto consideration the fact that the petitioner only because of grant of NOC by B.S. Pollution Control Board, has already set up aplant and has already invested about a sum of Rs. 80 crqres and the project is for the benefit of M/s. B.C.C.L., a Government ofIndia Undertaking.

11. The writ petition is allowed, with the aforesaid observations. However, there shall be no order, as to costs.

Balram Kumawat Vs. Union of India(UOI) and Ors.Decided On: 27.08.2003

Civil Appeal Nos. 7536 and 7537 of 1997

Hon'ble Judges: V.N. Khare, C.J., S.B. Sinha and Arun Kumar, JJ.

Catch Words: Civil Appeal, Common Judgment, Conventions, Endangered Species, International Trade, Interpretation of Statute, Judicial review,Negotiable Instrument, Public Health, Public Interest, Reasonable Restriction, Strict Construction, Taxing Statute, Void forUncertainty

Acts/Rules/Orders: Wild Life (Protection) Act, 1972 - Section 49C(7); Wild Life (Protection) (Amendment) Act, 1991; Constitution of India - Articles 14,19, 48A and 51A; Prevention of Corruption Act, 1947; Prevention of Food Adulteration Act, 1954; Customs Act, 1962 - Section 135and 135(1); Indian Penal Code - Section 489A; Foreign Exchange Regulation Act, 1947 - Section 12(2); Companies Act, 1956 -Section 630(1); Copy Right Act, 1957 - Section 52A; Negotiable Instruments Act, 1881 - Section 138

Prior History: From the Judgment and Order dated 20.3.97 of the Delhi High Court in W.P. No. 1964 of 1993

Case Note: Environment � Wildlife (Protection) Act, 1972 � Section 49C(7) � Appellants had imported fossil - Rule of strictconstruction of regulatory or penal statute may not be adhered to in case of legislations made to combat crimes ofspecial nature � Trade in elephant ivory is completely banned � Power conferred on a higher authority could raise apresumption that he would be conscious about his duties and obligations � Appeal dismissed

JUDGMENT

1. Whether 'mammoth ivory' imported in India answers the description of the words 'ivory imported in India' contained in Wild Life(Protection) Act, 1972 (hereinafter referred to as 'the said Act') as amended by Act No. 44 of 1991 is the question Involved in theseappeals which arise out of a common judgment and order dated 20.3.1997 passed by a Division Bench of the Delhi High Court.

Fact of the case

2. The appellants M/s Unigems had imported mammoth fossil said to be of an extinct species in the year 1937. The stock ofmammoth fossil held by the appellants is said to be periodically checked by the statutory authorities. The appellant in the other caseBalram Kumawat is a carver.

3. Mammoth is said to be pre-historic animal which disappeared due to climatic conditions prevailing in Alaska and Siberia. Accordingto the appellants the distinction between mammoth and elephant ivory is that whereas mammoth belongs to an extinct species, theIvory of elephant is of an extant living animal. The appellants state that mammoth ivory is distinguishable by visual and non-destructive means vis-a-vis elephant ivory and even in convention on International Trade in Endangered Species (CITES) theirdistinguishing features have been pointed out.

SUBMISSIONS :

4. Mr. Sanghi and Mr. Parikh, the learned counsel would contend that trade in mammoth fossil ivory is not banned either under the



4. Mr. Sanghi and Mr. Parikh, the learned counsel would contend that trade in mammoth fossil ivory is not banned either under thesaid Act or under the CITES and, thus, the impugned judgment of the High Court cannot be sustained,

5. The learned counsel would take us through the history of CITES as mentioned in 'the impugned judgment of the High Court andwould urge that the purport and object of the Act cannot be sub-served by placing a ban on trade in mammoth Ivory. Taking us tothe provisions of the said Act, the learned counsel would argue that as mammoth ivory does not answer the description of 'wildanimal', the provisions contained in Chapter VA of the said Act would not be attracted.

6. As Mammoth is an extinct species and as what is being used for carving is its fossil which is called ivory, because it has white andhard dentine substance which is also available in other animals, namely, Whale, Walrus, Hippos and warthog; it was urged, theycannot be included in the term 'ivory' within the meaning of the provisions, of the said Act.

7. It was contended that the High Court committed a manifest error in passing the impugned judgment insofar as it failed to takeinto consideration that mammoth ivory being deceptively similar to elephant ivory to the naked eye, the impugned Act would beapplicable in relation thereto also. The learned counsel would contend that if this is taken to its logical conclusion, then even tradein plastic articles which would be deceptively similar to elephant ivory may also be held to have been banned. It was argued thatthe intention of the Legislature cannot be to ban any article irrespective of the purport and object it seeks to achieve only on theground that the same is deceptively similar to the banned item. There exists scientific procedure, it was urged, whereby and

whereunder mammoth ivory can be distinguished from elepnant ivory and with a view to buttress the said argument, a large numberof literature had been placed before us.

8. The preamble of the Act as also the 'Headings', the learned counsel would contend, should be taken into consideration for thepurpose interpreting the provisions of the said Act.

FINDINGS :

9. In the connected matter in Indian Handicrafts Emporium and Ors. v. Union of India and Ors. (Civil Appeal No. 7533 of 1997)disposed of this date, this Court upheld the constitutional validity of the provisions of the said Act. This Court held that in terms ofSub-section (7) of Section 49-C of the Act all persons in general and traders in particular have become disentitled from keeping intheir control any animal article including ivory imported in India.

10. This Court further held that as a logical corollary to the said finding, the statutory authorities would be entitled to takepossession of such ivory in terms thereof; the purport and object of the Act being to impose a complete ban on trade in Ivory. Acomplete prohibition has been imposed in the trade of ivory (whether imported in India or extracted by killing Indian elephants) forthe purpose of protecting the endangered species. Trade in ivory imported in India has been prohibited further with a view to giveeffect to the provisions contained in Article 48A as also Article 51A(g) of the Constitution of India.

11. Why despite passage of time the trade in stock could not be disposed of within a period of four years has not been disclosed bythe appellants. It is not in dispute that even in terms of Act 44 of 1991, six months' time was granted for disposing the stock ofivory.

12. For the reasons - stated hereinafter, it may not be necessary for us to go into the question as to whether scientificallymammoth ivory can be deciphered from elephant ivory.

13. What has been banned is ivory. There is complete prohibition of trade in ivory. Such a complete prohibition is a reasonablerestriction within the meaning of Clause (6) of Article 19 of the Constitution of India. The impugned Act being not unreasonable doesnot also attract the wrath of Article 14 of the Constitution of India.

14. For the purpose of determination of the question, we need to consider only the dictionary meaning of the term 'ivory'.Commercial meaning or technical meaning of an object or article is required to be taken recourse to when the same is necessary forthe purpose of meeting the requirements of law. The law in no uncertain terms says that no person shall trade in ivory. It does notsay that what is prohibited is trade in elephant ivory or either types of ivory. The purport and object of the Act, as noticed in thejudgment in Indian Handicrafts Emporium (supra), is that nobody can carry on business activity in imported ivory so that while doingso, trade in ivory procured by way of poaching of elephants may be facilitated. The Parliament, therefore, advisedly used the word'ivory' instead of elephant ivory. The intention of the Parliament in this behalf, in our opinion, is absolutely clear and unambiguous.we cannot assume that the Parliament was not aware of existence of different types of ivory. If the intention of the Parliament wasto confine the subject matter of ban under Act 44 of 1993 to elephant ivory, it would have said so explicitly.

15. As noticed hereinbefore, the object of the Parliament was not only to ban trade, in imported elephant ivory but ivory of everydescription so that poaching of elephant can be effectively restricted. An article made of plastic would by no means resemble ivory.

16. In the Shorter Oxford Dictionary, the meaning of 'ivory', is stated as under:

(i) The hard, white, elastic and fine grain substance (being dentine of exceptional hardness) composing the main part of the tusks ofthe elephant, mammoth(fossil)...

(ii) A substance resembling ivory or made in imitation of it.

17. In Collins English Dictionary, 'ivory' has been defined as:

(i) A hard smooth creamy white variety of dentine that makes up a major part of the tusks of elephants, walruses, and similaranimals.

(ii) A tusk made of ivory.

(iii )A yellowish-white colour; cream

(iv) A substance resembling elephant tusk.

(Emphasis supplied)

18. 'Ivory', therefore, even as per dictionary meaning is not confined to elephant ivory.



18. 'Ivory', therefore, even as per dictionary meaning is not confined to elephant ivory.

19. At this stage, we are not concerned with a criminal trial. The appellants are not being proceeded against in a criminal case.Their civil rights, if any, are only required to be dealt with. The appellants in these matters complain of civil injuries only.

20. Contextual reading is a well-known proposition of interpretation of statute. The clauses of a statute should be construed withreference to the context vis-a-vis the other provisions so as to make a consistent enactment of the whole, statute relating to thesubject-matter. The rule of 'ex visceribus actus' should be resorted to in a situation of this nature.

21. In State of West Bengal v. Union of India [AIR 1963 SC 1241 at p. 12853, the learned Chief Justice stated the law thus :

"The Court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed butto the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to beinterpreted occurs."

22. The said principle has been reiterated in R.S. Rashunath v. state of Karnataka and Anr. [AIR 1992 SC 81 at p. 89].

23. Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always begiven effect to. The law would have to be interpreted having regard to the subject matter of the offence and the object of the lawit seeks to achieve. The purpose of the law is not to allow the offender to sneak out of the meshes of law. Criminal Jurisprudencedoes not say so.

24. G.P. Singh in his celebrated treatise 'Principles of Statutory Interpretation' distinguished between strict construction of penalstatutes which deals with crimes of aggravated nature vis-a-vis the nature of the activities of the accused which can be checkedunder the ordinary criminal law stating :

"In Joint Commercial Tax Officer, Madras v. YMA, Madras, SHAH, J. observed "In a criminal trial or a quasi-criminal proceeding, thecourt is entitled to consider the substance of the transaction and determine the liability of the offender. But in a taxing statute thestrict legal position as disclosed, by the form and not the substance of the transaction is determinative of its taxability," With greatrespect the distinction drawn by SHAH, J. does not exist in law. Even in construing and applying criminal statutes any reasoningbased on the substance of the transaction is discarded.

But the application of the rule does not permit the court in restraining comprehensive language used by the Legislature, the widemeaning of which is in accord with the object of the statute. The principle was neatly formulated by LORD JUSTICE JAMES whospeaking for the Privy Council seated : "No doubt all penal statutes are to be construed strictly, that is to say, the court must seethat the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notionthat there has been a slip; that there has been a casus omissus; that the thing is so clearly within the mischief that it must havebeen included if thought of. On the other hand, the person charged has a right to say that the thing charged although within thewords, is not within the spirit of the enactment. But where the thing is brought within the words, and within the spirit, there a penalenactment is to be construed, like any other instrument, according to fair commonsense meaning of the language used, and thecourt is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity would clearlynot be found or made in the same language in any other enactment." The above formulation has been cited with approval by theHouse of Lords and the Supreme Court. In the last-mentioned case, SUBBARAO, J., referring to the Prevention of Corruption Act,1947, observed : "The Act was brought in to purify public administration. When the Legislature used comprehensive terminology - toachieve the said purpose, it would be appropriate not to limit the content by construction when particularly the spirit of the statuteis in accord with the words used there." Similarly, the Supreme Court has deprecated a narrow and pedantic construction of thePrevention of Food Adulteration Act, 1954 likely to leave loopholes for the adulterator to escape. And on the same principle thecourt has disapproved of a narrow construction of Section 135 of the Customs Act, 1962, Section 489A of the Penal Code, Section12(2) of the Foreign Exchange Regulation Act, 1947, Section 630(1)(b) of the Companies Act, 1956. Section 52A of the Copy RightAct, 1957, and Section 133 of the Negotiable Instruments Act, 1831, So, language permitting a penal statute may also be construedto avoid a lacuna and to suppress the mischief and advance the remedy in the light of the rule in Heydon's case. Further, acommonsense approach for solving a question of applicability of a penal enactment is not ruled out by the rule of strict construction.In State of Andhra Pradesh v. Bathu Prakasa Rao, rice and broken rice were distinguished by applying the commonsense test that at

least 50% must be broken in order to constitute what could pass off as marketable 'broken rice' and any grain less than 3/4th of thewhole length is to be taken as broken.

The rule of strict construction does not also prevent the court in interpreting a statute according to its current meaning andapplying the language to cover developments in science and, technology not known at the time of passing of the statute. Thuspsychiatric injury caused by silent telephone calls was held to amount to 'assault' and 'bodily harm' under Sections 20 and 47 of the

Offence Against the Person Act, 1861 in the light of the current scientific appreciation of the link between the body and psychiatricinjury."

25. (See also Lalita Jalan and Anr. v. Bombay Gas Co. Ltd. and Ors. reported in 2003 (4) SCALE 52).

26. A statute must be construed as a workable instrument. Ut res magis valeat quam pereat is a well-known principle of law. InTinsukhia Electric Supply Co. Ltd. v. State of Assam [AIR 1990 SC 123], this Court stated the law thus :

"The courts strongly lean against any construction, which tends to reduce a statute to a futility. The provision of a statute must beso construed as to make it effective and operative, on the principle "ut res magis valeat quam pereat". It is, no doubt, true that if astatute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void forvagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a courtof construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning andpurpose which the legislature intended for it. In Manchester Ship Canal Co. v. Manchester Racecourse Co. ((1900) 2 Ch 352, FarwellJ. said : (pp. 360-61)

"Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning andnot to declare them void for uncertainty."

In Fawcett Properties Ltd. v. Buckingham County Council ((1960) 3 All ER 503) Lord Denning approving the dictum of Farwell, J. said:

"But when a Statute has some meaning, even though it is obscure, or several meanings, even though it is little to choose betweenthem, the courts have to say what meaning the statute to bear rather than reject it as a nullity."



them, the courts have to say what meaning the statute to bear rather than reject it as a nullity."

It is, therefore, the court's duty to make what it can of the statute, knowing that the statutes are meant to be operative and notinept and that nothing short of impossibility shou1d allow a court to declare a statute unworkable. In Whitney v. Inland RevenueCommissioners (1928 AC 37) Lord Dunedin said :

"A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucialomission or clear direction makes that end unattainable."

27. The Courts will therefore reject that construction which will defeat the plain intention of the Legislature even though there maybe some inexactitude in the language used. [See Salmon v. Duncombe [(1886) 11 AC 827 at 634]. Reducing the legislation futilityshall be avoided and in a case where the intention of the Legislature cannot be given effect to, the Courts would accept the bolderconstruction for the purpose of bringing about an effective result. The Courts, when rule of purposive construction is gainingmomentum, should be very reluctant to hold that the Parliament has achieved nothing by the language it used when it is tolerablyplain what it seeks to achieve. (See BBC Enterprises v. Hi-Tech xtravision Ltd., (1990) 2 All ER 118 at 122-3)

28. In Mohan Kumar Singhania and Ors. v. Union of India and Ors. [AIR 1992 SC 1], the law is stated, thus :

"We think, it is not necessary to proliferate this judgment by citing all the judgments and extracting the textual passages from thevarious textbooks on the principles of Interpretation of Statutes. However, it will suffice to say that while interpreting a statute theconsideration of inconvenience and hardships should be avoided and that when the language is clear and explicit and the words usedare plain and unambiguous, we are bound to construe them in their ordinary sense with reference to other clauses of the Act orRules as the case may be, so far as possible, to make a consistent enactment of the whole statute or series ofstatutes/rules/regulations relating to the subject matter, Added to this, in construing a statute, the Court has to ascertain theintention of the law making authority in the backdrop of the dominant purpose and the underlying intendment of the said statute andthat every statute is to be interpreted without any violence to its language and applied as far as, its explicit language admitsconsistent with the established rule of interpretation."

29. In Murlidhar Meghraj Loya v. State of Maharashtra [(1976) 3 SCC 684] white dealing with the provisions of Food Adulteration Actit was stated :

"5. It is trite that the social mission of food laws should inform the interpretative process so that the legal blow may fall on everyadulterator. Any narrow and pedantic, literal and lexical construction likely to leave loopholes for this dangerous criminal tribe tosneak out of the meshes of the law should be discouraged. For the new criminal jurisprudence must depart from the old canons,which make indulgent presumptions and favoured constructions benefiting accused persons and defeating criminal statutescalculated to protect the public health and the nation's wealth."

30. In State of U.P. v. Chandrika [(1999) 8 SCC 638], this Court held that in matters involving economic crime, food offence and

other cases, the doctrine of plea bargaining should not be applied. While holding so it referred with approval Madanlal RamchandraDaga v. State of Maharashtra [AIR 1968 SC 1267 = (1968) 3 SCR 34], Murlidhar Meghraj Loya (supra), Ganeshmal Jashraj v.Government of Gujarat [(1980) 1 SCC 363], Thippaswamy v. State of Karnataka [(1983) 1 SCC 194] and KasambhaiAbdulrehmanbhai Sheikh v. State of Gujarat [(1980) 3 SCC 120].

31. Yet again in Superintendent and Remembrancer of Legal Affairs to Govt. of West Bengal v. Abani Maity [AIR 1979 SC 1029:(1979) 4 SCC 35] the law is stated in the following terms:

"19. Exposition ex visceribus actus is a long recognised rule of construction, Words in a statute often take their meaning from thecontext of the statute as a whole. They are therefore, not to be construed in isolation. For instance, the use of the word "may"would normally indicate that the provision, was not mandatory. But in the context of a particular statute, this word may connote alegislative imperative, particularly when its construction in a permissive sense would relegate it to the unenviable position, as itwere, "of an ineffectual angel beating its wings in a luminous void in vain". "If the choice is between two interpretations", saidViscount Simon L. C. in Nokes v. Doncaster Amaigamated Collieries, Ltd. ((1940) AC. 1014, 1022) "the narrower of which would failto achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility andshould rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringingabout an effective result. "

32. This decision was followed in State of Karnataka and Ors. v. Saveen Kumar Shetty [(2002) 3 SCC 426].

33. In State of Himachal Pradesh v. Pirthi Chand and Anr. [(1996) 2 SCC 37], this Court while dealing with a case of contrabandarticle following amongst others in Abani Maity (supra) stated :

"It would be seen that the organised traffic in contraband generates deleterious effect on the national economy affecting the vitalsof the economic life of the community. It is settled law that illegality committed in investigation does not render the evidenceobtained during that investigation inadmissible. In spite of illegal search property seized, on the basis of said search, it still wouldform basis for further investigation and prosecution against the accused. The manner in which the contraband is discovered mayaffect the factum of discovery but if the factum of discovery is otherwise proved then the manner becomes immaterial."

34. The said principle has been reiterated in Khet Singh v. Union of India [(2002) 4 SCC 380] stating :

"Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, theevidence collected: thereby will not become inadmissible and the court would consider all the circumstances and find out whetherany serious prejudice had been caused to the accused."

35. In State of Maharashtra v. Natwarlal Damodardas Soni [AIR 1980 SC 593: (1980) 4 SCC 669] this Court was concerned withsearch and seizure of gold under the Customs Act and the Defence of India Rules. The Court was dealing with smuggling of gold intoIndia affecting the public economy and financial stability of the country and in that context the Court applied the Mischief Rule.While interpreting the words 'acquires possession' or 'keeping' in Clause (b) of Section 135(1) of the Customs Act, this Courtobserved that they are not to be restricted to 'possession' or 'keeping' acquired as an owner or a purchaser of the goods observing :

"Such a narrow construction - which has been erroneously adopted by the High Court - in our opinion, would defeat the object ofthese provisions and undermine their efficacy as instruments for suppression of the mischief which the legislature had in view.Construed in consonance with the scheme of the statute, the purpose of these provisions and the context, the expression "acquires



Construed in consonance with the scheme of the statute, the purpose of these provisions and the context, the expression "acquirespossession" is of very wide amplitude and will certainly include the acquisition of possession by a person in a capacity other than asowner or purchaser. This expression takes its colour from the succeeding phrase commencing with the word "or", which is so widelyworded that even the temporary control or custody, of a carrier, remover, depositor, harbourer, keeper or dealer of any goods whichhe knows or has reason to believe to be smuggled goods or prohibited goods (liable to confiscation under Section 111), cannotescape the tentacles of Clause (b). The expressions "keeping" and "concealing in the second phrase of Clause (b) also cover thepresent case."

36. This Court while setting aside a judgment of acquittal passed in favour of the Respondents therein on the basis of theinterpretation of the Customs Rules observed;

"The High Court has held that those rules do not apply because the accused respondent had not acquired possession of these goldbiscuits by purchase or otherwise within the meaning of these rules. Such a narrow construction of this expression, in our opinion,will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. As was pointed out by thisCourt in Balkrishna Chhaganlal v. State of West Bengal (AIR 1974 SC 120), Rule 126-P(2)(ii) pena1ises a person who has in hispossession or under his control any quantity of gold in contravention of any provision of this Part, and the court cannot cut back onthe width of the language used, bearing in mind the purpose of plenary control the State wanted to impose on gold, and exemptsmuggled gold from the expression "any quantity of gold" in that sub-rule. These provisions have, therefore, to be specially

construed in a manner which will suppress the mischief and advance the object which the legislature had in view. The High Courtwas in error in adopting too narrow a construction which tends to stultify the law. The second charge thus had been fullyestablished against the respondent."

37. These decisions are authorities for the proposition that the rule of strict construction of a regulatory/penal statute may not beadhered to, if thereby the plain intention of the Parliament to combat crimes of special nature would be defeated.

38. We are, however, not oblivious of the fact that potential public mischief cannot be a around to invoke the court's Interpretativerole to make a new offence. Making of legislation is not the job of the judiciary. Making of a penal legislation by the Judiciary isstrictly out of its bound. However, when the law working in the field is clear then what is necessary for it is to find out as towhether any offence has been created or not. Once it is held that the subject matter comes within the purview of the law, theCourt may not go further and say by interpretive reasonings that the same is not so created.

39. We do not think that in a case of this nature where the principles of law as enunciated hereinbefore as also the doctrine ofpurposive construction, which have been discussed in details in India Handicraft Emporium (supra), any useful purpose would beserved by referring to a large number of decisions relied upon by Mr. Parikh as regards efficacy of referring to the preamble of astatute or its heading, in view of the well-settled principles of law that where plain and dictionary meaning can be given, referenceto preamble or a heading may not be of much use. The submission of Mr. Parikh that in a case of this nature a restrictive meaningshould be attributed to the word 'ivory' cannot be acceded to inasmuch as, in our opinion, the dictionary meaning should be adheredto for the purpose of giving effect to the purport and object of the Act.

40. It is no doubt true that normally a technical meaning should be attributed rather than a common meaning to a word if the samerelates to a particular trade, business or profession, art or science or words having a special meaning as has been held in Union ofIndia v. Garware Nylons Ltd. [AIR 1396 SC 3509 and Unwin v. Hanson [1331 (2) QB 115]. But we are not dealing with anordinary/taxing statute. We are dealing with a law which has been enacted in larger public interest and in consonance with Articles48A and 5lA(g) of the Constitution of India as also International Treaties and Conventions.

41. As pointed out hereinbefore, the Parliament has enacted the Amending Acts of 1986, 1991 and 2003 not only for the purpose ofbanning a trade in elephant ivory but with a view to create a blockade of the activities of poachers and others so that a completeprohibition in trade in ivory is achieved. By reason of the Amending Acts, the Parliament was anxious to plug the loop-holes andimpose a ban on trade in ivory so that while purporting to trade in imported ivory and carvings therefrom, poaching of Indianelephants and resultant illegal trade by extracting their tusks may not continue.

42. The submission of Mr. Parikh that the doctrine of proportionality should be applied in a case of this nature cannot also beacceded to.

43. In Om Kumar and Ors. v. Union of India [(2001) 2 SCC 386], to which a pointed reference has been made, this Court made adistinction between the primary and secondary review of administrative orders. As indicated in Indian Handicraft Emporium (supra),this Court while construing the provisions of the Act vis-a-vis restrictions imposed in terms of Clause (6) of Article 19 of theConstitution of India has come to the conclusion that the provisions of the Amending Acts satisfy even the strict scrutiny test. InOm Kumar (supra), this Court pointed out that the area of discretion of administrator would vary in different situations stating :

"While the courts' level of scrutiny win be more in case of restrictions on fundamental freedoms, the courts give a large amount ofdiscretion to the administrator in matters of high-level economic and social policy and may be reluctant to interfere : (R. v. Secy ofState for the Environment, ex p Nottinghamshire County Counci1 (1986 AC 240 : (1986) 1 All ER 193 : (1386) 2 WLR 1 (HL)); R. v.Secy, of State for Environment, ex p Hammersmith and Fulham London Borough Council ((1951) 1 AC 521 : (1990) 3 All ER 589 :(1990) 3 WLR 898) (AC at p. 537), Smith speaks of "variable margin of appreciation". The new Rule 1 of the Civil Procedure Rules,1939 permits the courts to apply "proportionality" but taking into account the financial issues, complexities of the matter and thespecial facts of the case."

44. In Papanasam Labour Union v. Madura Coats [(1995) 1 SCC 501] whereupon Mr. Parikh has placed reliance, this Court held thatwhile a power has been conferred upon a higher authority, a presumption can be raised that he would be conscious of its duties andobligations and so would act promptly and reasonably.

45. There is also no quarrel on the proposition of law laid down therein for the purpose of judging the constitutionality of thestatutory provisions in the light of Article 19 of the Constitution of India. The impugned acts fulfill the said criteria.

46. For the reasons aforementioned? we are of the opinion that the impugned judgment cannot be faulted. Accordingly, the appealsare dismissed but without any order as to costs.

Indian Handicrafts Emporium and Ors. Vs. Union of India (UOI) and Ors.Decided On: 27.08.2003

Civil Appeal Nos. 7533, 7534 and 7535 of 1997 and W.P. (C) No. 35/2003



Civil Appeal Nos. 7533, 7534 and 7535 of 1997 and W.P. (C) No. 35/2003

Hon'ble Judges: V.N. Khare, C.J., Y.K. Sabharwal and S.B. Sinha, JJ.

Catch Words: Conventions, Covenant, Endangered Species, Heritage, International Trade, Judicial Review, National Parks, Property Right, PublicInterest, Purposive Approach, Quota, Reclamation, Statutory Authority, Total Prohibition

Acts/Rules/Orders: Wild Life (Protection) Act, 1972; - Sections 2, 2(2), 2(21), 9, 10, 13, 17, 17H, 22, 29, 38J, 39, 39(1), 40, 40(2), 40(2A), 40(2B),40(4), 41, 42, 44 to 48, 48A, 49, 49B, 49B(1), 49C, 49C(1), 49C(3), 49C(6), 49C(7), 49(7), 50, 51, 51(1A), 51(2), 55, 63 and 64;Constitution of India - Articles 13(1), 14, 19, 19(1), 48A, 51A, 252 and 300A; Wild Life (Protection) (Amendment) Act, 2002;Bombay Prohibition Act, 1949 - Sections 12 and 13; Wild Birds Protection Act, 1887; Wild Birds and Animals (Protection) Act, 1912;Indian Succession Act - Section 118; Industrial Disputes Act, 1947; Maharashtra University of Health Sciences Act, 1998; BombayPublic Trusts Act, 1950; Societies Registration Act, 1860

Cases Referred: Motor General Traders and Anr. v. State of Andhra Pradesh and Ors., (1984) 1 SCC 222; Rattan Arya and Ors. v. State of TamilNadu and Anr., (1986) 3 SCC 385; Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors., (1990) 1 SCC 109; HamdardDawakhana (Wakf) Lal Kuan, Delhi and Anr. v. Union of India and Ors., (1960) 2 SCR 671; Rustom Cavasjee Cooper v. Union of India,(1970) 3 SCR 530; Narender Kumar and Ors. v. Union of India and Ors., [1960] 2 SCR 375; State Maharashtra v. Mumbai UpnagarGramodyog Sang, [1969] 2 SCR 392; Balsara case, 1951 SCR 682, AIR 1951 SC 318, 52 Cri LJ 1361; K.K. Narula v. State of J&K,(1967) 3 SCR 50, AIR 1967 SC 1368; Ramana Dayaram Shetty v. The International Airport, Authority of India and Ors., AIR 1979 SC1628, 1979 (3) SCR 1014; Har Shankar and Ors. v. Dy. Excise and Taxation Commissioner, AIR 1975 SC 1121, (1975) 3 SCR 254;Municipal Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usmanbhai and Anr., AIR 1986 SC 1205, (1986) 2 SCR700; Jyoti Prasad v. Union Territory of Delhi, (1962) 2 SCR 125, AIR 1961 SC 1602; Kapila Hingorani v. State of Bihar, JT 2003 (5) SC1; John Vallamattom and Anr. v. Union of India, JT 2003 (6) SC 37; United States v. Darby, 312 US 100 (1941); D. Saibaba & BarCouncil of India and Anr., JT 2003 (4) SC 435; Welfare Assocn. A.R.P. Maharashtra and Anr. v. Ranjit P. Gohil and Ors., 2003 (2)SCALE 288; Unni Krishnan J.P. and Ors. v. State of Andhra Pradesh and Ors., (1993) 1 SCC 645; State of Bombay v. R.M.D.Chamarbaugwala, 1957 SCR 874, AIR 1957 SC 699; Sakharkherda Education Society v. State of Maharashtra, AIR 1968 Bom LR 690;Andhra Kesari Education Society v. Govt. of A.P., AIR 1987 AP 251, (1984) 1 APLJ 45; Bapuji Educational Assn. v. State, AIR 1968Kant 80; T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; Sodan Singh v. New Delhi Municipal Committee, (1989) 4SCC 155; Islamic Academy of Education and Anr. v. State of Karnataka and Ors., JT 2003 (7) SC 1; Krishna Kumar Narula v. TheState of Jammu and Kashmir and Ors., AIR 1967 SC 1368; Fatehchand's case, AIR 1977 SC 1825; Mansell's case, (1956) C.L.R. 550;Hughes case (1954) 93 C.L.R. 1; Chief Justice of A.P. v. L.V.A. Dikshitulu, AIR 1979 SC 193, (1979) 2 SCC 34; Kehar Singh v. State(Delhi Admn.), AIR 1988 SC 1883, (1988) 3 SCC 609 District Mining Officer v. Tata Iron & Steel Co., JT 2001 (6) SC 183, (2001) 7SCC 358; State of A.P. v. Mc. Dowell Company, AIR 1996 SC 1627; Council of Civil Services Union v. Minister for the Civil Services,1985 AC 374; R. v. Secretary of State for the Home Department Ex-parte Bring, 1991 AC 696; High Court of Gujarat and Anr. v.Gujarat Kishan Mazdoor Panchayat and Ors., (2003) 4 SCC 712; Reserve Bank of India v. Peerless Co., 1987(1) SCC 424; DPP v.Schildkamp, (1971) AC 1; Jones v. Wrotham Park Settled Estates, (1980) AC 74; Kammins Ballrooms Co. Ltd. v. Zenith Investments(Torquay) Ltd., 1971 AC 850 Bangalore Water Supply v. A. Rajappa, AIR 1978 SC 548; Magor & St. Mellons R.D.C. v. NewportCorporation, 1951(2) All ER 839; Hameedia Hardware Stores v. B. Mohan Lal Sowcar, (1988) 2 SCC 513; Punjab Land Developmentand Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors., (1990) 3 SCC 682; S. GopalReddy v. State of Andhra Pradesh, (1996) 4 SCC 596; State of Maharashtra v. Indian Medical Association and Ors., (2002) 1 SCC580; Davies v. Minister of Land, Agriculture and Water Development, [1997] 1 LRC 123; Charan Lal Sahu v. Union of India, (1990) 1SCC 613

Prior History: From the Judgment and Order dated 20.3.97 of the Delhi High Court in C.W.P. No. 1272 of 1992

Case Note: Environment � Constitutionality and validity of amendment Act prohibiting trade in the imported ivory - Wild Life(Protection) Act, 1972 - Sections 2, 2(2), 2(21), 9, 10, 13, 17, 17H, 22, 29, 38J, 39, 39(1), 40, 40(2), 40(2A), 40(2B),40(4), 41, 42, 44 to 48, 48A, 49, 49B, 49B(1), 49C, 49C(1), 49C(3), 49C(6), 49C(7), 49(7), 50, 51, 51(1A), 51(2), 55, 63and 64 - Constitution of India - Articles 13(1), 14, 19, 19(1), 48A, 51A, 252 and 300 - Appellants engaged in the businessof manufacture and sale of articles manufactured from ivory � The prime object for which dealing in ivory imported fromAfrica had been prohibited was to see that while holding the stock, the people may not deal in Indian ivory which may be

procured from illegal killings of Indian Elephant as the Amending Act indirectly seeks to protect Indian Elephant and toarrest their further depletion - By reason of the Amending Act of 2003, the possession of an ivory whether by a trader or aperson is completely banned - Wild Life forms part of our cultural heritage and animals play a vital role in maintainingecological balance - The amendments have been brought for the purpose of saving the endangered species fromextinction as also for arresting depletion in their numbers caused by callous exploitation thereof - Any trader who hasimported ivory legally into India prior to coming into force of the Act No. 44 of 1991, although would not be entitled tocarry on any business or trade in respect thereof, but having regard to the provisions referred to hereinbefore, unless hecommits an offence in relation thereto, the same would not vest in the Government - A trader in terms of a statute isprohibited from carrying on trade and cannot remain in control over the animal article and the logical consequencewherefor would be that he must be deprived of the possession thereof - The possession of the animal article includingimported ivory must, therefore be handed over to the competent authority - In a case of this nature where a statue hasbeen enacted in public interest, restriction in the matter of possession of the property must be held to be implicit - Theappellants have no right to possess the articles in question - .Appeal dismissed

JUDGMENT

1. Applicability of the provisions of the Wild Life (Protection) Act, 1972 is in question in this set of appeals which arise out of acommon judgment and order dated 20.3.1997 passed by a Division Bench of the Delhi High Court. The appellants herein are engagedin the business of manufacture and sale of articles relating to art and craft manufactured from ivory. The appellants herein importedivory from African countries. They have manufactured certain articles out of the same. It is not dispute that the said import hadlegally been made as there did not exist any restriction in that regard.

2. The Wild Life (Protection) Act, 1972 (hereinafter referred to as 'the said Act' for the sake of brevity) was enacted to provide forthe protection of wild animals, birds and plants and for matters connected therewith or ancillary thereto or incidental therewith.



the protection of wild animals, birds and plants and for matters connected therewith or ancillary thereto or incidental therewith.Indian elephant was brought within the purview of Schedule A of the Act on or about 5.10.1977. The Union of India also bannedexport of ivory in the said year.

3. Chapter V of the said Act deals with trade or commerce in wild animals, animal articles and trophies. By Act No. 28 of 1986Chapter V-A was inserted therein whereby and restrictions were imposed on trade or commerce in wild animals, cattle and trophies.By Act No. 44 of 1991, Section 49-C was inserted in Chapter V-A whereby and where-under a total prohibition in trade of importedivory was imposed. The said Act was brought into force by the Government of India by issuing a Notification dated 27.9.1991 witheffect from 2.10.1991. Six months' time had been granted to make the said Act operational, that is to say, until 2.4.1992. Within theaforementioned period, the trader, thus, could dispose of his stock.

4. The appellants herein filed writ petitions before the Delhi High Court, inter alia, questioning the constitutionality and validity of the1991 Amendment Act prohibiting trade in the imported ivory on several grounds. The High Court by an interim order dated 26.3.1992stayed the operation of the Act. The said interim order was, however, vacated on 22.5.1992. The appellants herein did not take anystep to dispose of the imported ivory held in stock by them even during the said period.

5. By reason of the impugned judgment the High Court upheld the vires of the said Act. Against the said judgment the appellants arein appeal before us.

APPELLANTS CONTENTION

6. Mr. G.L. Sanghi, the learned senior counsel appearing for the appellants, would urge that the impugned provisions of the Act areviolative of Article 19(1)(g) of the Constitution of India inasmuch as thereby the right of the appellant to trade in ivory has unjustlybeen prohibited. The learned counsel would submit that restrictions imposed by reason of the said Act being excessive, the samemust be held to be confiscatory in nature. The Amending Act is also ultra vires Article 14 of the Constitution of India, being irrationaland arbitrary. The learned counsel has drawn our attention to the fact that the population of elephants has gone up in severalcountries, e.g., Botswana, South Africa. Namibia and Zimbabwe, and these countries have been permitted by Convention onInternational Trade in Endangered species of Wild Fauna and Flora (for short 'CITES') to deal in ivory subject of course to certainrestrictions. Our attention has further been drawn to the fact that ivory which was placed in Appendix-I of the CITES has now beenplaced in Appendix-II thereof. It was also submitted that ivory collected from dead animals should also be permitted to be dealt in.

7. It was urged that even assuming the Amending Act of 1991 was a valid piece of legislation, in the year 1991 having regard to thesubsequent event viz. increase in the population of Elephant worldwide the same may be held to be ultra vires Article 14 of theConstitution of India. Strong reliance in this behalf has been placed on Motor General Traders and Anr. v. State of Andhra Pradeshand Ors. [(1984) 1 SCC 222], Rattan Arya and Ors. v. State of Tamil Nadu and Anr. [(1986) 3 SCC 385] and Synthetics andChemicals Ltd. and Ors. v. State of U.P. and Ors. [(1990) 1 SCC 109]. The learned counsel would submit that in any event theAmending Act being vague in nature, the same should be held ultra vires Article 14 of the Constitution of India. Reliance in thisconnection has been placed on Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Anr. v. Union of India and ors. [(1960) 2 SCR 671].

8. Mr. Sanghi, would further submit that the ivory which has legally been imported by the appellants herein prior to coming into forceof the 1991 Amendment Act, having not vested in the Government, the appellants should be held to be at liberty to deal therewith.According to the learned counsel ivory having lawfully been imported and the appellants having, thus, been in lawful possessionthereof, there could be no reason as to why they should be deprived of the possession therefrom, particularly having regard to theprovisions of Sub-section (3) of Section 49-C thereof. It was urged that once such a declaration is filed in terms of Sub-section (1)of Section 49-C, the Chief Wild Life Warden should be held to be statutorily obligated to give to the appellants a certificate ofownership in respect of the entire stock-in-trade, entitling them to transfer the same to any person whether by way of gift, sale orotherwise, as is provided under Sub-section (6) thereof. The learned counsel would argue that there does not exist any provision inthe said Act for payment of compensation and as the property vests in the Government only on certain conditions, the appellantsherein cannot be dispossessed therefrom without any authority of law and in that view of the matter, the impugned provisions mustbe held to the ultra vires Article 300A of the Constitution. Sub-section (7) of Section 49-C, Mr. Sanghi would submit, must beconstrued so as to uphold the right of property of the appellants in the property as otherwise the same would be renderedunconstitutional.

9. According to the learned counsel, the Parliament amended the Act by way of Act 16 of 2003, in terms of whereof Section 40Awas inserted enabling the holders of stock of ivory to file a fresh declaration. The learned counsel would contend that having regardto the fact that the appellants are prohibited from carrying on any trade or business in ivory, for all intent and purport, they shouldbe held to be covered by the aforementioned provisions. In any event, the learned counsel would contend that the guidelines issuedby the respondent must be held to be ultra vires Section 63 of the Act as also the rules framed thereunder, and, thus, the CentralGovernment cannot be said to have any jurisdiction to direct that out of the seized articles, only one item shall be released and therest would be destroyed. Such a power conferred upon the statutory authority being wholly arbitrary as thereby unbridled power hasbeen conferred, the same must also be held ultra vires Article 14 of the Constitution. Mr. Sanghi would urge that the statute cannotbe construed only with reference to its objective sought to be achieved without considering the constitutionality thereof. Strongreliance in this behalf has been placed on Rustom Cavasjee Cooper v. Union of India [(1970) 3 SCR 530].

10. The learned counsel would further submit that the High Court wrongly applied the principle of 'res extra commercium' in theinstant case which is per se inapplicable.

CONTENTIONS OF RESPONDENTS

11. Mr. Malhotra and Mr. Panjwani, learned counsel appearing on behalf of the respondents, on the other hand, would submit thathaving regard the purpose and object, the said Act seeks to achieve, there cannot be any doubt whatsoever that the Parliamenthas the requisite legislative competence. By reason of the provisions of the Amending Act 28 of 1986, trade in various articles hadbeen prohibited, Imported ivory was, however, brought within the purview of Act 44 of 1991. The learned counsel would contendthat a bare perusal of the provisions of the 1986 and 1991 Amending Acts would clearly go to show that the intention of theParliament was that those who carry on trade or business in the imported African ivory should dispose of the same within a period ofsix months i.e. before coming into force thereof whereafter their possession would become illegal, subject, however, to the grant ofcertificate of ownership by the Chief Wild Life Warden in terms of Sub-section (3) of Section 49-C of the said Act. It was submittedthat a trader cannot claim the entire imported ivory or the articles manufactured therefrom to be necessary for his bona fidepersonal use and in that view of the matter the Chief Wild Life Warden has been conferred with a discretionary jurisdiction in relationthereto and only such articles in respect whereof the certificate of ownership is issued, can be subject matter of the transfer interms of Sub-section (6) of Section 49-C of the Act. Any article in respect whereof no certificate of ownership has been granted,would fall within the mischief of Sub-section (7) of Section 49-C. Such a provision, it was urged, must be held to be reasonable as atrader was given sufficient time to dispose of all the articles in his possession.



12. Drawing our attention to the provisions of the Wild Life (Protection) Act, 1972, Mr. Malhotra would submit that the trade andpossession of ivory having been totally prohibited. Even non-traders are not entitled to possess the same in terms of Section 40(2A)of the Act. The learned counsel would further submit that it would not be correct to contend that legislative policy has changed inIndia inasmuch from the minutes of meeting of CITES, it would appear that India and Kenya differed with the proposal of five Africancountries that they be permitted to trade in ivory for any purpose whatsoever. Our attention was further drawn to the fact thativory still is in Appendix-I so far as India is concerned.

STATUTORY PROVISIONS REFFERED:

13. The said Act was enacted to provide for the protection of wild animals, birds and plants and for matters connected therewith orancillary thereto or incidental therewith. Section 2 thereof contains the interpretative provisions. Some of the relevant provisionsare:

2. Definitions.-- In this Act, unless the context otherwise requires,--

[(1) "animal" includes mammals, birds, reptiles, amphibians, fish, other chordates and invertebrates and also includes their young and

eggs;]

(2) "animal article" means an article made from any captive animal or wild animal, other than vermin, and includes an article or objectin which the whole or any part of such animal [has been used, and ivory imported into India and an article made therefrom];

(11) "dealer" in relation to any captive animal, animal article, trophy, uncured trophy, meat or specified plant, means a person, whocarries on the business of buying or selling any such animal or article, and includes a person who undertakes business in any singletransaction;

(14) "Government property" means any property referred to in Section 39; [or Section 17H;]

(36) "wild animal" means any animal specified in Schedules I to IV and found wild in nature;"

14. Chapter V of the Act deals with trade or commerce in wild animals, animal articles and trophies.

15. Section 39(1)(c) occurring in Chapter V of the said Act provides that every ivory imported into India and an article made fromsuch ivory in respect of which any offence against this Act or any rule or order made there-under has been committed, shall be theproperty of the State Government.

16. Section 40 provides for declaration. Sub-section (1) whereof is in the following terms:

40. Declaration.--(1) Every person having at the commencement of this Act the control, custody or possession of any captiveanimal specified in Schedule I or Part II of Schedule II, [or animal article, trophy or uncured trophy] derived from such animal orsalted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, shall, within thirty days from thecommencement of this Act, declare to the Chief Wild Life Warden or the authorised officer the number and description of the animal,or article of the foregoing description under his control custody or possession and the place where such animal or article is kept."

17. Sub-section (2) of Section 40 prohibits acquisition, receiving, keeping in his control, custody or possession, sell, offer for sale orotherwise transfer or transport any animals specified in Schedule I or Part II of Schedule II and allied things by any personwhatsoever. Sub-sections (2A) and (2B) which have been inserted by Act 16 of 2003 read thus:

"(2A) No person other than a person having a certificate of ownership, shall, after the commencement of the Wild Life (Protection)Amendment Act, 2002 acquire, receive, keep in his control, custody or possession any captive animal, animal article, trophy oruncured trophy specified in Schedule I or Part II of Schedule II, except by way of inheritance.

(2B) Every person inheriting any captive animal, animal article, trophy or uncured trophy under Sub-section (2A) shall, within ninetydays of such inheritance make a declaration to the Chief Wild Life Warden or the authorised officer and the provisions of Sections 41and 42 shall apply as if the declaration had been made under Sub-section (1) of Section 40:

Provided that nothing in Sub-sections (2A) and (2B) shall apply to the live elephant.]

(3) Nothing in Sub-section (1) or Sub-section (2) shall apply to a recognised zoo subject to the provisions of Section 381 or to apublic museum.

(4) The State Government may, by notification, require any person to declare to the Chief Wild Life Warden or the authorised officer[any animal or animal article] or trophy (other than a musk of a musk deer or horn of a rhinoceros) or salted or dried skins derivedfrom an animal specified in Schedule I or Part II of Schedule II in his control, custody or possession in such form, in such manner,and within such time, as may be prescribed."

18. Section 40A provides for immunity in certain cases which is in the following terms:

"40A. Immunity in certain cases.- (1) Notwithstanding anything contained in Sub-sections (2) and (4) of Section 40 of this Act, theCentral Government may, by notification, require any person to declare to the Chief Wild Life Warden or the authorised officer, anycaptive animal, animal article, trophy or uncured trophy derived from animals specified in Schedule I or Part II of Schedule II in hiscontrol, custody or possession, in respect of which no declaration had been made under Sub-section (1) or Sub-section (4) ofSection 40, in such form, in such manner and within such time as may be prescribed.

(2) Any action taken or purported to be taken for violation of Section 40 of this Act at any time before the commencement of theWild Life (Protection) Amendment Act, 2002 shall not be proceeded with all pending proceedings shall stand abated.

(3) Any captive animal, animal article, trophy or uncured trophy declared under Sub-section (1) shall be dealt with in such manner

and subject to such conditions as may be prescribed."

19. Section 41 deals with inquiry and preparation of inventories which is in the following terms:



41. Inquiry and preparation of inventories.--(1) On receipt of a declaration made under Section 40, the Chief Wild Life Warden orthe authorised officer may, after such notice, in such manner and at such time, as may be prescribed,--

(a) enter upon the premises of a person referred to in Section 40;

(b) make inquiries and prepare inventories of animal articles, trophies, uncured trophies, salted and dried skins and captive animalsspecified in Schedule I and Part II of Schedule II and found thereon; and

(c) affix upon the animals, animal article, trophies or uncured trophies identification marks such manner as may be prescribed.

(2) No person shall obliterate or counterfeit any identification mark referred to in this Chapter.

20. Chapter V-A was brought into the statute book by Act No. 28 of 1986. "Scheduled animal" has been defined in Clause (a) ofSection 49-A in the following terms:

"(a) 'scheduled animal' means as animal specified for the time being in Schedule I or Part II of Schedule II;"

21. Clause (c) of Section 49-A defines 'specified date' which in relation to ivory imported into India or an article made therefromwould mean the date of expiry of six months from the commencement of Wild Life (Protection) Amendment Act, 1991. The saidprovision was inserted by Act No. 44 of 1991.

22. Section 49-B provides that subject to the other provisions of the said Section, on and after the specified date, no person shallcommence or carry on the business as a manufacturer of, or dealer in, scheduled animal article, or a dealer in ivory imported intoIndia or articles made therefrom or a manufacturer of such articles.

23. Section 49-C of the said Act reads as under:

"49-C. Declaration by dealers. - (1) Every person carrying on the business or occupation referred to in Sub-section (1) of Section49-B shall, within thirty days from the specified date, declare to the Chief Wild Life Warden or the authorised officer,-

(a) his stocks, if any, as at the end of the specified date of-

(i) scheduled animal articles;

(ii) scheduled animals and parts thereof;

(iii) trophies and uncured trophies derived from scheduled animals;

(iv) captive animals, being scheduled animals;

(v) ivory imported into India or articles made therefrom;

(b) the place or places at which the stocks mentioned in the declaration are kept; and

(c) the description of such items, if any, of the stocks mentioned in the declaration which he desires to retain with himself for hisbona fide personal use.

(2) On receipt of a declaration under Sub-section (1), the Chief Wild Life Warden or the authorised officer may take all or any of themeasures specified in Section 41 and for this purpose, the provisions of Section 41 shall, so far as may be, apply.

(3) Where, in a declaration made under Sub-section (1), the person making the declaration expresses his desire to retain withhimself any of the items of the stocks specified in the declaration for his bona fide personal use, the Chief Wild Life Warden, with theprior approval of the Director, may, if he is satisfied that the person is in lawful possession of such items, issue certificates ofownership in favour of such person with respect to all, or as the case may be, such of the items as in the opinion of the Chief WildLife Warden, are required for the bona fide personal use of such person and affix upon such items identification marks in suchmanner as may be prescribed:

Provided that no such items shall be kept in any commercial premises.

(4) No person shall obliterate or counterfeit any identification mark referred to in Sub-section (3).

(5) An appeal shall lie against any refusal to grant certificate of ownership under Sub-section (3) and the provisions of Sub-sections(2), (3) and (4) of Section 46 shall, so far as may be, apply in relation to appeals under this sub-section.

(6) Where a person who has been issued a certificate of ownership under Sub-section (3) in respect of any item,-

(a) transfer such items to any person, whether by way of gift, sale or otherwise, or

(b) transfers or transports from the State in which he resides to another State any such item,

he shall, within thirty days of such transfer or transport, report the transfer or transport to the Chief Wild Life Warden or theauthorised officer within whose jurisdiction the transfer or transport is effected.

(7) No person, other than a person who has been issued a certificate of ownership under Sub-section (3) shall, on and after thespecified date, keep under his control, sell or offer for sale or transfer to any person any scheduled animal, on a scheduled animalarticle or ivory imported into India or any article made therefrom."

24. Section 50 deals with power of entry, search, arrest and detention.

25. Section 51 deals with penalties. The relevant portion of Section 51 is as follows:

51. Penalties.--(1) Any person who [contravenes any provision of this Act [(except Chapter VA and Section 38J)]] or any rule or



51. Penalties.--(1) Any person who [contravenes any provision of this Act [(except Chapter VA and Section 38J)]] or any rule ororder made thereunder or who commits a breach of any of the conditions of the any licence or permit granted under this Act, shallbe guilty of an offence against this Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to[three years] or with fine which may extend to [twenty-five thousand rupees] or with both:

Provided that where the offence committed is in relation to any animal specified in Schedule I or Part II of Schedule II or meat ofany such animal or animal article, trophy or uncured trophy derived from such animal or where the offence relates to hunting in asanctuary or a National Park or altering the boundaries of a sanctuary or a National Park, such offence shall be punishable withimprisonment for a term which shall not be less than three years but may extend to seven years and also with fine which shall notbe less than ten thousand rupees:

Provided further that in the case of a second or subsequent offence of the nature mentioned in this sub-section, the term of theimprisonment shall not be less than three years but may extend to seven years and also with fine which shall not be less thantwenty-five thousand rupees.

(1A) Any person who contravenes, any provisions of Chapter VA, shall be punishable with imprisonment for a term which shall not beless than [three years] but which may extend to seven years and also with fine which shall not be less than [ten thousand rupees].]

(1B) Any person who contravenes the provisions of Section 38J shall be punishable with imprisonment for a term which may extendto six months, or with fine which may extend to two thousand rupees, or with both:

Provided that in the case of a second or subsequent offence the term of imprisonment may extend to one year, or with fine whichmay extend to five thousand rupees.

26. Section 63 empowers the Central Government to makes rules.

INTERPRETATION OF THE ACT:

27. The provisions of the said Act must be construed having regard to the purport and object it seeks to achieve. Not only inter aliawild animal is to be protected but all other steps which are necessary therefor so as to ensure ecological and environmental securityof the country must be enforced. The interpretation provisions as regard 'wild animal' employs the word 'includes' and, thus, must beassigned a broad meaning. The Amending Acts must be viewed in that perspective. Prosecution and conservation of wild animal isessential for very existence of human life. A trade in wild animal which is sought to be prohibited with an object to oversee survivalof human beings must be given its full effect. The CITES was formulated keeping in view the aforementioned policy. India is amember State of the Convention. It is a signatory to the other treaties and conventions in this behalf. Appendix I of CITES whichcame into effect from 18th January, 1990 provided for complete prohibition of internal and trans border trade in ivory. TheParliament enacted the Amendment Act (Act No. 44 of 1991) with a view to save the species of Indian Elephant and to give effect

to the said international treaties. Prior thereto, that is 1989, the African Elephant was proposed to be brought in Appendix I ofCITES.

28. In the Press Release of October, 2002, the following appears:

"Another high-profile item is the African elephant. After an eight-year ban on ivory sales, in 1997 CITES agreed to allow threeAfrican countries - Botswana, Namibia and Zimbabwe - to make one time sales from their existing legal stocks of raw ivory. The ivory- which weighed 49,574 kg. and represented 5,446 tusks - was sold to Japan in 1999 and earned some USD5 million. The funds wereused for elephant conservation activities in the three range states.

In the year 2002, the three countries plus South Africa and Zambia are proposing one-off sales of existing ivory stocks to befollowed later by annual quotas. The proposals are for a first sale of 20,000 kg. and an annual quota of 4,000 kg. for Botswana,10,000 Kg. and 2,000 kg. respectively for Namibia, 30,000 kg. and 2,000 kg. for South Africa and 10,000 kg. and 5,000 kg. forZimbabwe. Zambia is proposing a one-off sale of 17,000 kg. A proposal from India and Kenya, on the other hand, argues that furtherivory sales from African elephants should be clearly prohibited as a precautionary measure for reducing future threats to theelephant.

Meanwhile, Japan is seeking to open up trade in most northern hemisphere populations of minke whale and a Pacific population ofBryde's whale. Its proposals stress the use of national legislation and DNA identification of individual whales to monitor catches andtrade. Similar proposals were presented without success at the most recent CITES conferences in 1997 and 2000. This year'sdebate is likely to involve issues related to science, sustainable use, possible enforcement problems, and the international WhalingCommission's moratorium on commercial whaling."

29. Further, in the Press Release of 12th November, 2002, the following appears:

"CITES has conditionally accepted proposals from Botswana, Namibia and South Africa that they be allowed to made one - off salesof 20, 10 and 30 tonnes, respectively, of ivory. The ivory is held in existing legal stocks that have been collected from elephantsthat dies of natural causes or as a result of government - regulated problem - annual control.

Similar proposals from Zambia and Zimbabwe for 17 and 10 tonnes, respectively, were not accepted. Today's decisions by CITESmust still be formally adopted by the full Plenary on Friday, when the current two - week conference ends."

30. The rival contention as regard the interpretation and application of the said Act must be considered having regard to theaforementioned principles as also the international treaties and development which took place subsequently.

WHETHER THE AMENDING ACT 44 OF 1991 IS ULTRA VIRES ARTICLES 19(1)(g) AND 14 OF THE CONSTITUTION OF INDIA

31. Appellant No. 1 herein appeared to have imported ivory from 1971 to 1988. It was in possession of 755.930 Kgs. Of solid IvoryArticles and 10.050 Kgs. with metal.

32. Dealing in imported ivory so long the law permits may be a fundamental right but if the statute prohibits it, it must be held to bea law within the meaning of Clause (6) of Article 19 of the Constitution of India in terms whereof reasonable restriction is imposed. Atrade which is dangerous to ecology may be regulated or totally prohibited. For the aforementioned purpose, regulation wouldinclude prohibition.



33. What would be a reasonable restriction which can be imposed in public interest is a matter which is no longer res integra.

34. In Narender Kumar and Ors. v. Union of India and Ors. [1960] 2 SCR 375, this Court while interpreting the word 'restrictions' heldas follows:

"It is reasonable to think that the makers of the Constitution considered the word "restriction" to be sufficiently wide to save laws"inconsistent" with Article 19(1), or "taking away the rights" conferred by the Article, provided this inconsistency or taking away wasreasonable in the interests of the different matters mentioned in the clause. There can be no doubt therefore that they intendedthe word "restriction" to include cases of "prohibition" also. The contention that a law prohibiting the exercise of a fundamental rightis in no case saved, cannot therefore be accepted."

35. (See also State Maharashtra v. Mumbai Upnagar Gramodyog Sang [1969] 2 SCR 392).

36. In Synthetics and Chemicals Ltd. (supra), this Court held:

"75. Balsara case (1951 SCR 682 : AIR 1951 SC 318 : 52 Cri LJ 1361) dealt with the question of reasonable restriction on medicinal

and toilet preparations. In fact, it can safely be said that it impliedly and sub-silentio clearly held that medicinal and toiletpreparations would not fall within the exclusive privilege of the States. If they did there was no question of striking down of Section12(c) and (d) and Section 13(b) of the Bombay Prohibition Act, 1949 as unreasonable under Article 19(1)(f) of the Constitutionbecause total prohibition of the same would be permissible. In K.K. Narula case (K.K. Narula v. State of J&K, (1967) 3 SCR 50 : AIR1967 SC 1368) it was held that there was right to do business even in potable liquor. It was not necessary to say whether it is goodlaw or not. But this must be held that the reasoning therein would apply with greater force to industrial alcohol."

37. In Ramana Dayaram Shetty v. The International Airport, Authority of India and Ors. [AIR 1979 SC 1628 : 1979 (3) SCR 1014],this Court held:

"...We fail to see how the plea of contravention of Article 19(1)(g) or Article 14 can arise in these cases. The Government's powerto sell the exclusive privilege set out in Section 22 was not denied. It was also not disputed that these privileges could be sold bypublic auction. Public auctions are held to get the best possible price. Once these aspects are recognised, there appears to be nobasis for contending that the owner of the privileges in question who had offered to sell them cannot decline to accept the highestbid if he thinks that the price offered is inadequate.

It will be seen from these observations that the validity of Clause (6) of the Order dated January 6, 1971 was upheld by this Courton the ground that having regard to the object of holding the auction, namely, to raise revenue, the Government was entitled toreject even the highest bid, if it thought that the price offered was inadequate. The Government was bound to accept the tender ofthe person who offered the highest amount and if the Government rejected all the bids made at the auction, it did not involve anyviolation of Article 14 of 19(1)(g). This is a self-evident proposition and we do not see how it can be of any assistance to therespondents."

38. In Har Shankar and Ors. v. Dy. Excise and Taxation Commissioner [AIR 1975 SC 1121 : (1975) 3 SCR 254], this Court held:

"...The state, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants - itsmanufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State andindeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. In AmericanJurisprudence", Volume 30 it is stated that while engaging in liquor traffic is not inherently unlawful, nevertheless it is a privilege andnot a right, subject to governmental control (page 538). This power of control is an incident of the society's right to self-protectionand it rests upon the right of the state to care for the health, morals and welfare of the people. Liquor traffic is a source ofpauperism and crime (pp. 539, 540, 541)."

39. In order to determine whether total prohibition would be reasonable the Court has to balance the direct impact on thefundamental right of the citizens thereby against the greater public or social interest sought to be ensured. Implementation ofDirective Principles contained in Part IV is within the expression of restrictions in the interest of the general public.

40. In Municipal Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usmanbhai and Anr. [AIR 1986 SC 1205 : (1986) 2SCR 700], this court held:

"15. Before proceeding to deal with the points urged on behalf of the appellants it will be appropriate to refer to the well-establishedprinciples in the construction of the constitutional provisions. When the validity of a law placing restriction on the exercise of afundamental right in Article 19(1)(g) is challenged, the onus of proving to the satisfaction of the court that the restriction isreasonable lies upon the State. If the law requires that an act which is inherently dangerous, noxious or injurious to the publicinterest, health or safety or is likely to prove a nuisance to the community shall be done under a permit or a licence of an executiveauthority, it is not per se unreasonable and no person may claim at licence or a permit to do that act as of right. Where the lawproviding for grant of a licence or permit confers a discretion upon an administrative authority regulated by rules or principles,express or implied, and exercisable in consonance with the rules of natural justice, it will be presumed to impose a reasonablerestriction. Where, however, power is entrusted to an administrative agency to grant or withhold a permit or licence in itsuncontrolled discretion the law ex facie infringes the fundamental right under Article 19(1)(g). Imposition of restriction on theexercise of a fundamental right may be in the form of control or prohibition.

"20. The tests of reasonableness have to be viewed in the context of the issues which faced the legislature. In the construction ofsuch laws and in judging their validity, courts must approach the problem from the point of view of furthering the social interestwhich it is the purpose of the legislation to promote. They are not in these matters functioning in vacuo but as part of society whichis trying, by the enacted law, to solve its problems and furthering the moral and material progress of the community as a whole.(See Jyoti Prasad v. Union Territory of Delhi ((1962) 2 SCR 125 : AIR 1961 SC 1602). If the expression 'in the interest of generalpublic' is of wide import comprising public order, public security and public morals, it cannot be said that the standing orders closingthe slaughter houses on seven days is not in the interest of general public."

41. The primal object for which dealing in ivory imported from Africa had been prohibited was to see that while holding the stock, the

people may not deal in Indian ivory which may be procured from illegal killings of Indian Elephant. The Amending Act indirectly seeksto protect Indian Elephant and to arrest their further depletion.

42. It may be necessary to go into the history of legislation leading to enactment of the said Act for the purpose of undertaking howsmall restrictions were replaced by and by with bigger ones and ultimately to a total prohibition. We may notice that the first



small restrictions were replaced by and by with bigger ones and ultimately to a total prohibition. We may notice that the firstlegislation for protection of birds was enacted in 1887 known as the Wild Birds Protection Act, 1887 (Act No. X of 1887) which wasfollowed by the Wild Birds And Animals (Protection) Act, 1912. As the object sought to be achieved by the said Acts was notfulfilled, the same was amended in the year 1935 in terms of which the Provincial Government could declare any area to be asanctuary for the birds or animals and their killing was made unlawful. As wild life was a State subject of legislation, in the year 1972several States adopted resolutions in terms of Article 252 of the Constitution of India empowering the Parliament to pass thenecessary legislation.

43. The provisions contained in the 1972 Act were found to be inadequate necessitating extensive amendment. One of the Objectsand Reasons for the said Act was to see that the wild animals or articles and derivates thereof may not be smuggled out to meetthe demand in foreign markets as there is hardly any market within the country therefor. A clandestine trade abetted by illegalpractices of poaching which had taken a heavy toll of our wild animals and birds were sought to be restrained. It was pointed outthat the stocks declared by the traders at the commencement of the Wild Life (Protection) Act, 1972 are used as a cover for suchillegal trade.

44. The Parliament in its wisdom thought to amend the said Act further in the year 1991 in terms whereof the following changeswere made:

"(i) It substituted new section for Sections 9, 29 and 55 of the Principal Act;

(ii) It omitted Sections 10, and 13 to 17 of the Principal Act;

(iii) It inserted two new chapters, namely, Chapter IIIA and Chapter IVA, in the Principal Act; and

(iv) It inserted new Schedule, namely, Schedule VI, in the Principal Act."

45. At this juncture, we may usefully take notice of the Statement of Objects and Reasons of the said Act.

"Poaching of wild animals and illegal trade of products derived therefrom, together with degradation and depletion of habitats haveseriously affected wildlife population. In order to check this trend, it is proposed to prohibit hunting of all wild animals (other thanvermin). However, hunting of wild animals in exceptional circumstances, particularly for the purpose of protection of life and propertyand for education, research, scientific management and captive breeding, would continue. It is being made mandatory for everytransporter not to transport any wild life products without proper permission. The penalties for various offences are proposed to besuitably enhanced to make them deterrent. The Central Government Officers as well as individuals now can also file complaints in thecourts for offences under the Act. It is also proposed to provide for appointment of honorary Wild Life Wardens and payment ofrewards to persons helping in apprehension of offenders.

To curb large scale mortalities in wild animals due to communicable diseases, it is proposed to make provisions for compulsoryimmunisation of livestock in and around National Parks and Sanctuaries.

It may be recalled that the Parties to the "Convention on International Trade in Endangered Species of Wild Fauna and Flora"(CITES), being greatly concerned by the decline in population of African elephant (sic) the import and export of African ivory forcommercial purposes has been prohibited. As a result import of ivory would no longer be possible to meet the requirements of thedomestic ivory trade. If the lead to large scale poaching of Indian elephants. With this point in view, the trade in African ivory withinthe country is proposed to be banned after giving due opportunity to ivory traders to dispose off their existing stock."

46. The Parliament while enacting the said Amending Act took note of serious dimensions of poaching of wild animals and illegal tradegiving exponential rise of wild animals and their products.

47. The Hon'ble Minister of State of the Ministry of Environment and Forest in the House stated:

"Population of Indian elephants, particularly in South India, are under serious threat by ivory poachers. Although the trade in Indianivory was banned in 1986, the trade in imported ivory gives an opportunity to unscrupulous ivory traders to legalise poached ivory inthe name of imported ivory. With this point in view, the trade in African ivory is proposed to be banned after giving due opportunityto ivory traders to dispose of their existing stocks."

48. During pendency of these matters, as noticed hereinbefore, the Parliament enacted the Wild Life (Protection) Amendment Act,

2002 (Act No. 16 of 2003) which came into force with effect from 1st April, 2003.

49. By reason of the Amending Act of 2003, the possession of an ivory whether by a trader or a person is completely banned.

50. There cannot be any doubt whatsoever that a law which was at one point of time was constitutional may be renderedunconstitutional because of passage of time. We may note that apart from the decisions cited by Mr. Sanghi, recently a similar viewhas been taken in Kapila Hingoranii v. State of Bihar [JT 2003 (5) SC 1] and John Vallamattom and Anr. v. Union of India [JT 2003(6) SC 37].

51. In this case, however, we are faced with a different situation. We are concurrent with the reason and object for which theamendments have to be made. We must take into consideration the text and context of the amending Acts and the circumstancesin which they had to be brought about.

52. The provisions of the statute are also required to be considered keeping in view Article 48-A and Article 51A(g) of theConstitution of India which are in the following terms:

"48-A. Protection and improvement of environment and safeguarding of forests and wild lie.-- The States shall endeavour toprotect 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 livingcreatures;"



creatures;"

53. We cannot shut out eyes to the statements made in Article 48-A of the Constitution of India which enjoins upon the State toprotect and improve the environment and to safeguard the forests and wild life of the country. What is destructive of environment,forest and wild life, thus, being contrary to the Directive Principles of the State Policy which is fundamental in the governance of thecountry must be given its full effect. Similarly, the principles of Chapter IVA must also be given its full effect. Clause (g) of Article51A requires every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to havecompassion for living creatures. The amendments have to be carried out keeping in view the aforementioned provisions.

54. It is, therefore, difficult to accept the contention of Mr. Sanghi that protection and preservation of wild life would not be inpublic interest and/or cannot be extended to imported ivory. Wild Life forms part of our cultural heritage. Animals play a vital role inmaintaining ecological balance. The amendments have been brought for the purpose of saving the endangered species fromextinction as also for arresting depletion in their numbers caused by callous exploitation thereof.

55. In D.D. Basu's Commentary on the Constitution of India (Sixth Edition, Volume C) at page 45-46, the law has been summarized inthe following manner:

"It is now settled that no inflexible answer to this question is possible, and that it is the nature of the business or property which isan important element in determining how far the restriction may reasonably go:

(A) In the case of inherently dangerous or noxious trades, such as production or trading in liquors or cultivation of narcotic plants,or trafficking in women, it would be a 'reasonable restriction' to prohibit the trade or business altogether.

(B) Where the trade or business is not inherently bad, as in the preceding cases, it must be shown by placing materials before theCourt that prohibition of private enterprise in the particular business was essential in the interests of public welfare. Thus -

In order to prevent speculative dealings in 'essential commodities' (such as cotton), during a period of emergency, the State mayimpose a temporary prohibition of all normal trading on such commodities. In the later case of Narendra v. Union of India (supra), theSupreme Court has sustained even a permanent law leading to the elimination of middle-men from the business in essentialcommodities in order to ensure the supply of such goods to the consumer at a minimum price."

56. The amending Acts satisfy also the strict scrutiny test.

57. The stand of the State that by reason of ivory by the dealers, poaching and killing of elephants would be encouraged, cannot besaid to be irrational. Mr. Sanghi, as noticed hereinbefore, has drawn out attention to the changes sought to be effected in CITES atthe instance of Botswana, South Africa, Namibia and Zimbabwe. The question as to whether a reasonable restriction would becomeunreasonable and vice-versa would depend upon the fact situation obtaining in each case. In the year 1972 when the said Act was

enacted there might not have been any necessity to preserve the elephant as also ivory. The species might not have been on thebrink of extinction. The Objects and Reasons set out for bringing in amendments in the said Acts in the year 1986, 1991 and 2003clearly bring into fore the necessity to take more and more stringent measures so as to put checks on poaching and illegal trade inivory. Experience shows that poaching may be difficult to be completely checked. Preventive measures as regard poaching leadingto killing of elephants for the purpose of extraction of their tusks is a difficult task to achieve and, thus, the Parliament must havethought it expedient to put a complete ban in trade in ivory to meet the requirement of the country.

58. India being a sovereign country is not obligated to make law only in terms of CITES; it may impose stricter restructions havingregard to local needs.

59. In John Vallamattom and Anr. v. Union of India [JT 2003 (6) SC 37] this Court speaking through the Hon'ble Chief Justice of Indiaheld:

"Furthermore, India being a signatory to the Declaration on the Right to Development adopted by the World Conference on HumanRights and Article 18 of the United Nations Covenant on Civil and Political Rights, 1966, the impugned provision may be judged on thebasis thereof."

60. Referring to Article 1 of the Declaration on the Right to development and Article 18 of the United Nations Covenant on Civil andPolitical Rights 1966, this Court following Kapila Hingorani v. State of Bihar [JT 2003 (5) SC 1] observed that the provisions of lawmust be judged keeping in view the international treaties and conventions stating:

"It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be

considered on the basis of laws existing on 26th January, 1950, but while doing so the court is not precluded from taking intoconsideration the subsequent events which have taken place thereafter. It is further trite that that the law although may beconstitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation.

Justice Cardoze said:

"The law has its epochs of ebb and flow, the flood tides are on us. The old order may change yielding place to new; but thetransition is never an easy process".

Albert Campus stated:

"The wheel turns, history changes". Stability and change are the two sides of the same law-coin. In their pure form they areantagonistic poles; without stability the law becomes not a chart of conduct, but a gare of change: with only stability the law is asthe still waters in which there is only stagnation and death."

61. Although in that case Section 118 of the Indian Succession Act was declared unconstitutional but we are of opinion that legalprinciples enunciated therein will have to be applied for the purpose of judging the constitutionality of impugned provisions keeping inview the subsequent changes.

62. Submission of Mr. Sanghi to the effect that the Amending Acts provide for arbitrary unguided and unbridled power is stated tobe rejected. The submission of learned counsel was made on the premises that after ban was imposed on trade in ivory, all tradersbecome non-traders and, thus, traders and non-traders could not have been treated differently. When a trade is prohibited as hassought to be done by reason of the 1991 Amendment Act by inserting Chapter VA, the matters incidental thereto or connectedtherewith must be dealt with accordingly. For all intent and purport the statute would treat the traders on a different footing than



therewith must be dealt with accordingly. For all intent and purport the statute would treat the traders on a different footing thannon-traders. They form a different and distinct class.

63. The appellants used to trade in ivory stands admitted. They, thus, would come within the purview of the definition of the traderalso is undisputable. The manner in which despite legal ban on trade a person may not take recourse to illegal trading is a matterwhich squarely falls within the purview of the legislative competence. It is now well-settled that the Parliament can no only enact alaw for avoidance or evasion of commission of all illegal trade but also may make law to see that the law is not evaded by takingrecourse to machination or camouflage. The loopholes, if any, in such matters can and should be plugged. "Means Affecting Means"principles as adumbrated in United States v. Darby [312 US 100 (1941)] is an illustration on the point. Both substantial andprocedural provisions can be made to make a law in furtherance of the object for which the Act has been enacted and to see thatwhat is sought to be prohibited directly may not be achieved by the traders indirectly.

64. For the purpose of Chapter VA the appellants remained traders despite the fact that they have been prohibited from carrying onany business. How after imposing the ban, stock in trade is to be dealt with is again a matter which can be dealt with by theLegislature. It has the requisite competence therefor. Furthermore, it is now idle to contend having regard to the provisionscontained in Section 40(2A) of the Act that the traders have been discriminated with vis-a-vis the non-traders. Traders are class

by themselves and such no question of any discrimination arises. The classification is well-defined and well-perceptible. Traders andnon-traders constitute two different classes and the classification is founded on an intelligible differentia clearly distinguishing onefrom the other.

65. A machinery must be so construed as to effectuate the liability imposed by the charging section and to make the machineryworkable - ut res magis valeat quam pereat. (See D. Saibaba & Bar Council of India and Anr. reported in JT 2003 (4) SC 435 andWelfare Assocn. A.R.P. Maharashtra and Anr. v. Ranjit P. Gohil and Ors. reported in 2003 (2) SCALE 288)

66. Submission of Mr. Sanghi that the definition of wild animal is vague cannot be accepted. Hamdard Dawakhana (supra) whereuponMr. Sanghi has placed strong reliance is wholly mis-placed.

67. In Hamdard Dawakhana (supra) the 'magic remedy' was held to be incapable of giving a fixed meaning and, thus, was held ultravires Article 14 of the Constitution being vague in nature. We do not find any such vagueness in any of the provisions of theimpugned Acts including the definition of 'wild animal'. It is clear and unambiguous.

68. Reliance placed by Mr. Sanghi on Rustom Cavasajee Cooper (supra) is equally mis-placed. In that case, this Court was dealingwith nationalization of banks. The court held that the provisions impugned therein are ultra-vires. In that situation, it was held:

"Impairment of the right of the individual and not the object of the State in taking the impugned action is the measure of protection.To concentrate merely on power of the State and the object of the State action in exercising that power is therefore to ignore thetrue intent of the Constitution."

69. There is no quarrel with the aforementioned propositions inasmuch as herein we are upholding vires of the statutes holding thatthe restrictions imposed is reasonable.

70. The Amending Acts in our opinion are constitutional, legal and valid.

RES-EXTRA COMMERCIUM:

71. We, however, agree with Mr. Sanghi that in a case of this nature the doctrine of 'res extra commercium' cannot be invoked.When trade in a particular commodity is governed by a statute, the same has to be given its full effect. Trade in ivory waspermissible in law. It was restricted in 1986. It has totally been prohibited in the year 1991. The Amendment Act, 2003 broughtabout further changes in terms whereof further restrictions have been imposed even on the private owners to possess ivory or anyother animal article.

72. CITES banned trade in ivory but as regard some countries the ban has been relaxed. At least in five countries ivory has beenplaced in Appendix II from Appendix I. We do not know whether in a few years from now having regard to increase in population ofelephant, a restricted trade in ivory would be permitted. If that is permitted by amending the said Act, the trade in ivory would belegal.

73. The submission of the appellants, however, to the effect that the elephant has been downlisted from Appendix I to Appendix IIof CITES is incorrect. All international trade in elephants or articles thereof including Asian elephants (Indian species) is prohibited asit continues to be listed in Appendix I excepting for certain specified African elephant populations of Botswana, Namibia, South Africaand Zimbabwe which have now been listed in Appendix II. this limited trade has been allowed under very strict conditions asmentioned in the CITES Appendix. Further, India at the CITES Conference (2002) had seriously opposed permitting of such limitedtrade and had even submitted a proposal for a continuation of the ban on ivory trade.

74. Education having regard to its nature was held to be beyond pale of business or occupation within the meaning of Article 19(1)(g) of the Constitution of India.

75. In Unni Krishnan J.P. and Ors. v. State of Andhra Pradesh and ors. [(1993) 1 SCC 645], it was observed:

"198. We are, therefore, of the opinion, adopting the line of reasoning in State of Bombay v. R.M.D. Chamarbaugwala (1957 SCR 874: AIR 1957 SC 699) that imparting education cannot be treated as a trade or business. Education cannot be allowed to beconverted into commerce nor can the petitioners seek to obtain the said result by relying upon the wider meaning of "occupation".The content of the expression "occupation" has to be ascertained keeping in mind the fact that Clause (g) employs all the fourexpressions viz., profession, occupation, trade and business. Their fields may overlap, but each of them does certainly have acontent of its own, distinct from the others. Be that as it may one thing is clear - imparting of education is not and cannot beallowed to become commerce. A law, existing or future, ensuring against it would be a valid measure within the meaning of Clause(6) of Article 19. We cannot, therefore, agree with the contrary proposition enunciated in Sakharkherda Education Society v. Stateof Maharashtra (AIR 1968 Bom LR 690) Andhra Kesari Education Society v. Govt. of A.P. (AIR 1987 AP 251 : (1984) 1 APLJ 45) and

Bapuji Educational Assn. v. State, (AIR 1968 Kant 80)"

76. An 11-Judge Bench of this Court in T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481], however, held thatimparting of education would come within the purview of the definition of occupation within the meaning of Article 19(1)(g) of theConstitution of India. This court following Sodan Singh v. New Delhi Municipal Committee [(1989) 4 SCC 155] opined:



"In Unni Krishnan's case (Unni Krishnan J.P. v. State of A.P. (1993) 1 SCC 645 at p. 687) while referring to education, it wasobserved as follows :-

"It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from theUniversity is asked on the basis that it is a fundamental right."

While the conclusion that "occupation" comprehends the establishment of educational institutions is correct, the proviso in theaforesaid observation to the effect that this is so provided no recognition is sought from the state or affiliation from the concerneduniversity is, with the utmost respect, erroneous. The fundamental right to establish an educational institution cannot be confusedwith the right to ask for recognition or affiliation. The exercise of a fundamental right may be controlled in a variety of ways. Forexample, the right to carry on a business does not entail the right to carry on a business at a particular place. The right to carry ona business may be subject to licensing laws so that a denial of the licence prevents a person from carrying on that particularbusiness. The question of whether there is a fundamental right or not cannot be dependent upon whether it cannot be made thesubject-matter of controls.

The establishment and running of an educational institution where a large number of persons are employed as teachers oradministrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily beregarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, willnot fall under any of the four expressions in Article 19(1)(g). "Occupation" would be an activity of a person undertaken as a meansof livelihood or a mission in life. The above quoted observations in Sodan Singh case (Sodan Singh v. New Delhi Municipal Committee,(1989) 4 SCC 155) correctly interpret the expression "occupation" in Article 19(1)(g)."

77. The said view has been reiterated recently by a Constitution Bench in Islamic Academy of Education and Anr. v. State of

Karnataka and Ors. decided on 14th August, 2003 [JT 2003 (7) SC 1].

78. The High Court has referred to the decision in P. Crowley v. Henry Christensen [(1890) 34 Law. Ed. 620] so as to hold that acitizen has no inherent right to sell intoxicating liquors. Therein the U.S. Supreme Court was dealing with a federal law imposingrestrictions on a person dealing in retail trade in liquor without obtaining a due licence therefor. The law was upheld negativing thecontention that the restriction was unreasonable. It was not held therein that trade of liquor is impermissible in all situations.

79. Restriction in trade, therefore, would depend upon the nature of the article and the law governing the field. By reason of judicialvagaries, fundamental right under Article 19(1)(g) of the Constitution cannot be further restricted. (See Krishna Kumar Narula v. TheState of Jammu and Kashmir and Ors. AIR 1967 SC 1368).

80. Dr. D.D. Basu in his Commentary on the Constitution of India (Sixth Edition) Volume L at page 238 stated:

"In Chamarbaugwala's case (supra) as well as in Fatehchand's case (AIR 1977 SC 1825), the Court relied upon the observations ofTaylor, J. in Mansell's case (1956) C.L.R. 550, in support of the theory of res extra commercium, but as appears from the followingobservations of Wynes (1970), p. 263, the doctrine has not had a peaceful career in Australia, and has produced conflictingdecisions which are not beyond criticism:

"The question whether exceptions to the otherwise express provisions of Section 92 based upon inherent quality of goods can bemade has not been settled... Since the Hughes case (1954) 93 C.L.R. 1 it is no doubt true to say that a State may legitimatelyregulate the incidents of traffic in such cases, but this does not derive from inherent quality, but from the proposition thatregulation can be consistent with freedom..""

WHETHER THE APPELLANTS ARE ENTITLED TO POSSESS ANIMAL ARTICLES:

81. A mere perusal of the definition of 'animal article' in Section 2(2) of the Act would show that the imported ivory falls within it. Inthat view of the mater the question as to whether the African elephant is scheduled animal or not is irrelevant. Dealing in trade inivory is prohibited under Chapter VA. The appellants, therefore, being traders in ivory would come within the purview of theprohibitions contained therein. Once they come within the purview of the said Chapter, they have to be dealt with accordingly. If hehas been a trader, he must make a declaration in terms of Sub-section (1) of Section 49-C of the Act. Chapter IV would not applyin his case. The said Chapter deals with the matters contained therein. Traders in ivory forming a different class have been dealtwith in Chapter VA. Doctrine of 'generalia specialibus non derogant' would be applicable in this case. We would deal with this subject

in details a little later.

82. The contention of the appellants that it is covered by the newly added provision Section 40-A or that the said sectiondiscriminates individual owners and traders is ill-founded.

83. At the time of passing of the main Wild Life Protection Act in 1972, there were two categories of persons who could be inpossession of animal articles, etc. namely (a) individual (non-traders) - who had possession of animals articles for their own personaluse and (b) traders - who had possession of such article for the purpose of sale. Consequently, the 1972 Act requires individuals todeclare and apply for ownership certificates of the animal articles which were in their possession. And as regard the traders,Sections 44 to 48 and 49 mandated the traders to declare their stocks and to apply for a licence. Section 40-A has beenincorporated solely for the purpose of mitigating the omission of individual non-traders who due to lack of information or ignorancecould not declare the animal articles in their possession within the limited period of 30 days from the commencement of the 1970 Actas specified in Section 40 of the Act. By reason thereof another chance has been given to the non-traders to make a declaration.All the appellant traders on the other hand had admittedly applied within the period of 30 days as specified in Section 44 of the Act.Hence, the object and purpose of Section 40-A is limited to individual non-traders and does not discriminate the traders or inter sethe traders.

84. In any event after the incorporation of Chapter V-A and the inclusion of ivory in the said Chapter the appellant traders aregoverned by the provisions of Chapter V-A. The provisions of Chapter V which includes Section 40-A is not applicable to theappellant traders. Chapter V-A is a complete Code in itself and it would be a fallacy to read into or extend by implication themitigating provision of Section 40-A into Chapter V-A. The Legislature, had it so desired could have incorporated a similar provisionin Chapter V-A.

85. Section 49-C provides that every person carrying on the business or occupation referred to in Sub-section (1) of Section 49-B,within thirty days from the specified date, declare to the Chief Wild Life Warden or the authorised officer, his stocks, if any, as atthe end of the specified date of ivory imported into India or articles made therefrom, the place or places at which the stocks



the end of the specified date of ivory imported into India or articles made therefrom, the place or places at which the stocksmentioned in the declaration are kept and the description of such items, if any, of the stocks mentioned in the declaration which hedesires to retain with himself for his bona fide personal use. Sub-section (3) of Section 49-C further provides that where, in adeclaration made under Sub-section (1), the person making the declaration expresses his desire to retain with himself any of theitems of the stocks specified in the declaration for his bona fide personal use, the Chief Wild Life Warden, with the period approval ofthe Director, may, if he is satisfied that the person is in lawful possession of such items, issue certificate of ownership in favour ofsuch person with respect to all, or as the case may be, such of the items as in the opinion of the Chief Wild Life Warden, arerequired for the bona fide personal use of such person and affix upon such items identification marks in such manner, as may beprescribed. Sub-section (6) of Section 49-C further provides that where a person who has been issued a certificate of ownershipunder Sub-section (3) in respect of any item, it is permissible for him to transfer any such item to any such person, whether by wayof gift, sale or otherwise, or transfer or transport from the State in which he resides to another State any such item and he shallwithin thirty days from such transfer or transport, report and transfer or transport to the Chief Wild Life Warden or the authorisedofficer within whose jurisdiction the transfer or transport is effected.

86. On coming, into force of Act No. 28 of 1986 or Act No. 44 of 1991, however, it may be true that the property does notautomatically vest in the Government. It is not in dispute that in terms of Clause (c) of Section 39 of the Act which was inserted byAct No. 44 of 1991 only ivory imported into India and articles made from such ivory in respect of which any offence against this Actor any rule or order made thereunder has been committed, would be the property of the State Government and not otherwise. Butthe issue is required to be considered from a different angle.

87. On or from the specified date, however, carrying on any trade or commerce, inter alia, in relation to ivory imported into India orany article made therefrom is completely prohibited. Despite such provision, however, a person carrying on a business or occupationor dealing in trophies, animal articles etc. derived from scheduled animals would be, in terms of Sub-section (1) of Section 49-C ofthe Act, entitled to file a declaration disclosing his stocks of ivory imported into India or article made therefrom. Once such adeclaration is made and in the event such person makes a declaration expressing his desire to retain with himself any of the itemsspecified therein for his bona fide use, a certificate of ownership may be granted for such item or items which in the opinion of theChief Wild Warden are required therefor. Only in relation to items for which such certificate of ownership has been granted, atransfer thereof is permissible subject to the restrictions imposed under Sub-section (6) of Section 49-C. Sub-section (7) of Section49-C, however, provides for prohibition of such ivory imported into India or any article made therefrom from being kept under thecontrol of the trader for sale or offer for sale or transfer to any person whatsoever.

88. The upshot of the aforesaid provisions is that any trader who has imported ivory legally into India prior to coming into force ofthe Act No. 44 of 1991, although would not be entitled to carry on any business or trade in respect thereof, but having regard tothe provisions referred to hereinbefore, unless he commits an offence in relation thereto, the same would not vest in theGovernment. He would, however, not be entitled to keep possession thereof except in the mode and manner provided for in Section49-C of the Act.

89. On a conjoint reading of the aforesaid provisions, there cannot be any doubt whatsoever that any person who has obtainedsuch a certificate under Sub-section (30 of Section 49-C only may keep possession of the property i.e. subject to grant ofownership certificate. In the event he complies with the aforesaid provisions, he would be entitled to transfer or transport such itemas provided for in Sub-section (6) of Section 49-C. There cannot further be any doubt that in the event no certificate of ownershipis granted in favour of a trader in terms of Sub-section (3) of Section 49-C, the question of his becoming entitled to transfer ortransport the property would not arise, in which event, in terms of Sub-section (7) of Section 49-C, he would be disentitled not onlyfrom selling or offering for sale or transfer the said items but also from keeping the said items under his control.

90. The statutory provisions, in our opinion, are absolutely clear and unambiguous.

91. The submission of Mr. Sanghi to the effect that the Chief Wild Life Warden has been conferred with an unguided power todeclare any item as being capable of bona fide personal use of a trader cannot be accepted. Not only in terms of the provisions ofthe said Act, a trade or commerce, inter alia, in relation to ivory has been prohibited, having regard to the proviso appended to Sub-section (3) of Section 49-C, even such item cannot be kept for display in any commercial premises. As such ivory or any articlemade therefrom can neither be subject matter of trade or commerce nor displayed in any commercial premises for any reasonwhatsoever. By reason of the provisions of the said Act, the trader was given six months' time to dispose of the articles in hispossession. No foundational fact has been laid before the High Court nor any contention has been raised before us that the periodspecified therein under the Act was not reasonable. Articles which cannot be subject matter of trade or commerce can only be keptfor personal use. Such personal use must be a bona fide one. Once the requirement for keeping the possession of such article by atrader has specifically been laid down, it cannot be said that the Chief Wild Life Warden has been conferred with unguided anduncanalized power. In the event, an order is passed, the person dissatisfied therewith, may prefer an appeal in terms of Sub-section(5) thereof.

92. Against such original orders or appellate orders, even a judicial review would be maintainable.

93. Sub-section (7) of Section 49-C would be applicable only in relation to such items or articles wherefor certificate of ownershiphas not been granted. If a person keeps under his control, sells or offers for sale or transfers the same to any other person, hewould be subject to a penalty as provided under Sub-section (1-A) of Section 51 of the Act.

94. Sub-section (2) of Section 51 empowers the competent court to direct that such property be forfeited by the Government, inwhich event, Clause (c) of Section 39 would be attracted. We, therefore, do not find that the provisions of the said Act areanomalous in nature. It is true, as has been pointed out by Mr. Sanghi, that the respondents made a statement before the HighCourt that the property in possession of the appellants did not vest in the Government but such a statement was made evidentlyhaving regard to the provisions of Clause (c) of Section 39 of the Act read with Sub-section (2) of Section 59 thereof. Suchproperty would vest in the Government subject to an order of forfeiture and subject to an order of conviction and sentence againstthe offender for violation of Sub-section (7) of Section 49-C is recorded. We, in view of the provisions of the said Act, therefor,emust hold that not only trade or occupation in relation to ivory in question is prohibited but possession or any transfer thereof in anymanner whatsoever is prohibited under the Act subject, however, to the provisions of Sub-sections (1), (3) and (6) of Section 49-Cof the Act.

95. The legislature has deliberately used the words 'bonafide personal use' in Section 49-C and has placed the onus on the tradersto prove the same so as to be entitled to retain the articles out of the stocks declared by it. This requirement is due to the factthat the acquisition of an animal article by an individual non-trader at the time of purchase would be presumed to be one for his ownpersonal bonafide use while on the other hand in the case of the traders the acquisition of animal articles as reflected in the stocksof a trader would be solely be for the purpose of sale. Hence, the imposition of the requirement of personal bonafide use in the caseof traders cannot be said to be discriminatory or arbitrary or irrational or perverse entitling the Appellants to continue to havecontrol thereover.



control thereover.

WHETHER THE IVORY VESTS IN THE GOVERNMENT?

96. We, however, do not agree with the contention of Mr. Malhotra that having regard to the fact that appellants have admittedlybeen found to be in possession of animal article, they have committed an offence and as such they would come within the purviewof Section 39(a)(i) of the Act as a result whereof the same could vest in the State.

97. The question as to whether an offence under the Act has been committed or not at that stage cannot be determined. Such adetermination furthermore cannot be left for adjudication at the hands of the executive authority. As and when a seizure is madeand the trader is prosecuted for alleged commission of an offence having regard to Sub-section 7 of Section 49-C of the Act;adjudication therefor must be made by a competent court of law having jurisdiction in this behalf. Before a person is convicted aCourt has to arrive at the finding that the accused has committed an offence wherefor a full-fledged criminal trial would benecessary. In absence of such criminal trial and offence having been found committed, Section 39 may not have any application. Inthat view of the matter it is evident that the properties do not stand vested in the Government in terms thereof.

HOW THE DICHOTOMY SHOULD BE RESOLVED?

98. The question, however, would remain as to what would happen to the property in question. In our opinion, the answer must befound out by reading all the provisions in their entirety.

99. It is now well-settled that for the purpose of interpretation of statute the entire statute is to be read in entirety. The purportand object of the Act must be given its full effect.

100. Furthermore, in a case of this nature, principles of purposive construction must come into play.

101. In Chief Justice of A.P. v. L.V.A. Dikshitulu [AIR 1979 SC 193 : (1979) 2 SCC 34], this Court observed:

"The primary principle of interpretation is that a Constitutional or statutory provision should be construed "according to the intent ofthey that made it" (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseologyemployed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the samemust be given effect to, regardless of the consequence that may follow. But if the words used in the provision are imprecise,protean or evocative or can reasonably bear meanings more than one, the rule of strict grammatical construction ceases to be asure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrasesemployed, it is legitimate for the Court to go beyond the arid literal confines of the provision and to call in aid other well-recognisedrules of construction, such as its legislative history, the basis scheme and framework of the statute as a whole, each portionthrowing light, on the rest, the purpose of the legislation, the object sought to be achieved, and the consequence that may flowfrom the adoption of one in preference to the other possible interpretation.

102. In Kehar Singh v. State (Delhi Admn.) [AIR 1988 SC 1883 : (1988) 3 SCC 609], this Court held:

"During the last several years, the 'golden rule' has been given a go-by. We now look for the "intention" of the legislature or the'purpose' of the statute. first, we examine the words of the statute. If the words are precise and cover the situation on hand, wedo not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous,uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of thelegislature rational meaning. We then examine every word, every section and every provision. We examine the act as a whole. Weexamine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look atthe whole situation and not just one-to-on relation. We will not consider any provision out of the framework of the statute. We willnot view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in thecircumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law asa whole and to avoid undesirable consequence."

103. In District Mining Officer v. Tata Iron & Steel Co. [JT 2001 (6) SC 183 : (2001) 7 SCC 358], this Court stated:

"A statute is an edict of the legislature and in construing a statute, it is necessary, to seek the intention of its maker. A statute hasto be construed according to the intent of them that make it hand the duty of the court is to act upon the true intention of thelegislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation whichrepresents the true intention of the legislature. This task very often raises difficulties because of various reasons, inasmuch as thewords used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium toconvey one's thought or that the assembly of legislatures consisting of persons of various shades of opinion purport to convey ameaning which may be obscure. It is impossible even for the most imaginative legislature to forestall exhaustively situations andcircumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of thecourts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil orto effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on informationderived from past and present experience. It may also be designed by use of general words to cover similar problems arising infuture. But, from the very nature of things, it is impossible to anticipate fully in the varied situations arising in future in which theapplication of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to bein many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process ofconstruction combines both literal and purposive approaches. In other words, the legislative intention i.e the true or legal meaning ofan enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose orobject which comprehends the mischief and its remedy to which the enactment is directed."

104. In State of A.P. v. Mc. Dowell Company [AIR 1996 SC 1627], this Court held:

"An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composedas they are of the representatives of the people, are supposed to know and be aware of the need of the people and what is goodand bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the

case of administrative action, the scope of judicial review is limited to three grounds viz., (i) unreasonableness, which can moreappropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (See Council of Civil Services Union v. Minister for theCivil Services (1985 AC 374), which decision has been accepted by this Court as well). The applicability of doctrine of proportionalityeven in administrative law sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v. Secretary of Statefor the Home Department Ex-parte Bring, (1991 AC 696 at 766-67 and 762). It would be rather odd if an enactment were to bestruck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled."



struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled."

105. In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors. [(2003) 4 SCC 712] this Court noticed:

"In Reserve Bank of India v. Peerless Co. reported in 1987(1) SCC 424, this Court said:-

"Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is thetexture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes thetextual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge,the statute must be read, first a whole and then section by section, clause by clause, phrase by phrase and word by word. If astatute is looked at, in the context of its enactment, with the glasses of the statute maker, provided by such context, it scheme,the sections clause,s phrases and words may take colour and appear different than when the statute is looked at without theglasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, eachclause, each phrase and each word is meant and designed to any as to fit into the scheme of the entire Act. No part of a statuteand no word of a statute can be construed in isolation, Statutes have to be construed so that every word has a place andeverything is in its place..."

In "The Interpretation and Application of Statutes" by Reed Dickersen, the author at page 135 has discussed the subject whiledealing with the importance of context of the statute in the following terms:-

"...The essence of the language is to reflect, express, and perhaps even effect the conceptual matrix of established ideas andvalues that identifies the culture to which it belongs. For this reason, language has been called 'conceptual map of humanexperience'."

The purport and object of the Statute is to see that a Tribunal becomes functional and as such the endeavours of the Court wouldbe to see that to achieve the same, an interpretation of Section 10 of the Act be made in such a manner so that appointment of aPresident would be possible even at the initial constitution thereof.

Such a construction is permissible by taking recourse to the doctrine of strained construction, as has been succinctly dealt with byFrancis Bennion in his Statutory Interpretation. At Section 304, of the treatise; purposive construction has been described in thefollowing manner:-

"A purposive construction of an enactment is one which gives effect to the legislative purpose by -

(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Codecalled a purposive-and-literal construction), or

(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called apurposive-and-strained construction).

In DPP v. Schildkamp (1971) AC 1, it was held that severance may be effected even where the 'blue pencil' technique isimpracticable.

In Jones v. Wrotham Park Settled Estates (1980) AC 74 at page 105, the law is stated in the following terms:-

"..I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used wouldlead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engagedremains one of construction, even where this involves reading into the Act words which are not expressly included in it. KamminsBallrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. (1971 AC 850) provides an instance of this; but in that case the threeconditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a considerationof the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy;secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with aneventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state withcertainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had theirattention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court ofjustice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a

written law which Parliament has passed."

In Principles of Statutory Interpretation of Justice G.P. Singh, 5th Edition, 1992, it is stated:

"The Supreme Court in Bangalore Water Supply v. A. Rajappa (AIR 1978 SC 548) approved the rule of construction stated byDENNING, L.J. while dealing with the definition of 'Industry in the Industrial Disputes Act, 1947. The definition is so general andambiguous that BEG, C.J. said that the situation called for "some judicial heroics to cope with the difficulties raised". K. IYER, J., whodelivered the leading majority judgment in that case referred with approbation the passage extracted above from the judgment ofDENNING, L.J. in Seaford Court Estates Ltd. v. Asher. But in the same continuation he also cited a passage from the speech of LORDSIMONDS in the case of Magor & St. Mellons R.D.C. v. Newport Corporation, 1951(2) All ER 839 as if it also found a part of thejudgment of DENNING, L.J. This passage reads: "The duty of the court is to interpret the words that the legislature has used. Thosewords may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discoveryare strictly limited." As earlier noticed LORD SIMONDS and other Law Lords in Magor and St. Mellon's case were highly critical of theviews of DENNING, L.J. However, as submitted above, the criticism is more because of the unconventional manner in which the ruleof construction was stated by him. In this connection it is pertinent to remember that although a court cannot supply a real casusomissus it is equally clear that it should not so interpret a statute as to create a casus omissus when there is really none."

In Hameedia Hardware Stores v. B. Mohan Lal Sowcar, reported in (1988) 2 SCC 513 at 524 the rule of addition of word had beenheld to be permissible in the following words:-

"We are of the view that having regard to the pattern in which Clause (a) of Sub-section (3) of Section 10 of the Act is enactedand also the context, the words 'if the landlord required it for his own use or for the use of any member of his family' which arefound in Sub-clause (ii) of Section 10(3)(a) of the Act have to be read also into Sub-Clause (iii) of Section 10(3)(a) of the Act.Sub-clauses (ii) and (iii) both deal with the non-residential buildings. They could have been enacted as one sub-clauses by adding aconjunction 'and' between the said two sub-clauses, in which event the clause would have read thus: 'in case it is a non-residentialbuilding which is used for the purpose of keeping a vehicle or adapted for such use if the landlord required it for his own use or forthe use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or



the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town orvillage concerned which is his own; and in case it is any other non-residential building, if the landlord or member of his family iscarrying on, a non-residential building in the city, town or village concerned which is his own'. If the two sub-clauses are not soread, it would lead to an absurd result.

In Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and Ors.reported in (1990) 3 SCC 682, this Court held:

"The court has to interpret a statute and apply ti to the facts. Hans Kelsen in his Pure Theory of Law. (p. 355) makes a distinctionbetween interpretation by the science of law or jurisprudence on the one hand and interpretation by a law-applying organ(especially the court) on the other. According to him "jurisprudential interpretation is purely cognitive ascertainment of the meaningof legal norms. In contradistinction to the interpretation by legal organs, jurisprudential interpretation does not create law". "Thepurely cognitive interpretation by jurisprudence is therefore unable to fill alleged gaps in the law. The filling of a so-called gap in thelaw is a law-creating function that can only be performed by a law-applying organ; and the function of creating law is not performedby jurisprudence interpreting law. Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm.Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legalorgan who, according to the legal order, is authorised to apply the law". According to the author if law is to be applied by a legalorgan, he must determine the meaning of the norms to be applied : He must 'interpret' those norms (p. 348). Interpretationtherefore is an intellectual activity which accompanies the process of law application in its advance from a higher level to a lowerlevel. According to him, the law to be applied is a frame. "There are cases of intended or unintended indefiniteness at the lower leveland several possibilities are open to the application of law." the traditional theory believes that the statute, applied to a concretecase, cane always supply only one correct decision and that the positive-legal 'correctness' of this decision is based on the statuteitself. This theory describes the interpretative procedure as if it consisted merely in an intellectual act of clarifying or understanding;as if the law-applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the variousexisting possibilities only one correct choice could be made in accordance with positive law. According to the author : "The Legalact applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meaningsof the legal norms, (b) with the will of the norm-creating authority that is to be determined somehow, (c) with the expression whichthe norm-creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case towhich the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other.In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every actis legal that stays within the frame."

In S. Gopal Reddy v. State of Andhra Pradesh reported in (1996) 4 SCC 596 this Court observed:

"It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while

interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve whileinterpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary."

106. (See also DLF Qutab Enclave Complex Edu. Charit. Trust v. State of Haryana and Ors. 2003 (2) SCALE 145).

107. The words, which are used in declaring the meaning of other words may also need interpretation and the legislature may use aword in the same statute in several different senses. In hat view of the matter, it would not be correct to contend that theexpression as defined in the interpretation clause would necessarily carry the same meaning throughout the statute.

108. The question came up for consideration before this Court in State of Maharashtra v. Indian Medical Association and Ors.[(2002) 1 SCC 580] wherein this Court speaking through one of us (Khare V.N., CJI) was concerned with the term "management"occurring in Maharashtra University of Health Sciences Act, 1998. Therein a question arose as to whether the State Government isrequired to obtain the approval of the Medical Council of India for establishment of new medical college. "Management" as containedin Section 2(21) of the Act, which was in the following terms:-

"Section 2. In this Act, unless the context otherwise requires, -

(21) "Management' means the trustees, or the managing or governing body, by whatever name called, of any trust registered underthe Bombay Public Trusts Act, 1950 Bom. XXIX of 1950 or any society registered under the Societies Registration Act, 1860 21 of1800 under the management of which one or more colleges or recognised institutions or other institutions are conducted andadmitted to the privileges of the University.

Provided that, in relation to any college or institution established or maintained by the Central Government or the State Governmentor a local authority such as a Zilla Parishad, municipal council or municipal corporation, it means, respectively, the CentralGovernment or the State Government or the concerned local authority that is the Zila Parishad, municipal council or municipalcorporation, as the case may be."

109. The question which arose for consideration was as to whether the State Government would come within the purview of thesaid Act. This Court answered the said question in the negative holding that the expression "Management' must be read contextuallyin the following terms:

"We are, therefore, of the opinion that the defined meaning of the expression 'management' cannot be assigned or attributed to theword 'management' occurring in Section 64 of the Act. The word 'management' if read in the context of the provisions of Section 64of the Act, means any one else exception the State Government applying to a State Government for permission to establish theproposed medical college at purposed location to be decided by the State Government."

110. The doctrine of purposive construction, thus, must be applied in a situation of this nature.

111. A trader in terms of a statute is prohibited from carrying on trade. He also cannot remain in control over the animal article. Thelogical consequence wherefor would be that he must be deprived of the possession thereof. The possession of the animal articleincluding imported ivory must, therefor,e be handed over to the competent authority. In a case of this nature where a statue hasbeen enacted in public interest, restriction in the matter of possession of the property must be held to be implicit. If section 49(7) isnot so construed, it cannot be given effect to.

112. We, therefore, are of the opinion that the appellants have no right to possess the articles in question. Keeping in view of thefact that the provisions of the statute have been held to be intra vires the question of compensating the appellants would not ariseas vesting of possession thereof in the State must be inferred by necessary implication.



as vesting of possession thereof in the State must be inferred by necessary implication.

ARE THE PROVISIONS OF THE AMENDING ACT VIOLATIVE OF THE RIGHT OF PROPERTY OF THE APPELLANTS?

113. It is true that right to property is a human right as also a constitutional right. But it is not a fundamental right. Each and everyclaim to property would not be property right.

114. Control of property by the State short of deprivation would not entail payment of compensation. ( See Davies v. Minister ofLand, Agriculture and Water Development [1997] 1 LRC 123 (Zimbabwe Supreme Court) [Interpreting Convention Rights by HughTomlinson and Vina Shukla - page 470]

115. As at present advised, we do not intend to deal with the question as regard sovereign power of the State via-a-vis the maxim"salus populi suprema lex" as stated in Charan Lal Sahu v. Union of India [(1990) 1 SCC 613], the same may have to be consideredin an appropriate case.

ARE THE GUIDELINES CONSTITUTIONAL?

116. We, however, are of the opinion that the guidelines issued by the Central Government do not meet the requirements of lawparticularly Section 63 of the Act. Keeping in view the clear and unambiguous provisions contained in Sub-section (1), (3), (5) and(6) of Section 49-C, the Central Government could not have directed that the appellants would be entitled to only one piece ofarticle and the rest would be destroyed. These guidelines, therefore, in our opinion cannot be given effect to and the appellantsmay pursue their remedies, if any, in terms of Sub-section (3) of Section 49-C of the Act and their applications filed in this behalf, ifany, must be disposed of in terms of the aforementioned law.

CONCLUSION:

117. We, therefore, are of the opinion that the respondents would be entitled to take physical possession of the ivory now inseizure. The question, however, would be as to whether the Central Government should destroy the articles including idols of godsand goddesses and household items like sofa sets depicting cultural and religious heritage.

118. It is stated that similar articles are being displayed in museums as a part of cultural and religious heritage of India.

119. In view of our findings aforementioned, the appropriate authority would be entitled to continue to keep in possession the saidarticles. We, however, direct that the same be kept at appropriate museums or at such suitable places where the statutoryauthorities feel fit and proper but they should not be destroyed.

120. With the aforementioned directions and observations, these appeals and writ petition are dismissed.


Interlocutory Application No. 376 of 2003 in Writ Petition (Civil) No. 13381 of 1984

Hon'ble Judges: S.B. Shah and B.N. Agrawal, JJ.

Counsels: For Appearing parties: Altaf Ahmed, Additional Solicitor General, Dipankar Gupta, Rakesh Dwivedi, Dinesh Dwivedi, R.K. Jain, C.S.Vaidyanathan, Sr. Advs., Party in person, Krishan Mahajan, A.C., Sushil Kumar Jain, Imtiaz Ahmed, Naghma Imtiaz, V.N. Raghupathy,Atish Dipankar, Santosh Kumar, Chandra Kanta Nayak, Ajay Kr. Aggarwal in person, Kamlendra Mishra, A. Mariarputham, P.Parmeswaran, Aruna Mathur, Rajeev Sharma, Pawan, Anil Katiyar, Hemant Sharma, Niranjana Singh, Ashok K. Srivastava, VijayPanjwani, Pradeep Misra, Manoj K. Mishra, Sumanat Bhardwaj and Mridula Ray Bhardwaj, Advs.

Catch Words: Damage, Heritage, Reclamation

Acts/Rules/Orders: Water (Prevention and Control of Pollution) Act, 1974; Environment Protection Act, 1986 - Section 3; Indian Penal Code; Preventionof Corruption Act

Cases Referred: M.C. Mehta (Taj Trapezium Matter) v. Union of India and Ors., (1997) 2 SCC 353

Case Note:

Environment � The court in its earlier orders regarding pollution of atmosphere in the vicinity of Taj Mahal had appointeda committee to report the progress of the action being taken by Agra Mission Management Board � C.B.I. enquiry into thematter of development of heritage corridor by NPCC. � C.B.I. was directed to interrogate the persons involved and toverify their accounts as it was alleged that the concerned officials and the Chief Minister had released Rs. 17 croreswithout proper sanction � A detailed report was submitted to Supreme Court on this issue � Direction given to the CentralGovt. as well as to the State Govt. to hold departmental enquiry against the concerned Secretaries as well as theManaging Director of N.P.C.C. who had undertaken the project � Further directions given to C.B.I. to lodge F.I.R. andmake further investigations in accordance with law

ORDER

1. On the basis of the decision rendered by this Court on 31.12.1996 in Writ Petition (C) No. 13381 of 1984 titled M.C. Mehta (TajTrapezium Matter) v. Union of India and Ors. [(1997) 2 SCC 353], various I.As. were filed before this Court either for removal ofthe industries which are polluting the atmosphere in the vicinity of Taj Mahal or for removal of the encroachment becauseappropriate steps were not taken by the concerned authorities. For this purpose, this Court had appointed a Monitoring Committeeto report to this Court for the action being taken by the Agra Mission Management Board and other authorities. On 25.3.2003 onbehalf of the Monitoring Committee a report was submitted before this Court wherein it was prayed that respondents including theState of U.P. be directed to immediately stop the diversion of the river Yamuna and any further action on the bed of the river in



State of U.P. be directed to immediately stop the diversion of the river Yamuna and any further action on the bed of the river inproximity of the International Heritage Monuments till the Union Ministry clears such projects upon an environment impactassessment report. On the said application this Court issued notice on 27.3.2003. At that time, learned counsel for the MonitoringCommittee as well as Mr. M.C. Mehta insisted that authorities are proceeding with the construction without appropriate clearance.Still, however, we thought that as the State Government and the Central Government are involved in the matter, they wouldproceed in accordance with law. Therefore, stay order as prayed for was not granted. Subsequently, on 8.4.2003 along with othermatters this I.A. was also considered. On 9.4.2003 on the request of the learned counsel for the Union of India for studying thedetailed project report and for filing necessary affidavit, matter was adjourned for three weeks. At the relevant time counsel for theUnion of India did not know whether officers of the U.P. Government were proceeding with construction without clearance from theCentral Government.

2. Therefore, on 1.5.2003, the Court perused the affidavit filed on behalf of the Union Government and recorded as under:-

"Heard the learned counsel for the parties. In the affidavit dated 29.4.2003 of Dr. (Mrs.) Sunita V. Auluck, Addl. Director, Ministry ofEnvironment and Forests, New Delhi (tendered in Court) the area which is sought to be reclaimed is divided into four parts asunder:-

Component A:- On the right bank between upstream end of Taj Mahal to upstream end of Fort (near Railway Bridge).

Component B:- On left bank between Ram Bagh and opposite Agra Fort and upstream of Rambagh.

Component C:- On the right bank upstream of Agra Fort upto the point opposite of Ram Bagh.

Component D:- On the left bank from the point opposite the upstream of Agra Fort to near Mehtab Bagh and right bank down streamof Taj.

For Component A, learned counsel appearing for the State Government states that at present no work of reclamation of land isgoing on. For Component B. on the left bank between Ram Bagh and opposite Agra Fort, it is stated that reclamation of 25 acres ofland out of 40 acres of land is over. With regard to Components C and D, no reclamation work is done. He further submits thathenceforth the State Government would not carry out any further reclamation work except filing of sand. For the work done in thearea of Components A and B, it would be open to the State Government to have temporary embankment by using the stones andclay. However, this would be subject to further directions and clearance by the Central Government under Section 3 of theEnvironment Protection Act, 1986.

Meantime, Central Water Research Station Khadakwasla would assess the behaviour of the river and impact of reclamation of riverbed on the monuments in Agra and its protection thereof. The entire cost of this study would be born by the Central Government."

3. We directed the Central Water Power research Station, Khadakwasla to assess the behaviour of the river and impact ofreclamation on river bed on the monuments in Agra and its protection thereof as we were under the impression that the project wascarried out as per the direction of the Central Government. Hence, we, directed the Central Government to bear the costs of theProject. From The said affidavit it was apparent that the construction work commenced without clearance and this Court was notinformed about it at the relevant time.

4. Thereafter on 16.7.2003, this Court directed CBI inquiry in the matter, wherein it was inter alia mentioned that for some ulteriormotive under the directions of some persons without getting necessary clearance form the concerned authority, work of the projecthad continued and that NPCC which the Government of India Undertaking has placed a board at the site stating: NPCC LTD., AGOVERNMENT OF INDIA ENTERPRISES, ENGAGED FOR DEVELOPMENT OF HERITAGE CORRIDOR FOR TTZ AREA AT AGRA UNDER THEDIRECTIVE OF HON'BLE SUPREME COURT OF INDIA. When this was pointed out to the learned counsel for the NPCC, he submittedthat there was some mistake committed because the work orders were issued by the Government. At that time also we had notagreed with the said submission. It was also mentioned that it was painful to note that instead of creating something new whichcould be classified as a World Heritage or National Heritage, concerned persons who were in power were inclined to damage orendanger the World Heritage by their hasty/irregular/illegal activities. Therefore, CBI was directed to submit preliminary report withinfour weeks. For this learned Addl. Solicitor General Mr. Altaf Ahmed stated that report would be submitted at the earliest.

5. We here note down that the said statement made before the Court is fully complied with.

6. Thereafter on 25.7.2003, we directed the Committee to find out whether any damage is likely to be caused by the constructionwork carried out by the government agency.

7. In the said inquiry report the CBI after recording the statements of various persons including the persons involved stated that theconclusions drawn in the preliminary report are based on examination of documents and examination of officers/persons which couldbe done during the inquiry and that conclusions were provisional because some further inquiry was necessary. Mainly, it was pointedout that opinion of Forensic Expert was also required to be obtained as there was tampering of records and interpolations. Theconclusions are summarised below:-

1. The techno-feasibility report, detailed project reports (DPRs), detailed drawings and cost estimates were not prepared before thephysical commencement of work of Taj Heritage Corridor Project at Agra.

2. The techno-feasibility report and DPRs were not sent to the Government of India for necessary approvals and clearances.

3. The meeting of the Mission Management Board held on 12.10.2002 does not appear to have taken a decision for immediatecommencement of work. It had only decided for preparation of techno-feasibility report and DPRs. Only. The actual commencementof work would have logically followed preparation of techno-feasibility report and DPRs. And detailed drawing and cost estimates andtheir necessary approval.

4. On the basis of the above, a note in file of the Environment Department, U.P. was put up before the Chief Secretary, U.P. statingthat the Mission Management Board had decided to get DPRs. and techno-feasibility reports prepared for which it was also decidedin the meeting to release required funds. It was further recorded in the said note itself that the proceedings of the said meeting wasprepared accordingly and placed in the file for approval. But the proceedings of the meeting recorded a different decision so much sothat the words 'tatkal karya prarambha karne' (immediate commencement of work) had been added in the proceedings apparentlywith ulterior motives. Initials of the Chief Secretary, UP were also obtained on each page of the minutes of the meeting.

5. The file was, therefore, sent to the office of the Chief Minister, UP Ms. Maya Wati through Shri Naseemuddin Siddiqui, attached



5. The file was, therefore, sent to the office of the Chief Minister, UP Ms. Maya Wati through Shri Naseemuddin Siddiqui, attachedMinister, stating that the Chief Secretary, UP had approved the decision of the Mission Management Board for immediatecommencement of the work, preparation of techno-feasibility report and DPRs. The said note was not routed through Shri D.S.Bagga, Chief Secretary, UP. It was proposed in the note that approval be accorded for taking action as per the approval of theChief Secretary and also for informing the Ministry of Environment and Forest, Government of India and the Hon'ble Supreme Courtthrough quarterly reports. The said proposal for starting work in terms of the purported approval of the Chief Secretary wasaccorded approval by the Chief Minister which was communicated by Shri P.L. Punia, Principal secretary to the Chief Minister, UPvide his note recorded in the file. This shows that the office of the Chief Minister was apprised of the impending construction at thesite as the approval of the Chief Minister was communicated as stated above.

6. No tender enquiry was floated for preparation of techno-feasibility report detailed project report (DPR) and for awarding the workfor execution.

7. No work order was issued to NOPCC for executing the work specifying the material and technical specifications and quantities ofdifferent works.

8. Work was started by NPCC on the verbal instructions of Shri R.K. Sharma, Secretary, Environment, UP for which no Memorandumof Understanding or Agreement was signed between the State Government and NPCC. Only a copy of the Government Order dated01/11/2002 sanctioning Rs. 17 crores for this project was sent to NPCC.

9. The entire work of the project was left at the mercy of NPCC and its subcontractor M/s. Ishvakoo (India) Pvt. Limited and noGovernment Department or authority or agency was made responsible to supervise the ongoing work, to check the material andtechnical specifications and to take measurement of the work executed by NPCC or its subcontractor.

10. NPCC entered in a pre-tender tie up with M/s. Ishvakoo (India) Pvt. Limited for execution of this project without exploringpossibility of entering into such arrangement with other parties on competitive terms.

11. No approval of the Cabinet Committee on Economic Affairs (CCEA) was obtained before commencement of work of the project,contrary to the decisions taken jointly by the Government of India and the Government of UP which was reiterated on more thanone occasions in the files of the Environment Department.

12. An amount of Rs. 17 crores was unauthorisedly released by Shri R.K. Sharma, Secretary, Environment, UP for commencement ofthe work and preparation of DPR and techno-feasibility report. No approval was obtained from the departmental Minister for releaseof the said amount. The government Order was issued in the name of the Government without obtaining the approval of thedepartmental Minister or the Chief Minister by sending a specific proposal.

13. Contrary to the provisions existing in the State Government which requires that in case of every non-recurring expenditure ofRs. 5 crores and above, approval of the Expenditure Finance Committee (EFC) of the State Government is required, no such approvalwas either sought or obtained before sanctioning the amount of Rs. 17 crores.

14. An amount of Rs. 20 crores was sanctioned by Shri Naseemuddin Siddiqui, presently Minister of Environment, UP for releasewithout approval of DPRs and techno-feasibility report and without consideration of the matter by the Expenditure FinanceCommittee (EFC) of the State Government and CCEA, Government of India.

15. Shri Siddiqui appears to have subsequently tampered with the file and to have made interpolations in the Government recordswith an objective to cover up the fact that he had sanctioned Rs. 20 crores on 21.5.2002.

16. Shri Siddiqui and Dr. V.K. Gupta, the present Secretary, Environment, U.P. are reported to have pressurised Shri RajendraPrasad, Under Secretary, Environment Department, U.P. to tamper with the file and to make interpolations in the official records sothat his subsequent note in the file matched and was in the line with the interpolations made in the note of the Minister.

17. Shri K.C. Mishra, Secretary, Environment and Forest, Government of India appears to have tampered with the file and madeinterpolations in government records in order to cover up his omissions of not approving the proposals of his Joint Secretary andSpecial Secretary for writing to the State Government for a report and to ask them to carry out work only after necessary approvalsand clearances.

8. Thereafter as requested by the CBI further time was given by order dated 21.8.2003. In that order we had specifically directedthe CBI Officer to interrogate the persons involved and also to verify their assets because it was alleged that an amount of Rs. 17crores was released without proper sanction.

9. Thereafter a report was submitted on 11.9.2003 with following further conclusions--

15. An amount of Rs. 17 crores was unauthorisedly released by Shri R.K. Sharma, Secretary, Environment, U.P. without the approvalof the departmental Minister. (Ref. Para 3.1.E.4 page 64 and para 3.1.E.31, page 81)

16. Contrary to the provisions existing in the State Government which require that in case of every non-recurring expenditure of Rs.5 crores and above, approval of the Expenditure Finance Committee (EFC) of the State Government is required, no such approvalwas either sought or obtained before sanctioning the amount of Rs. 17 crores (Ref. Para 3.1.E.11, page 67).

17. An amount of Rs. 20 crores was sanctioned by Shri Naseemuddin Siddiqui, the then Minister of Environment, U.P. for releasewithout approval of DPRs and techno-feasibility reports and without clearance of the Expenditure Finance Committee (EFC) of theState Government and CCEA, Government of India (Ref. Para 3.1.E.39, page 86).

18. Shri Siddiqui subsequently tampered with the file and made interpolations in the Government records with an objective to coverup the fact that he had sanctioned Rs. 20 crores on 21/05/2003. (Ref. Para 3.1.E.40 (1 and 2) page 87).

19. Shri Siddiqui and Dr. V.K. Gupta, the present Secretary, Environment, U.P. pressurized Shri Rajendra, Prasad, Under Secretary,Environment Department, U.P. who also tampered with the file and made interpolations to cover the fact that the Minister hadsanctioned Rs. 20 crores. (Ref. Para 3.1.E.37, page 86).

20. Shri K.C. Mishra, Secretary, Environment and Forest Government of India tampered with the file and made interpolations inGovernment records in order to cover up his omissions of not approving the proposals of his Joint Secretary and Special Secretaryfor writing to the State Government for a report and to ask them to carry out work only after necessary approvals and clearances.He obscured some portions of the notes dated 21/10/2002 and 08/05/2003 of Dr. Saroj, Additional Director, Ministry of Environment



He obscured some portions of the notes dated 21/10/2002 and 08/05/2003 of Dr. Saroj, Additional Director, Ministry of Environmentand Forest so as to show that he was not a part of the decision making and had not shown his consent to the proposed project.(Ref. Para 3.1.E.42 page 89).

21. Central Forensic Science Laboratory has given a report that interpolations were made in the files by Shri Naseemuddin Siddiqui,the then Minister, U.P., Shri Rajendra Prasad, Under Secretary, U.P. and Shri K.C. Misra, Secretary, Environment and Forests,Government of India (Ref. Para 3.1.G.21, pages 106-107 and 3.1.E.44 (5-6), page 90).

22. Collection of information/intelligence and discreet verification of assets acquired/held by the persons/officers involved withdecision-making process in this case could not be completed. Considering the enormity of task, it is likely to take considerable time.(Ref. Para 3.1.K.1, page 112-113)."

10. On the basis of the said report further time was given to the CBI for verification of the assets of the persons/officers involvedand the same report inter alia reveals as under:--

"In addition to the above, enquiry was also made regarding the outflow of Rs. 17 crores, released by the State Government to M/sNPCC for this project, major part of which was paid by M/s NPCC to M/s Ishvakoo (India) Private Limited and M/s ConsultantArchitect and Planner Services Limited (CAPS).

11. Income Tax Returns of the following persons/officers were collected from different income tax authorities:

(i) Ms. Mayawati, former Chief Minister, Uttar Pradesh.

(ii) Shri Naseemuddin Siddiqui, the then Minister, Uttar Pradesh.

(iii) Shri K.C. Misra, the then Secretary, Minister of Environment and Forest, Government of India, New Delhi.

(iv) Shri D.S. Bagga, the then Chief Secretary, Government of Uttar Pradesh, Lucknow.

(v) Shri P.L. Punia, the then Principal Secretary to the Chief Minister, Uttar Pradesh.

(vi) Shri R.K. Sharma, the then Principal Secretary, Environment, Government of Uttar Pradesh."

12. Apart from what has been stated in the reports with regard to the assets, the learned Additional Solicitor General Mr. AltafAhmed, submitted that further inquiry/investigation is necessary by the CBI.

13. Considering the aforesaid report and the serious irregularities/illegalities committed in carrying out the so-called Taj HeritageCorridor Project, we direct:--

(a) the Central Government to hold immediate departmental inquiry against Shri K.C. Mishra, former Secretary, Environment, Union ofIndia;

(b) the State of Uttar Pradesh to hold departmental inquiry against Shri R.K. Sharma, former Principal Environment Secretary, ShriP.L. Punia, former Principal Secretary to Chief Minister, Shri D.S. Bagga, Chief Secretary, Shri V.K. Gupta, former Secretary -Environment; and

(c) NPCC or the competent authority including the Central Government to hold inquiry against Shri S.C. Bali, Managing Director ofNPCC;

(d) the State Government as well as the concerned officers of the Central Government are directed to see that departmental inquiryis completed within four months from today. The State of U.P. and Central Government would appoint respective inquiry officers forholding inquiry, within a period of seven days from today;

(e) It would be open to the State Government if called for to pass order for suspension of delinquent officers in accordance with therules;

(f) For the officers and the persons involved in the matter, CBI is directed to lodge FIR and make further investigation in accordancewith law;

(g) CBI shall take appropriate steps for holding investigation against Chief Minister Ms. Mayawati and Nasimuddin Siddiqui, formerMinister for Environment, U.P. and other officers involved;

(h) Income Tax Department is also directed to cooperate in further investigation which is required to be carried out by the CBI.

(i) CBI would take into consideration all the relevant Acts i.e. IPC/Prevention of Corruption Act and the Water (Prevention andControl of Pollution) Act, 1974 etc.

(j) CBI to submit self contained note to the Chief Secretary to the Government of Uttar Pradesh as well as to the CabinetSecretary, Union Government and to the concerned Minister dealing with the NPCC.

14. Stand over for four months for report and compliance._

State of M.P. Vs. Kedia Leather & Liquor Ltd. and Ors.Decided On: 19.08.2003

Criminal Appeal Nos. 151-158 of 1996

Hon'ble Judges: Doraiswamy Raju and Arijit Pasayat, JJ.

Catch Words: Air Pollution, Civil Proceeding, Constitution of India, Damage, Delinquent, Oath, Pollution Control, Public Nuisance, Right to Live,Special Statute



Acts/Rules/Orders: Water (Prevention and Control of Pollution) Act, 1974 - Sections 30, 32 and 33; Air (Prevention and Control of Pollution) Act, 1981 -Sections 18, 20 and 22A; Criminal Procedure Code (CPC), 1973 - Sections 133, 144 and 397; Constitution of India - Article 21

Cases Referred: Vasant Manga Nikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by Lrs. and Anr., 1995 Supp. (4) SCC 54; Municipal Council,Palai through the Commissioner of Municipal Council, Palai v. T.J. Joseph, AIR 1963 SC 1561; Northern India Caterers (Private) Ltd.and Anr. v. State of Punjab and Anr., AIR 1967 SC 1581; Municipal Corporation of Delhi v. Shiv Shanker, 1971(1) SCC 442; Ratan LalAdukia and Anr. v. Union of India, AIR 1990 SC 104; Garnett v. Bradley, (1878) 3 AC 944 (HL); A.G. v. Moore, (1878) 3 Ex. D 276;R.S. Raghunath v. State of Karnataka and Anr., AIR 1992 SC 81; Pt. Rishikesh and Anr. v. Salma Begum (Smt.), 1995(4) SCC 718;Shri A.B. Krishna and Ors. v. The State of Karnataka and Ors., JT 1998(1) SC 613

Prior History: From the Judgment and Order dated 16.3.94 of the Madhya Pradesh High Court in Crl. R. Nos. 117/90, 156, 157, 178, 181, 183 and193/91 and Miscellaneous Crl. Case No. 553 of 1991

Case Note: Environment � Water (Prevention and Control of Pollution) Act, 1974 � Section 30, 32, 33 � Air (Prevention and Control ofPollution) Act � Section 18, 20, 22A � Criminal Procedure Code � Section 133, 144 � Sub-divisional magistrate servedorders directing respondents who owned industrial units to close their industries on the ground that serious pollution wascreated by discharge of effluent from respective factories thereby causing a public nuisance � To bring in application ofSection 133 there must be immediate danger to the property and consequential nuisance to the public � Two statutesrelate to prevention and control of pollution and also provides for penal consequences in case of breach of statutoryprovisions � Provisions of the section are in the nature of preventive measures � Provisions of the two legislature appearto be mutually exclusive and question of repeal of Section 133 does not arise

JUDGMENT

1. View expressed by High Court of Madhya Pradesh, Jabalpur Bench at Indore holding that after introduction of Water (Preventionand Control of Pollution) Act, 1974 (hereinafter referred to as the 'Water Act') and the Air (Prevention and Control of Pollution) Act,1981 (hereinafter referred to as the 'Air Act'), there was implied repeal of Section 133 of the Code of Criminal Procedure, 1973 (inshort the 'Code', is questioned in these appeals.

2. Factual background needs to be noted in brief as legal issues of pristine nature are involved. The Sub-Divisional Magistrate(hereinafter referred to as the 'SDM') of the area concerned served orders in terms of Section 133 of the Code directing therespondents who owned industrial units to close their industries on the allegation that serious pollution was created by discharge ofeffluent from their respective factories and thereby a public nuisance was caused. The preliminary issues and the proceedingsinitiated by the SDM were questioned by the respondents herein before the High Court under Section 397 of the Code.

3. The main plank of their arguments before the High Court was that by enactment of Water Act and the Air Act there was impliedrepeal of Section 133 of the Code.

4. The plea was contested by the SDM on the ground that the provisions of Water Act and the Air Act operate in different fields,and, therefore, the question of Section 133 of the Code getting eclipsed did not arise.

5. The High Court referred to various provisions of the Water Act and Air Act and compared their scope of operation with Section133 of the Code.

6. The High Court was of the view that the provisions of the Water and the Air Acts are in essence elaboration and enlargement ofthe powers conferred under Section 133 of the Code Water and Air pollution were held to be species of nuisance or of the conductof trades or occupation injuries to the health or physical comfort to the community. As they deal with special types of nuisance,they ruled out operation of Section 133 of the Code. It was concluded that existence and working of the two parallel provisionswould result not only in inconvenience but also absurd results. In the ultimate, it was held that the provisions of the Water and AirActs impliedly repealed the provisions of Section 133 of the Code, so far as allegations of public nuisance by air and water pollution

by industries or persons covered by the two Acts are concerned. As a consequence, it was held that the SDM had no jurisdiction toact under Section 133 of the Code.

7. Learned counsel for the appellant-State submitted that the view expressed by the High Court is not legally tenable. The threestatues operate in different fields and even though there may be some amount of over-lapping, they can co-exist. A statutoryprovision cannot be held to have been repealed impliedly by the Court. Learned counsel for the respondents-units submitted thatthis Court had occasion to pass interim orders on 2.1.2001. Exception was taken to the manner of functioning of the MadhyaPradesh Pollution Control Board (in short the 'Board') and directions were given to take necessary action against the delinquentofficials. Proceedings were initiated and on the basis of the reports filed by the functionaries of the reconstituted Board, functioningof the factories had been discontinued. The legality of the proceedings and the orders passed therein have been questioned and theBoard has been moved for grant of necessary permission for making the factories functional. In this background it is submitted thatthe issues raised have really become academic. Though, learned counsel for the appellant-State and the Board accepted theposition to be factually true, it is submitted that considering the impact of the decision which would have far reachingconsequences, the legal issues may be decided and appropriate directions should be given so far as the functioning or closure of thefactories aspect is concerned.

8. Section 133 of the Code appears in Chapter X of the Code which deals with maintenance of public order and tranquility. It is apart of the heading 'public nuisance'. The term 'nuisance' as used in law is not a term capable of exact definition and it has beenpointed out in Halsbury's Laws of England that "even at the present day there is not entire agreement as to whether certain acts oromissions shall be classed as nuisances or whether they do not rather fall under other divisions of the law of tort". In Vasant MangaNikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by Lrs. and Anr. (1995 Supp. (4) SCC 54) it was observed that nuisance isan inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precisedefinition. To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequentialnuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. Theobject and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in thesense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. It applies to acondition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what mayhappen at some later point of time. It does not deal with all potential nuisance, and on the other hand applies when the nuisance is



happen at some later point of time. It does not deal with all potential nuisance, and on the other hand applies when the nuisance isin existence. It has to be noted that some times there is a confusion between Section 133 and Section 144 of the Code. While thelatter is more general provision the former is more specific. While the order under the former is conditional, the order under the latteris absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings.

One significant factor to be noticed is that person against whom action is taken is not an accused within the meaning of Section133 of the Code. He can give evidence on his own behalf and may be examined on oath. Proceedings are not the proceedings inrespect of offences. The Water Act and the Air Act are characteristically special statutes.

9. The two statutes relate to prevention and control of pollution and also provides for penal consequences in case of breach ofstatutory provisions. Environmental, ecological air and water pollution amount to violation of right to life assured by Article 21 of theConstitution of India, 1950 (in short 'the Constitution'). Hygienic environment is an integral facet of healthy life. Right to live withhuman dignity becomes illusory in the absence of humane and healthy environment.

10. Chapter V of the Water Act deals with prevention and control of water pollution. Similarly, Chapter IV of the Air Act deals withprevention and control of air pollution. Sections 30, 32 and 33 of the Water Act deal with power of the State Board to carry outcertain works, emergency measures in certain cases and power of Board to make application to the Courts for restrainingapprehended pollution respectively. Under Sections 18, 20 and 22-A of the Air Act deal with power to give directions, power to giveinstructions for ensuring standards and power of Board to make application to Court for restraining persons from causing air pollutionrespectively.

11. The provisions of Section 133 of the Code can be culled in aid to remove public nuisance caused by effluent of the dischargeand air discharge causing hardship to the general public. To that extent, learned counsel for the appellant is correct in hissubmission.

12. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature whileenacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not providea repealing provisions, the intention is clear not to repeal the existing legislation. (See: Municipal Council Palai through theCommissioner of Municipal Council, Palai v. T.J. Joseph (AIR 1963 SC 1561), Northern India Caterers (Private) Ltd. and Anr. v. Stateof Punjab and Anr. (AIR 1967 SC 1581), Municipal Corporation of Delhi v. Shiv Shanker (1971 (1) SCC 442) and Ratan Lal Adukia andAnr. v. Union of India (AIR 1990 SC 104). When the new Act contains a repealing section mentioning the Acts which it expresslyrepeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (Persone velrei) est exlusio alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnettv. Bradley (1878) 3 AC 944 (HL). The continuance of existing legislation, in the absence of an express provision of repeal by

implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessaryimplication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and thatthe two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlierAct, a repeal will not be inferred. (See: A.G. v. Moore (1878) 3 Ex. D 276, Ratanlal's case (supra) and R.S. Raghunath v. State ofKarnataka and Anr. (AIR 1992 SC 81).

13. The necessary questions to be asked are:

(1) Whether there is direct conflict between the two provisions.

(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;

(3) Whether the two laws occupy the same field.

(See: Pt. Rishikesh and Anr. v. Salma Begum (Smt.) (1995(4) SCC 718), and Shri A.B. Krishna and Ors. v. The State of Karnatakaand Ors. (JT 1988(1) SC 613)

14. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did notintend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does notmore than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by acomparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Courtleans against implying a repeal, "unless two Act are so plainly repugnant to each other that effect cannot be given to both at thesame time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together." (See Craies onStatute Law, Seventh Edition, page 366, with reference to Re: Barrey (1936) Ch. 274). To determine whether a later statuterepeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act.Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The area of operationin the Code and the pollution laws in question are different with wholly different aims and objects; and though they alleviatenuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence sideby side.

15. While as noted above the provisions of Section 133 of the Code are in the nature of preventive measures, the provisionscontained in the two Acts are not only curative but also preventive and penal. The provisions appear to be mutually exclusive andthe question of one replacing the other does not arise. Above being the position, the High Court was not justified in holding thatthere was any implied repeal of Section 133 of the Code. The appeals deserve to be allowed to the extent indicated above, whichwe direct.

16. However, if applications are pending before the Board, it would be appropriate for the Board to take necessary steps for theirdisposal. The question whether there was no infraction under Section 133 of the Code or the two Acts is a matter which shall bedealt with by the appropriate forum, and we do not express any opinion in that regard.

M.C. Mehta Vs. Union of India (UOI) and Ors. On behalf of Monitoring Committee:Decided On: 18.09.2003





S.B. Shah and B.N. Agrawal, JJ.




Case Note: Environment � The court in its earlier orders regarding pollution of atmosphere in the vicinity of Taj Mahal had appointeda committee to report the progress of the action being taken by Agra Mission Management Board � C.B.I. enquiry into thematter of development of heritage corridor by NPCC. � C.B.I. was directed to interrogate the persons involved and toverify their accounts as it was alleged that the concerned officials and the Chief Minister had released Rs. 17 croreswithout proper sanction � A detailed report was submitted to Supreme Court on this issue � Direction given to the CentralGovt. as well as to the State Govt. to hold departmental enquiry against the concerned Secretaries as well as theManaging Director of N.P.C.C. who had undertaken the project � Further directions given to C.B.I. to lodge F.I.R. andmake further investigations in accordance with law

ORDER

1. On the basis of the decision rendered by this Court on 31.12.1996 in Writ Petition (C) No. 13381 of 1984 titled M.C. Mehta (TajTrapezium Matter) v. Union of India and Ors. [(1997) 2 SCC 353], various I.As. were filed before this Court either for removal ofthe industries which are polluting the atmosphere in the vicinity of Taj Mahal or for removal of the encroachment becauseappropriate steps were not taken by the concerned authorities. For this purpose, this Court had appointed a Monitoring Committeeto report to this Court for the action being taken by the Agra Mission Management Board and other authorities. On 25.3.2003 onbehalf of the Monitoring Committee a report was submitted before this Court wherein it was prayed that respondents including theState of U.P. be directed to immediately stop the diversion of the river Yamuna and any further action on the bed of the river inproximity of the International Heritage Monuments till the Union Ministry clears such projects upon an environment impactassessment report. On the said application this Court issued notice on 27.3.2003. At that time, learned counsel for the MonitoringCommittee as well as Mr. M.C. Mehta insisted that authorities are proceeding with the construction without appropriate clearance.Still, however, we thought that as the State Government and the Central Government are involved in the matter, they wouldproceed in accordance with law. Therefore, stay order as prayed for was not granted. Subsequently, on 8.4.2003 along with othermatters this I.A. was also considered. On 9.4.2003 on the request of the learned counsel for the Union of India for studying thedetailed project report and for filing necessary affidavit, matter was adjourned for three weeks. At the relevant time counsel for theUnion of India did not know whether officers of the U.P. Government were proceeding with construction without clearance from theCentral Government.










4. Thereafter on 16.7.2003, this Court directed CBI inquiry in the matter, wherein it was inter alia mentioned that for some ulteriormotive under the directions of some persons without getting necessary clearance form the concerned authority, work of the projecthad continued and that NPCC which the Government of India Undertaking has placed a board at the site stating: NPCC LTD., AGOVERNMENT OF INDIA ENTERPRISES, ENGAGED FOR DEVELOPMENT OF HERITAGE CORRIDOR FOR TTZ AREA AT AGRA UNDER THEDIRECTIVE OF HON'BLE SUPREME COURT OF INDIA. When this was pointed out to the learned counsel for the NPCC, he submittedthat there was some mistake committed because the work orders were issued by the Government. At that time also we had notagreed with the said submission. It was also mentioned that it was painful to note that instead of creating something new whichcould be classified as a World Heritage or National Heritage, concerned persons who were in power were inclined to damage or



could be classified as a World Heritage or National Heritage, concerned persons who were in power were inclined to damage orendanger the World Heritage by their hasty/irregular/illegal activities. Therefore, CBI was directed to submit preliminary report withinfour weeks. For this learned Addl. Solicitor General Mr. Altaf Ahmed stated that report would be submitted at the earliest.












9. The entire work of the project was left at the mercy of NPCC and its subcontractor M/s. Ishvakoo (India) Pvt. Limited and noGovernment Department or authority or agency was made responsible to supervise the ongoing work, to check the material and

technical specifications and to take measurement of the work executed by NPCC or its subcontractor.


















20. Shri K.C. Mishra, Secretary, Environment and Forest Government of India tampered with the file and made interpolations inGovernment records in order to cover up his omissions of not approving the proposals of his Joint Secretary and Special Secretaryfor writing to the State Government for a report and to ask them to carry out work only after necessary approvals and clearances.




























M.C. Mehta Vs. Union of India (UOI) and Ors. On behalf of Monitoring Committee: Decided On: 18.09.2003







ORDER



"Heard the learned counsel for the parties. In the affidavit dated 29.4.2003 of Dr. (Mrs.) Sunita V. Auluck, Addl. Director, Ministry ofEnvironment and Forests, New Delhi (tendered in Court) the area which is sought to be reclaimed is divided into four parts as

under:-




Component D:- On the left bank from the point opposite the upstream of Agra Fort to near Mehtab Bagh and right bank down stream














4. On the basis of the above, a note in file of the Environment Department, U.P. was put up before the Chief Secretary, U.P. stating

that the Mission Management Board had decided to get DPRs. and techno-feasibility reports prepared for which it was also decidedin the meeting to release required funds. It was further recorded in the said note itself that the proceedings of the said meeting wasprepared accordingly and placed in the file for approval. But the proceedings of the meeting recorded a different decision so much sothat the words 'tatkal karya prarambha karne' (immediate commencement of work) had been added in the proceedings apparentlywith ulterior motives. Initials of the Chief Secretary, UP were also obtained on each page of the minutes of the meeting.
























20. Shri K.C. Mishra, Secretary, Environment and Forest Government of India tampered with the file and made interpolations inGovernment records in order to cover up his omissions of not approving the proposals of his Joint Secretary and Special Secretaryfor writing to the State Government for a report and to ask them to carry out work only after necessary approvals and clearances.He obscured some portions of the notes dated 21/10/2002 and 08/05/2003 of Dr. Saroj, Additional Director, Ministry of Environmentand Forest so as to show that he was not a part of the decision making and had not shown his consent to the proposed project.(Ref. Para 3.1.E.42 page 89).














12. Apart from what has been stated in the reports with regard to the assets, the learned Additional Solicitor General Mr. Altaf

Ahmed, submitted that further inquiry/investigation is necessary by the CBI.
















Counsels: For Appearing parties: Altaf Ahmed, Additional Solicitor General, Dipankar Gupta, Rakesh Dwivedi, Dinesh Dwivedi, R.K. Jain, C.S.Vaidyanathan, Sr. Advs., Party in person, Krishan Mahajan, A.C., Sushil Kumar Jain, Imtiaz Ahmed, Naghma Imtiaz, V.N. Raghupathy,Atish Dipankar, Santosh Kumar, Chandra Kanta Nayak, Ajay Kr. Aggarwal in person, Kamlendra Mishra, A. Mariarputham, P.Parmeswaran, Aruna Mathur, Rajeev Sharma, Pawan, Anil Katiyar, Hemant Sharma, Niranjana Singh, Ashok K. Srivastava, VijayPanjwani, Pradeep Misra, Manoj K. Mishra, Sumanat Bhardwaj and Mridula Ray Bhardwaj, Advs.


Acts/Rules/Orders:

Water (Prevention and Control of Pollution) Act, 1974; Environment Protection Act, 1986 - Section 3; Indian Penal Code; Preventionof Corruption Act


Case Note: Environment � The court in its earlier orders regarding pollution of atmosphere in the vicinity of Taj Mahal had appointeda committee to report the progress of the action being taken by Agra Mission Management Board � C.B.I. enquiry into the



a committee to report the progress of the action being taken by Agra Mission Management Board � C.B.I. enquiry into thematter of development of heritage corridor by NPCC. � C.B.I. was directed to interrogate the persons involved and toverify their accounts as it was alleged that the concerned officials and the Chief Minister had released Rs. 17 croreswithout proper sanction � A detailed report was submitted to Supreme Court on this issue � Direction given to the CentralGovt. as well as to the State Govt. to hold departmental enquiry against the concerned Secretaries as well as theManaging Director of N.P.C.C. who had undertaken the project � Further directions given to C.B.I. to lodge F.I.R. andmake further investigations in accordance with law

ORDER


















physical commencement of work of Taj Heritage Corridor Project at Agra.




















16. Contrary to the provisions existing in the State Government which require that in case of every non-recurring expenditure of Rs.



5 crores and above, approval of the Expenditure Finance Committee (EFC) of the State Government is required, no such approvalwas either sought or obtained before sanctioning the amount of Rs. 17 crores (Ref. Para 3.1.E.11, page 67).



19. Shri Siddiqui and Dr. V.K. Gupta, the present Secretary, Environment, U.P. pressurized Shri Rajendra, Prasad, Under Secretary,

Environment Department, U.P. who also tampered with the file and made interpolations to cover the fact that the Minister hadsanctioned Rs. 20 crores. (Ref. Para 3.1.E.37, page 86).


























Control of Pollution) Act, 1974 etc.









Case Note:

Environment � The court in its earlier orders regarding pollution of atmosphere in the vicinity of Taj Mahal had appointeda committee to report the progress of the action being taken by Agra Mission Management Board � C.B.I. enquiry into thematter of development of heritage corridor by NPCC. � C.B.I. was directed to interrogate the persons involved and toverify their accounts as it was alleged that the concerned officials and the Chief Minister had released Rs. 17 croreswithout proper sanction � A detailed report was submitted to Supreme Court on this issue � Direction given to the CentralGovt. as well as to the State Govt. to hold departmental enquiry against the concerned Secretaries as well as theManaging Director of N.P.C.C. who had undertaken the project � Further directions given to C.B.I. to lodge F.I.R. andmake further investigations in accordance with law

ORDER

1. On the basis of the decision rendered by this Court on 31.12.1996 in Writ Petition (C) No. 13381 of 1984 titled M.C. Mehta (TajTrapezium Matter) v. Union of India and Ors. [(1997) 2 SCC 353], various I.As. were filed before this Court either for removal ofthe industries which are polluting the atmosphere in the vicinity of Taj Mahal or for removal of the encroachment becauseappropriate steps were not taken by the concerned authorities. For this purpose, this Court had appointed a Monitoring Committeeto report to this Court for the action being taken by the Agra Mission Management Board and other authorities. On 25.3.2003 onbehalf of the Monitoring Committee a report was submitted before this Court wherein it was prayed that respondents including theState of U.P. be directed to immediately stop the diversion of the river Yamuna and any further action on the bed of the river inproximity of the International Heritage Monuments till the Union Ministry clears such projects upon an environment impactassessment report. On the said application this Court issued notice on 27.3.2003. At that time, learned counsel for the MonitoringCommittee as well as Mr. M.C. Mehta insisted that authorities are proceeding with the construction without appropriate clearance.Still, however, we thought that as the State Government and the Central Government are involved in the matter, they wouldproceed in accordance with law. Therefore, stay order as prayed for was not granted. Subsequently, on 8.4.2003 along with other

matters this I.A. was also considered. On 9.4.2003 on the request of the learned counsel for the Union of India for studying thedetailed project report and for filing necessary affidavit, matter was adjourned for three weeks. At the relevant time counsel for theUnion of India did not know whether officers of the U.P. Government were proceeding with construction without clearance from theCentral Government.




























13. Contrary to the provisions existing in the State Government which requires that in case of every non-recurring expenditure of















M.C. Mehta Vs. Union of India (UOI) and Ors. On behalf of Monitoring Committee:Decided On: 18.09.2003






ORDER







9. The entire work of the project was left at the mercy of NPCC and its subcontractor M/s. Ishvakoo (India) Pvt. Limited and noGovernment Department or authority or agency was made responsible to supervise the ongoing work, to check the material and

















20. Shri K.C. Mishra, Secretary, Environment and Forest Government of India tampered with the file and made interpolations inGovernment records in order to cover up his omissions of not approving the proposals of his Joint Secretary and Special Secretaryfor writing to the State Government for a report and to ask them to carry out work only after necessary approvals and clearances.






(Ref. Para 3.1.K.1, page 112-113)."























The Tata Housing Development Co. Ltd. and Anr. Vs.The Goa Foundation and Ors. Decided On: 17.09.2003

Civil Appeal Nos. 6336, 6337 and 6338 of 1998

Hon'ble Judges: Y.K. Sabharwal and B.N. Agrawal, JJ.

Catch Words: Agricultural Land, Civil Appeal, Notice Under, Public Interest, Public Interest Litigation, Relevant Consideration, Town Planning

Acts/Rules/Orders: Goa Daman and Diu Town and Country Planning Act, 1974 - Sections 9, 15, 33, 35, 37 and 44; Goa Land Revenue Code - Section32(1); Goa Daman and Diu Preservation of Trees Act, 1984

Cases Referred: T.N. Godavarman Thirumulkpad v. Union of India and Ors., (1997) 2 SCC 267

Case Note: Environment � Civil � Goa, Daman and Diu Town and Country Planning Act � Section 9, 15, 33, 35, 37, 44 � Forest -



Appellant�s plot does not satisfy the criteria for being a forest land as laid down by the interim report � The interimreport categorically rejected satellite imagery and proposheets for identifying a forest � In the third interim report, theappellant�s plot has been shown as a forest � The new criterias cannot be accepted as they were rejected in the earlierreport � Appeal allowed

JUDGMENT

1. These appeals by special leave, are directed against the judgment rendered by Goa Bench of Bombay High Court in a writapplication, which was filed by respondent Nos. 1 and 2 (hereinafter referred to as 'the contesting respondents') by way of publicinterest litigation, whereby the same has been allowed, permissions granted to the appellants for change of land use, constructionand felling of trees in relation to Survey No. 69/4 measuring 11275 sq. mtrs. situate in Village Penha De Franca concerning theproject undertaken by appellant No. 1 over the said land quashed, and the appellants were directed to remove all developmentworks done thereon.

2. Survey No. 69/4 measuring 13593 sq. mtrs., by virtue of deed of partition amongst the co-owners of the property, came to theshare of Manohar Lal Bhandiye (respondent No. 10) and his wife Shantabai Bhandiye in the month of December, 1965 wherein thisproperty situate in Village Penha De Franca was specifically described as 'Palmar De Sam Tamas De Malim' which means 'CoconutPlantation'. In Goa Gazetteer of the year 1980 it was specifically enumerated that out of the trees standing over the aforesaid plot,only 6 were of 'forestry species'. Out of the aforesaid land, an area of 1050 sq. mtrs. was sold to Gurudwara Committee in the year1980 which constructed a three-storeyed Gurudwara thereon in the year 1986. In the same year a proposed Regional Plan wasprepared by the Chief Town Planner under Section 9 of the Goa, Daman & Diu Town and Country Planning Act, 1974 (hereinafterreferred to as 'the Town Planning Act') showing the entire area in which the aforesaid plot was situated as an 'orchard' and notgovernment forest/natural cover and the same was first published in the local newspapers and suggestions and objections invitedfrom members of the public. As no objection from any member of the public, including the contesting respondents, was received, theproposed plan was approved and published in the local newspapers as required under Section 15 of the Town Planning Act.Thereafter, in the year 1990 a proposed Outline Development Plan was prepared by the Chief Town Planner under Section 33 of theTown Planning Act wherein character of the land in question was shown as A1 [Agricultural and Orchard [Natural Reserve) Zone]and A2 (Agricultural and Natural Reserve Zone). The proposed Outline Development Plan was published in the local newspapers andsuggestions and objections invited from members of the public as required under Section 35 of the Town Planning Act, but as noobjections were received from any member of the public, much less the contesting respondents, to the zoning of the said plot asagriculture, it was duly approved and published in the local newspapers. On 27.9.1991 the Government of Goa in the Department ofForest issued guidelines for identifying forest within the State. In the year 1992, erstwhile owners of the plot in question applied tothe Town & Country Planning Board to accord permission for making changes in the status of the land in question from A1 & A2 to 52(Settlement Zone) under Section 44 of the Town Planning Act which permission was granted by the Chief Town Planner as in spiteof the issuance of public notice under Section 35 of the Town Planning Act, none objected to the conversion of land use fromagriculture to settlement and the same was published in the local newspapers as required under Section 37 of the Town PlanningAct pursuant to which the concerned Deputy Collector granted conversion sanad as required under Section 32(1) of the Goa LandRevenue Code converting the same from agricultural to residential/commercial.

3. On 4.2.1994 there was an agreement for sale and development of the plot in question between M/s. Sterling Landmarks formed bythe aforesaid owners and Shri Costa and Shri D'Souza and thereafter in the year 1995 a partnership firm was constituted by ShriCosta and Shri D'Souza in the name of M/s. Key Holdings (Appellant No. 2). On 29.12.1995 an agreement was entered into betweenappellant No. 2 and The Tata Housing Development Co. Ltd. (appellant No. 1) for development of land measuring 11275 sq. mtrs. ofthe said Survey No. 69/4 whereafter on application being filed by the appellants, for according sanction to their building plan, theTown & Country Planning Department, after giving no-objection certificate to the Plan, forwarded the same to the concerned GramPanchayat which granted licence for construction on 27.3.1996. In the meantime, appellant No. 2 purchased the aforesaid plotmeasuring 11275 sq. mtrs. (hereinafter referred to as "appellants' plot') from its owners on 13.2.1996. Subsequently, the plan of theProject was revised twice and no objection certificate was granted by the Town & Country Planning Department whereafter theconcerned Panchayat granted construction licence for the revised plan which was valid for a period of 3 years on a condition thatnatural landscape formed by trees as seen from river Mandovi was not to be disturbed. Thereafter, appellant No. 2 applied to theTree Officer for according permission to fell 51 trees standing on the appellants' plot as required under the Goa. Daman and DiuPreservation of Trees Act, 1984. Upon the said application, the Range Forest Officer, after making thorough inspection, submittedhis report disclosing therein that he found 51 trees thereon all of which were immature and soil was laterite which cannot supportexistence of a forest and recommended for according permission, but the same was rejected by the Tree Officer on the sole groundthat the appellants' plot was just opposite the State Secretariat in the vicinity of which there was no building, but later on theConservator of Forest, Goa, who was the appellate authority, granted permission to fell 32 trees out of 51 standing on theappellants' plot, subject to the condition that the appellants were to plant 89 trees in their place while, as a matter of fact, theappellants planted approximately 720 trees on and around their plot. In December, 1996, appellant No. 1 started construction anddevelopmental activity on the said plot.

4. Thereafter, it appears, this Court vide order of 12th December, 1996 in a public interest litigation, in the case of T.N. GodavarmanThirumulkpad v. Union of India and Ors., (1997) 2 SCC 267, directed each and every State Government to constitute within onemonth an Expert Committee to :-

(i) identify areas which are "forests", irrespective of whether they are so notified, recognised or classified under any law, andirrespective of the ownership of the land of such forest;

(ii) identify areas which were earlier forests but stand degraded, denuded or cleared; and

(iii) identify areas covered by plantation trees belonging to the Government and those belonging to private persons.

Pursuant to the said order the Government of Goa constituted a Committee on 24.1.1997 headed by Shri Sadanand Sawant,members of which were Conservator of Forest and a Scientist besides three Deputy Conservators of Forests. At first the Committee,which was known as Sawant Committee, submitted its interim Report in relation to government forest which was called 'First InterimReport'. Thereafter, Sawant Committee, after laying down the criteria, proceeded to identify private forests by making physicalinspection of the areas and visited 28 cases (villages) out of 109 placed before it. One of the 28 villages was Penha De Franca inwhich the appellants' plot is situate. The Committee identified certain survey numbers of the said village as forest, but surveynumber of the appellants' plot was not enumerated therein. It also identified degraded, denuded or cleared forest in which also theappellants' plot did not figure. After making verification, the Committee submitted its Report dated 4.7.1997 which is called 'SecondInterim Report' wherein it has been enumerated that the Committee, after taking into consideration all relevant factors, including theguidelines issued by the Government of Goa, laid down the following three criteria for the purpose of identifying a forest:-



1. 75% of the composition of the trees in the forest should be forestry species.

2. The area should be continuous to government forest and if in isolation the minimum area should be 5 hectares.

3. The canopy density should not be less than 0.4, i.e. 40%.

In the said Report the, Committee categorically rejected satellite imagery and toposheets as a correct indicia for identifying foreststating therein that satellite imagery would indicate nature green cover which would include most of the plantations/seasonal crops,such as cashew, coconut, arecanut, etc., which, according to the Committee, could not be considered for the purpose of classifying

a forest. It also rejected the Nature Green Cover Maps as they would include all types of vegetation and of all density and class,including cashew crop which could not be fitted into the criteria taken for identification of forests. As appellants' plot did not fulfillany of the three criteria laid down by the Committee for identifying a forest, the same did not figure in the list of forest landsmentioned in the report.

5. Thereafter a writ application was filed by the contesting respondents before Goa Bench of the Bombay High Court challenging thegrant of various permissions in favour of the appellants for change of user of the appellants' plot and carrying out developmentalactivity thereon. The said writ application was contested by appellant No. 1 on grounds, inter alia, that the appellants' plot was nota forest land. In the said writ application, Conservator of Forest, who himself was a member of Sawant Committee and participatedin its deliberations before submitting the Second Interim Report, filed an affidavit stating therein that the appellants' plot was not aforest and accordingly had not been shown as such by the Committee in its Second Interim Report. The Chief Town Planner alsofiled an affidavit, contesting the prayer made in the writ application stating therein that the area around and adjoining theappellants' plot was developed inasmuch as there were no less than 12 such developed properties. On 11.3,1998, in the aforesaidwrit application, the High Court issued Rule, but did not grant any interim relief. By the same order the Court, however, directedSawant Committee to identify and submit report on the question whether appellants' plot was a forest or not as in its opinion it wasnot clear whether Sawant Committee, before submitting the Second Interim Report, visited the same.

6. Pursuant to the aforesaid direction of the High Court, Sawant Committee made physical inspection of the appellants' plot andsubmitted its report dated 22.4.1996, which may be called Third Interim Report', in which it reported that the appellants' plot was aforest. The criteria adopted by the Committee were (i) Satellite Imagery and Toposheets of 1960; (ii) Slope Analysis Maps preparedin 1988; and (iii) Enumeration of the plants in a 50 metre wide belt adjoining the boundaries of the said plot only on three sides, i.e.,the North, East and West, but excluding the South where there was a huge public structure admeasuring 1000 sq. metres.

7. In the writ application, the appellants relied upon the following reports to show that their plot was not a forest:-

(i) Report dated 24.9.1997 prepared by AIC Watson in relation to the appellants' plot which was based on a field visit over a periodof two weeks and it was stated therein that the soil was laterite, organically poor with low nitrogen" and phosphorous contentswhich concluded that the said plot was not a forest.

(ii). Report dated 19.5.1998 submitted by Geo Profiles which, after drawing samples from the appellants' plot and detailedinvestigation and testing, conciuded that the soil was laterite poor in humus content and the same cannot sustain large trees.

(iii). Report dated 3.6.1998 submitted by Dr. Ashok Joshi, who was an Environmental Scientist, which Report was prepared by himafter four days' field visit of appellants' plot based on a soil test report of the Directorate of Agriculture, Government of Goa. Thesaid Report concluded that the canopy density of the plot was only 5%, i.e., there was only one tree per 200 sq. mtrs., only 6 ofthe 51 trees were of forestry species and that the soil comprised of laterite boulders, low in humus content which soil cannotsustain a forest.

(iv). Report dated 4.6.1998 submitted by National Remote Sensing Agency which disclosed that the appellants' plot was surroundedby agricultural land and did not fall within a reserve forest.

8. At the time of arguments before the High Court, it was contended on behalf of the appellants that no reliance should be placedupon the Third interim Report of Sawant Committee as the same jettisoned the criteria laid down by it in the Second Interim Reportfor identifying a forest and adopted criteria which had either been rejected by it earlier or wholly arbitrary and erroneous.

9. The High Court, after hearing the parties, accepted the Third interim Report of Sawant Committee, refused to place reliance uponthe aforesaid reports filed on behalf of the appellants and allowed the writ application, as stated above. Hence Civil Appeal No. 6336of 1998 by the developer and the owner on grant of special leave to appeal. Civil Appeal Nos. 6337 and 6338 of 1998 have beenfiled by other persons who claim to have invested monies for buying residential accommodation in the development schemeundertaken by the developer, The Tata Housing Development Co. Ltd., in which also leave to appeal was granted.

10. Shri Ashok H. Desai, learned Senior Advocate appearing in support of the appeal filed by the developer and the owner, submittedthat the High Court was not justified in placing reliance upon the Third Interim Report of Sawant Committee according to which theappellants' plot was a forest as the said Report jettisoned the criteria adopted by it while submitting its Second Interim Report foridentifying a forest and instead adopted the criteria which had either been rejected by it earlier or were wholly arbitrary anderroneous. Dr. A.M. Singhvi, learned Senior Advocate appearing in support of the other two appeals, submitted that in any view ofthe matter the appellants of these appeals having invested huge sums of money for purchasing the flats, their interest should not bejeopardised. Ms. Indira Jaisingh, learned Senior Advocate appearing on behalf of the contesting respondents, on the other hand,submitted that the High Court was quite justified in accepting the Third Interim Report of Sawant Committee.

11. Thus question which falls for consideration of this Court is whether the High Court was justified in accepting the Third Interim

Report of Sawant Committee and allowing the writ application on the basis thereof. For deciding this question, it would be necessaryto refer to the Second interim Report of Sawant Committee in which it has laid down three criteria for classifying any land as"forest". Relevant portions of the said Report run thus:

"After the formation of the committee, it was first decided to get the Forest cover through NRSA, Hyderabad but seeing the timeinvolved and nature of interpretation, it was decided to carry out the exercise through physical verification by the departmentalstaff only. Nature of interpretation means the satellite data gives the natural green cover which includes most of theplantation/seasonal crops such as cashew, coconut, arecanut etc. For the purpose of classifying "Forest" such growth can not beconsidered. The Committee has taken the stand that for considering any area as forest:-

i) 75% of its composition should be forestry species.



ii) The area should be in contiguous to Govt. Forest and if in isolation the minimum area should be 5 hectare.

iii) The canopy density should not be less than 0.4.

The above criteria which was in existence with Forest Department, Govt. of Goa has been approved by the Govt. of Goa."

"Based on the satellite imageries, toposheets, the areas outside the Govt. Forests have been marked on the map and the Forestofficials have done the physical verification of such areas applying the above criteria.

"The Committee has procured the maps of 1978 from the Town and Country Planning Department which has been prepared based onthe aerial photographs of 1960 and toposheets of 1960. In these maps Natural Green Cover has been shown but again it doss noteither speak about the density or the species composition.......This Natural Green Cover (Pvt.) outside the Govt. Forests being veryhigh compared to the figure likely to be arrived at by the committee finally under the classification of Private Forests, it is obvious asthese private green cover includes all types of vegetation and of all density class including cashew crop which may not be fittedinto the criteria taken for identification of private forests."

12. From a bars perusal of the aforesaid passages from the Second Interim Report of Sawant Committee it would appear that theCommittee had categorically laid down three criteria for identifying a land to be forest and it had rejected Satellite Imagery andToposheets of 1960 and Nature Green Cover maps as the relevant criterions for classifying any land to be a forest. In the ThirdInterim Report of Sawant Committee in which it was reported that the appellants' plot was a forest, curiously enough, the threecriteria referred to above, which were earlier followed by the Committee for holding a land to be a forest land, ware abandoned.Instead, the Third Interim Report laid down principally the following criteria:-

(i) Satellite Imagery and Toposheets of 1960;

(ii) Report of the Sub-Committee for maintaining Nature Reserve green belt around cities particularly with reference to the mapprepared for nature reserve on hill slopes;

(iii) Enumeration of the plants in a 50 metre wide belt adjoining the boundaries of the appellant's plot on three sides, i.e., the North,East and West, but excluding the South side which had a huge public structure admeasuring 1000 sq. metres.

13. From a bare perusal of the Third Interim Report, it would appear that the three criteria laid down in the Second Interim Report ofthe Sawant Committee have been given a complete go bye and in relation to the appellants' plot altogether different criteria havebeen adopted. The course adopted by the Committee in taking into consideration different criteria while examining individual case ofthe appellants' plot was wholly unwarranted, especially when the Committee in its Report has not assigned any reason for makingthe deviation.

14. The appellants' plot does not satisfy any of the three criteria laid down by the Committee in its Second Interim Report. Fromvarious reports referred to above, it would appear that out of 51 trees on the appellants' plot only 6 were of forestry species whichis only 12% of the total number of trees standing thereon and as per the criterion laid down by the Committee for holding a land tobe a forest at least 75% of the trees should be of forestry species. The second criterion that the land should be contiguous togovernment forest is also not fulfilled as the appellants' plot is not contiguous to government forest but in isolation and for anisolated plot to be classified as a forest the minimum area required is five hectares, which is also not fulfilled as, indisputably, area ofthe appellants' plot is 11275 sq. mtrs. which is just above one hectare. The third criterion that the canopy density should not beless than 0.4% i.e., 40% is also not met by the appellants' plot as here the same is only 5% which is far less than 40%, the minimumrequired for classifying a land to be forest.

15. In its Second Interim Report Sawant Committee categorically rejected satellite imagery and toposheets as one of the criterionsfor identifying a forest as the same would at best show natural green cover which, according to the Committee, would include

plantations, seasonal crops, etc. and the same cannot be a relevant consideration for classifying a forest, as such the Committee inits report relating to the appellants' plot was not justified in taking the same into consideration. Likewise, in its Second InterimReport, the Committee had rejected nature reserve green belt map as a relevant consideration for holding a land to be forest on theground that the same would show all types of vegetation including cashew crops etc., as such in the Third interim Report theCommittee was not justified in placing reliance upon the Report of the Sub-Committee for maintaining Nature Reserve around thecity. So far as the third criterion that weighed with the Committee is concerned, it may be stated that enumeration of the plants ina 50 metre belt adjoining the appellants' plot on three sides was irrelevant, especially when the Committee did not find that 75% ofthe plants, in the 50 meter wide belt adjoining the boundaries of the appellants' land, were of forestry species.

16. Further, Sawant Committee in the Report in question came to the conclusion that the soil of the appellants' plot was rich inhumus content only by looking at the same. It may be stated, as would appear from the various Reports referred to above, filed onbehalf of the appellants before the High Court, that composition of soil can only be determined after its sample is drawn and testedwhich, in the instant case, was tested in the Government approved laboratory before submission of the reports referred to aboveand the same cannot be ascertained by merely looking at the soil of the plot through naked eyes. Apart from this, SawantCommittee was not justified in classifying the appellants' plot to be a forest merely on the basis of presence of roots of trees on thewalls of the pits thereon ipso facto which cannot be a relevant consideration as it would not show that the roots were of trees offorestry species, especially in view of the fact that out of 51 trees only six trees were found to be of forestry species and if theroots of those six were found on the walls of the foundation pits, the same could not have been taken into consideration foridentifying the appellants' plot to be forest as out of 51 trees only 12% of trees wore found to be of forestry species which is farless than 75%, which was one of the criteria laid down by the Committee in its Second interim Report for classifying a forest.

17. At this juncture, it may be relevant to point out that Sawant Committee submitted its final Report dated 8.12.1999 wherein onthe basis of the findings in its Third Interim Report alone the appellants' plot has been shown as a forest. In the final Report, SawantCommittee has reiterated all the three criteria referred to above for treating any land to be a forest land.

18. This being the position, we are of the view that the Third Interim Report of Sawant Committee, having been based upon thecriteria which were rejected by it in its previous report, cannot be accepted as there was no ground for making a departuretherefrom while submitting the Report in relation to the appellants' plot. The Committee was not justified in holding the appellants'plot to be a forest land on the basis of altogether different criteria for which there is no reasonable nexus, especially when none ofthe three criteria laid down in the Second Interim Report has been adhered to. Thus the High Court was not justified in acceptingthe Third Interim Report of Sawant Committee and concluding on the basis thereof that the appellants' plot was a forest.



19. In the result. Civil Appeal No. 6336 of 1998 is allowed, the impugned judgment rendered by the High Court is set aside and thewrit application is dismissed. In view of the aforesaid decision, Civil Appeal Nos. 6337 and 6338 of 1998 are dismissed, the samehaving been rendered infructuous. In the facts and circumstances of the case, parties are directed to bear their own costs.

Orissa State (Prevention and Control of Pollution) Board Vs. Orient Paper Mills and Anr. Decided On: 10.03.2003

Hon'ble Judges: Brijesh Kumar and Ar. Lakshmanan, JJ.

This is an appeal preferred by the Orissa State (Prevention and Control of Pollution) Board (for short, "Board"), against the judgmentof the Orissa High Court passed in Criminal Revision, upholding the order passed by the Addl. Sessions Judge Rourkela, quashing thecharges framed against the respondent under Section 37(1) of the Air (Prevention and Control of Pollution) Act, 1981 (for short "theAct").

According to the prosecution, the respondent Orient Paper Mills Brajraj Nagar, Dist., Sambalpur, engaged in manufacturing of Paperand Paper Board Caustic Soda and Chlorine etc. is state in an area which falls within the air Pollution Control Area, as per GazetteerNotifications. The consent was granted to the respondent by the Board, on 7.3.88 which was valid up to 31.3.89, and it wasrenewed up to 31.3.91. It was found that the respondent was emitting the air pollutants in excess of tolerance limit prescribed inrespect of SPM (suspended particulate matter). According to the Board the respondent failed to comply with the consent conditionthereby committed an offence punishable under Section 37(1) of Air Prevention and Control Pollution) Act, 1981. Hence a compliantwas filed in the court of SDJM Rourkela by the Board against the Respondents.

The SDJM on 7.10.95 framed charges against the respondents under Section 37(1) of the Act for having not followed the provisionscontained in Sections 21 and 22 of the Act. The respondent, feeling aggrieved, filed a Criminal Revision before the Sessions Court forsetting aside the order framing the charge, on the ground that there was no evidence to show that the area in which the industry-respondent is located is in area declared in accordance with law viz. Section 19 of the Act as Air Pollution Control Area. Therelevant part of Section 19 reads as follows:

"19. Power to declare air pollution control areas - (1) The State Government may, after consultation with the State Board, bynotification in the Official Gazette, declare in such manner as may be prescribed any area or areas within the State as air pollutioncontrol area or areas for the purposes of this Act. The respondent took the plea that in absence of rules prescribing the manner for declaration of an area as Air Pollution Control Area,the State Government illegally notified the area as such.

Sessions Judge set aside the order passed by the Magistrate and allowed the revision, taking the view that the State Governmentcould notify an area as Air Pollution Control Area only in the manner prescribed under the Rules. In absence of rules it could not bedone. Therefore there was no prima facie case against the Respondent for violation of Section 21 and 22 of the Act. The orderpassed by the Addl. Sessions Judge has been upheld by the High Court with an observation that there was no illegality or irregularityin the order.

As such the present appeal was brought before the S.C. The S.C. observed that under Section 19 the State Government isempowered to declare any area within the State as an Air Pollution Control Area by notification in the official gazette. It mayhowever be after consultation with the Board and in the manner as may be prescribed. According to the respondent the Stategovernment has not prescribed any manner in which the Air Pollution Control Area is to be declared as such by Notification in theOfficial Gazette. The plea of the appellant however is that Notifications have been issued by the State Government in due exerciseof its powers vested under Section 19 of the Act and published in the Official Gazette from time to time, which do comply withSection 19 of the Act.

The S.C. hear observed that, “Section 19 says,….such manner as may be prescribed” and “not in the manner prescribed” or “…in theprescribed manner”. Thus in case manner is not prescribed under the Rules, there is no obligation or requirement to follow any,except whatever the provision itself provides viz. Section 19 in the instant case which is also complete in itself even without anymanner being prescribed. It would thus not be correct to say that simply because the rules have not been framed prescribing themanner it would render the Act inoperative. The area was notified as air pollution control area by the State Government asauthorized and provided by virtue of the powers conferred under Section 19 of the Act. The declaration is provided to be made bymeans of a notification published in the official gazette. No other manner is prescribed nor exists. The relevant notifications issuedby the government cannot be said to be contrary to any rules in existence as framed by the Government. The respondent hadknowledge of the notification and had also applied for consent of the Board which was granted to the respondent. The wholeworking and functioning of the Act which is meant for controlling the air pollution cannot be withheld and rendered nugatory only forthe reason of absence of the rules prescribing the manner declaring an air pollution control area which otherwise is provided to benotified by publication in an official gazette which has been done in this case.

Accordingly the court allowed the appeal and set aside the order passed by the learned Additional Session Judge in revision and theorder of the High Court affirming the same

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

Samir Mathur Vs. State of A.P. and Ors: Decided On: 03.02.2003Hon'ble Judges: V.V.S. Rao, J.An interesting question as to the power of the Chief Wild Life Warden to seize wild life trophies declared by a person arises forconsideration in this writ petition.

The petitioner herein filed a declaration as required under Section 40 of the Wild Life (Protection) Act, 1972 (for short, the Act), andRule 34 of Wild Life (Protection) (Andhra Pradesh) Rules, 1974 (for short, the Rules) stating that his father late R.R. Mathur, IASacquired tiger skin in early 1960's and same came into possession of the petitioner. There after respondents 2 and 3 came topetitioner's house on 4.9.1993 and confiscated the tiger skin in a box. Therefore, the writ petition is filed contending that the searchand seizure is illegal since the procedure required for confiscating required under Section 40(1) of the Act and Rule 35 of the Ruleshas not been complied with.



has not been complied with.In the counter-affidavit filed by the Deputy Conservator of Forests, Wild Life Investigation, it was contended that there was longdelay on the part of the petitioner in filing declaration under the Act and the Rules and the authorities entertained a doubt as togenuineness of the tiger's skin and therefore the same was seized.

The court after looking into the Act and Rules observed that, ‘After declaration the authorized officer has to give notice to thedeclarant as to the date and time on which the officer shall enter upon the premises. After giving such notice, the Warden orauthorised officer has to conduct enquiry and come to a conclusion as to whether such trophy is kept illegal. The court in thepresent case however found that no such notice has been given to the petitioner in the present case. Therefore, the seizure is

illegal and cannot be sustained.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

Vijay Singh Punia Vs. Raj. State Board for the Prevention and Control of Water Pollution and Ors. Decided On: 07.03.2003

Hon'ble Judges: Anil Dev Singh, C.J. and M.R. Calla, J.

This writ petition filled by way of a Public Interest Litigation seeking writ, order or direction against Rajasthan Pollution Control Boardto take immediate steps against unauthorized factories and restrain them from discharging toxic wastes and effluents into the canaland land and secondly to direct the concerned authority to check the raising of unauthorized construction of factories withoutcompliance of the statutory provisions of Section 25 of the Act of 1975 and impose penalties on the factories found violatingstatutory provisions.The petitioner is aggrieved by the inaction of the respondents, since they allegedly failed to implement the provisions of the Water(Prevention and Control of Pollution) Act, 1974 (for short, "the Act") and to check the construction and growth of the unauthorizedfactories, responsible for discharging toxic wastes and effluents into the canal and on land.

It is pointed out in the petition that several unauthorised industries/factories carrying on business of dyeing and printing of clothhave been set up. According to the petitioner, the effluents produced by these industries are reaching the dam through canal andare causing serious health hazards and irreparable injury to the environment, man and animals etc.

Pursuant to the notice issued in the writ petition, the Rajasthan State Board for the Prevention and Control of Pollution in its replystated to the effect that it is tackling enormous task of controlling discharge from all-over Rajasthan. It is also asserted that due tountiring efforts of the Board a Common Effluent Treatment Plant (for short, "CETP") was constructed, in Pali which was to take careof treatment of ten million gallons of effluent from various textile units of Pali which according to Board was the most problematicarea. In so far as the problem of discharge of effluent in the canal, by the printing units, is concerned, the Board alludes to the factthat a survey was conducted by the Board which revealed that around 240 dyeing and printing units are working in Sanganer andthat none of the industries in Sanganer, has installed an effluent treatment plant.

After reply of the respondent the Court, on 20.9.95, passed an order, directing respondents to issue suitable orders to theindustries, to obtain permission from the Pollution Control Board, within 45 days from the passing of the said order and in case, thefactories set up failed to produce the required permission before the respondents, they should restrain the factories from operating.

After the aforesaid direction, the Sanganer Kapda Rangai & Chhapai Association (for short, "the Association"), felt threatened andfiled its reply where it submitted that the entire dyeing and printing units are home industries, which were established hundreds ofyears back. These industries are providing jobs to lakhs of people, who were not having any source of income, except from thesesmall units. In their reply they denied the fact that the units were discharging any effluent from its premises into any stream, sewer,well or on land.

However, In compliance with the order of the Court the respondent filed an affidavit stating the action taken by it in pursuantthereof. Where by it stated that it has identified 86 units operating without the consent of the Pollution Control Board to whom theyhave issued notices under Section 25 of the Act directing to forthwith apply for consent applications. On receiving the applications,the board rejected the application of 42 units situated in the polluted area on the ground that none of the units had pollution controlplant, for treating the effluents. On action being taken by the Pollution Control Board, "the Association" filed an affidavit claiming that a meeting was held betweenthe representatives of the Pollution Control Board and members of the Association, with regard to the problem of pollution whereby itwas accepted by the Pollution Control Board that due to inadequacies of spaces and cost-factor in setting up individual effluenttreatment plants, the only workable and realistic solution was setting up by Rajasthan State Industrial Development and InvestmentCorporation (RIICO), or by other State agencies, of a central effluent treatment plant (CETP). Pursuant to the meeting arepresentation was made by the association to the Minister for Industries and Deputy Chief Minister, Rajasthan wherein it wasrequested that developmental work be undertaken in industrial area for ensuring all-round improved environment. The demand forCETP was also reiterated in the same. Afterwards a meeting was held amongst the members of the Association, Minister forIndustries, Deputy Chief Minister and the Chairman of the Pollution Control Board. The Chairman, Pollution Control Board, suggestedthat a survey be conducted, by NEERI, to study the level of pollution in the area and that an environmental policy be alsoformulated, for future. Accordingly a survey was conducted by NEERI. Depending on this survey a report was prepared in which itwas suggested a Pukka drain be built and a CETP be constructed by the State Government. Besides, it was suggested that the unitsbe allotted plots in a separate zone, after the same is developed by the RIICO. The report also made recommendations to the effectthat concrete steps be taken in developing dyeing and printing industry, which had contributed substantially to the economy ofJaipur.

In the aforesaid affidavit, it is also pointed out that RIICO had announced setting up of an exclusive dyeing and printing sector, inits industrial estate in Shikarpur (Sanganer) and setting up of a CETP in the same industrial estate. The members of the Associationwere willing to shift to the new industrial area being set up by the RIICO and make payment at par with the dyers and printers ofPali, for setting up the CETP. It is also stated in the affidavit that it is the responsibility of RIICO to provide combined effluenttreatment in its industrial areas but that nothing worthwhile has happened.

Having set out the stands, taken by the appellant, Pollution Control Board; and the Association, the court considered that ‘there isno doubt left in our minds that effluents are being discharged by the dyeing and printing units, which are polluting the watersources, used for agriculture and drinking purposes. Neither the Association, nor the RIICO has taken any concrete steps, to preventpollution. The action taken by the Board pursuant to the court order has not improved the situation, at all. It is also true that theAssociation had been representing for development of an industrial area, for allotment of land and for setting up of a commoneffluent treatment plant, but, nothing worthwhile has happened. That the pollution, caused by the aforesaid industrial units, is



effluent treatment plant, but, nothing worthwhile has happened. That the pollution, caused by the aforesaid industrial units, iscertainly affecting the quality of drinking water and the vegetables, produced by the farmers, using the water of the canal forirrigation purposes. The vegetables so produced are consumed by human beings resulting into a number of health hazards As suchwhile the industry is contributing to the economy of the State, at the same time, it is destroying the environment.

The court also made an observation that it is the fundamental right of the citizens to have pollution-free environment. Though,Article 19(1)(g) of the Constitution of India, ensures right of freedom to trade and commerce, at the same time, this freedom is notan absolute one and is subject to reasonable restrictions. Any trade, or business, which is destructive of the health of the citizens,cannot be allowed to be carried on, under the banner of fundamental right.

The Court pointed out six wholesome principles that can be culled out from Articles 21; 48-A; and 51-A (g) of the Constitution andvarious judicial pronouncements :- (1) All human beings have the fundamental right to unpolluted environment, pollution-free water and air. (2) That State is obligated to preserve and protect the environment. (3) It is mandatory for the State and its agencies, to conceive, anticipate, prevent and attack the causes of environmentaldegradations. (4) The industry cannot be permitted to continue, as a matter of right, in case it creates pollution. (5) The polluter must meet the cost of repairing environment and ecology and pay reparation to those, who have suffered becaused of the pollution, caused by him. (6) Considerations of economy cannot prevail over concerns for environment and ecology. Keeping in view aforesaid legal position the court directed as below :- (1) RIICO shall develop an industrial area for dyeing and printing industry, within a period of eight months. Location of the area shallbe identified and plans finalized within two months. (2) The owners and proprietors of the present industrial outfits shall be given plots in the industrial area, for which, they shall paythe price, as determined by RIICO, at no-profit no-loss basis. (3) Each of the printing and/or dyeing units shall pay the pollution-fine as prescribed by the court. (4) Each of the units, within one month, shall deposit minimum pollution-fine of Rs. 20,000/- with RIICO. The balance amount,depending upon the turnover, shall be paid to RIICO, within two months. In case, pollution fine is not paid within time, the defaultingunit shall be sealed by the respondents.

IN THE SUPREME COURT OF INDIAM.C. Mehta Vs. Union of India (UOI) and Ors. Decided on 02.04.2003ANDIn Re: Ashok Chhabra & Co. by its Sole Proprietor Ashok Chhabra:Hon'ble Judges: Y.K. Sabharwal and H.K. Sema, JJ.A contempt petition against the respondent Ashok Kumar Chhabra arised in pursuant to the show cause notice of contempt issuedby S.C. for willful violation of various orders passed by this Court.

The respondent was running hot mix plant industry located at village Rangpuri, New Delhi.The hot mix plant was the subject matterof consideration by an Expert Committee of Central Pollution Control Boad (CPCB) to determine the pollution and hazardous aspectsof this industry. On 13th March, 1996 the Court directed the CPCB to issue notice to the hot mix plants located in Delhi as to whythey be not relocated.

The Board issued notices to the Hot Mix Plants and after considering the replies/objections filed by them, the Expert Committee ofthe Board arrived at the following conclusion:

"The process emissions from Hot Mix Plants contain particulate matter most of which are proven carcinogens. Therefore, the ExpertCommittee of CPCB has categorized Hot Mix Plants as hazardous industry ('Ha' category). As per Master Plan 2001, allhazardous/noxious industries should be shifted out of the U.T. Delhi."

Basing on the aforesaid report, S.C directed the 43 hot mix plants to stop functioning and operating in the city of Delhi and torelocate/shift themselves to any other industrial estate.

However, despite the order of closing down, and allotment of the alternative site, respondent continued operating his unit at Delhiculminating in the order dated 16th May, 1997 passed by the Chairman, Delhi Pollution Control Committee (DPCC), under Section31(A) of Air (Prevention and Control of Pollution) Act, 1981 saying that the respondent shall stop functioning and operating the hotmix plant in the city of Delhi with immediate effect and sealed the plant. The respondent challenged the order before the AppellateAuthority, Ministry of Environment and Forests under Section 31 of the Air Act. Dismissing the same the Appellate Authorityobserved that “the Appellant has committed a violation of Section 21 of the Air (Prevention & Control of Pollution) Act, 1981 as it ismandatory to obtain consent under the Air Act. The Appellant had failed to comply with the directions of the DPCC”. As such itdirected the unit to stop all its operation in the National Capital Region of Delhi.

Aggrieved by the said order, the respondent preferred a Writ Petition before the High Court of Delhi. which passed an interim orderstaying the sealing order while making it clear that this in no way would affect the order of closure. Meanwhile, during the pendencyof the writ in H.C. the respondent continued to operate his plant. When the same was brought to the notice of S.C., it passed anorder directing that the said Hot Plant must be closed down, if operating and appropriate steps must be taken by the Delhi PollutionControl Board with necessary help from the Delhi Police.

However ,in spite of various orders passed by this Court and orders passed by the competent authority, the respondent continuedoperating his unit.

As such S.C. issued contempt notice dated 25th November, 1999 to the respondent. The Respondent in his reply took thecontention that he is operating the plant in pursuant to the orders of the Hon’ble High Court passed from time to time .On referringto the various orders passed by the H.C. the same was rejected by the S.C on referring the order passed by H.C. and came to theconclusion that, The respondent-contemner, in his own admission , has continued the functioning of the plant which is treated to beas hazardous and noxious industry in total disregard and consistent defiance of the orders passed by this Court which impunity andheld that Ashok Kumar Chhabra is guilty of contempt of court.

IN THE HIGH COURT OF GAUHATI



WP(C) PIL No. 34 of 2001

Decided On: 26.05.2003

Appellants: Pu. C. ThangmuraVs.

Respondent: Pu. F. Vanlalthlana

Hon'ble Judges: P.P. Naolekar, C.J. and I.A. Ansari, J.

Counsels: For Appellant/Petitioner/Plaintiff: H. Roy, N. Sinha, U. Goswami and D. Bhattacharjee, Advs.

For Respondents/Defendant: K.N. Choudhury, D.K. Das, M.B. Sarma and A. Baruah, Advs.


Catch Words: Act, Allegation, Animal, Appropriate, Assembly, Assured, Authority, Certified Copy, Commission, Commission of Offence, Conduct,Copy, Date, Date Of, Demand, Direction, Duty, Enquiry, Enquiry Officer, Government, Legislative Assembly, Letter, Mark, Month,Newspaper, Offence, Office, Officer, Order, Period, Permission, Petition, Prima Facie, Principal, Public, Receipt, Report, Secretary,Servant, State, State Government, Statement, Vehicle, Wild Life

Acts/Rules/Orders: Wild Life (Protection) Act; Wild Life (Protection) Rules

JUDGMENT

P.P. Naolekar, C.J.

1. This PIL has been filed making allegations as contained in paragraphs 5, 6 and 7, they are reproduced below -

"5. That the petitioner states that one Pu. Hranghleikapa of Samphai in the State of Mizoram donated a barking deer on 11.6.2000which he found in the forest at Samphai to Pu K Vanlaluana, Minister of State, Government of Mizoram for handing over the same tothe Government run Mini Zoo at Aizawl. Then the said Minister by his Government Gypsy vehicle No. MZ-01-2082 carried the deer toAizawl. While transporting the said wild animal, the said Sri K. Vanlaluava did not obtained any permission from the Chief Wild LifeWarden or any authorized Office of the State Government as contemplated under Section 48(A) of the Wild Life (Protection) Act,1972. Later on, it was found that the servants of the said K. Vanlaluava prepared the meat of the animal for the purpose of thedinner hosted by K. Vanlalauva in honour of the Hon'ble Chief Minister of the State.

6. That the aforesaid facts were reported in the local newspapers in Mizoram and on the demand of animal lovers of the State, theGovernment of Mizoram, through the Chief Secretary directed Sri S. S. Patnaik, the Principal Chief Conservator of Forests-cum-Secretary, Environment and Forests to conduct the enquiry into the matter either by himself or through the DFO (Wildlife), Aizawl.That the Divisional Forest Office (Wildlife), Aizawl made necessary enquiry into the matter and submitted his report before thePrincipal Chief Conservator of Forests on 4.7.2000. On the basis of the said report, the Principal Chief Conservator of Forests-cum-Secretary, Environment and Forests by his letter under memo No. UOPB/1/98/CON/PCCF, dated 7.7.2000 intimated the ChiefSecretary that the Barking Deer which was killed by the Minister of State falls under Schedule-3 of the Wild Life (Protection) Act,1972 and he has committed an offence under Section 39(3)(A) and Section 48(A) of the Wild Life (Protection) Act, 1972.

A copy of the report dated 7.7.2000 along with the statement of Pu. K. Vanlalauva made before the Enquiry Officer are annexedherewith and marked as Annexures-1 and 2 respectively.

7. That your petitioner states that after the receipt of the enquiry report, the government assured the Public as well as theLegislative Assembly that appropriate action will be initiated soon against Pu. K. Vanlalauva for his commission of offence under WildLife (Protection) Act, 1972. But surprisingly enough, in the very first week of August, 2001, the Chief Minister has directed the ChiefSecretary not to pursue the matter and not initiate any action under the Wild Life (Protection) Act against his aforesaid colleague.Being encouraged by such direction, the said colleague of Chief Minister and his other colleagues have started visiting differentforests and has responded to indiscriminate killings of rare wild animals such as Barking Deer, Wild Boar etc."

2. The report of the enquiry conducted by Sri S.S. Patnaik, the Chief Conservator of Forests-cum-Secretary, Environment andForests, Government of Mizoram, has also been filed along with the petition. From the allegations made in the petition and theenquiry report submitted thereof, it prima facie appears that some offence have been committed under the Wild Life (Protection) Actand the Rules framed thereunder and the Chief Secretary to the Government of Mizoram is duty bound to follow the law and cannotrefuse to perform his duties under the guidance and directions of any authority.

3. Under the facts and circumstances, we direct the Chief Secretary to the Government of Mizoram to take appropriate steps in thematter in accordance with law within a period of one month from the date of placement of a certified copy of this order before him.

4. The petition stands disposed of.

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

OWP No. 89/2001

Estate Officer, (Divisional Forest Officer) Jammu Forest Division and Ors. Vs. Mst. Jitto Devi Wd/O Late Sh. Rikhi Ram andAnr.Decided On: 06.02.2003

Hon'ble Judges: S.K. Gupta, J.

Acts/Rules/Orders:



Acts/Rules/Orders: Jammu and Kashmir Forest Act, 1987 - Section 48A; Jammu and Kashmir Special Tribunal Act, 1988

Jurisdiction of Tribunal to hear the appeal arising under Section 48-A of the Jammu and Kashmir Forest Act 1987.

The present writ petition filled before the H.C. of Jammu And Kashmir At Jammu against the decision of Jammu and Kashmir SpecialTribunal, Jammu.This case was called upon to decide which Authority has the jurisdiction to hear the appeal arising under Section48-A of the Jammu And Kashmir Forest Act, 1987? Is it the tribunal or the chief conservation of Forests?

An eviction order pertaining to the Forest Land located at village Birpur Tehsil samba was passed by the Divisional Forest Office,Jammu against Mst Jitto Devi. An appeal was preferred before the J&K Special Tribunal to impugn the correctness of the order of theEstate Officer. A plea based on SRO-777 of 1972 was raised before the Appellate Court (J&K Special Tribunal, Jammu) that it is onlythe Chief Conservator of Forests authorized to hear the appeal under Section 48-A of the forest Act and tribunal has no jurisdiction.The Appellate Court concluded that the appeal is maintainable before the Tribunal which became the subject matter of challenge inthis writ petition.

Counsel appearing for the petitioners, submitted that tribunal had only the power to hear the appeals, revisions and review petitionswhich were maintainable before the Government or a Minister prior to coming the J&K Special Tribunal Act 1988. His furthersubmission is that an appeal arising under Section 48-A of the Forest Act would neither lie before the Government nor the Ministerafter the issuance of notification SRO-777 of 1972. It was only the Chief Conservator of Forests authorized to hear the appeal underSection 48-A of the Forest Act and as such tribunal had no jurisdiction to entertain and hear appeal in such cases

The main plank of the petitioners' argument is that power to hear the appeals arising out of an order passed under Section 48-A ofthe Forest Act vested only with the Chief Conservator of Forests and not with the Government or a Minister, obviously based onSRO 777 of 1972 dated 01/11/1972. Prior to the enforcement of the J&K Special Tribunal Act 1988, such appeals were notmaintainable before the Tribunal. That tribunal has not interpreted the provisions of Section 3 of the J&K Special Tribunal Act 1988in its right perspective.

A plain reading of the Section 48-A (3) of the Forest Act� makes it abundantly clear that the appeal against the order of ForestOfficer would lie before the Government or to such an officer as may be authorized in this behalf, by an aggrieved person. However,with the issuance of SRO-777 dated 01/11/1972, the Government authorized the Chief Conservator of Forest in the Department andvested him with power by Sub-section (3) of Section 48-A of the J&K Forest Act Subsequently, Jammu & Kashmir Special TribunalAct, 1988 was enforced and the powers to hear the appeals, revisions & review petitions under any law made by the Legislature,that lie with the Government or the Minister, would be preferred and heard before the Tribunal.

Court hear observed� that Section 3 of the J&K Special Tribunal starts with non obstante clause. A clause beginning with'Notwithstanding anything contained in any law made by the State Legislature,' is something appended to a section in the beginning,with a view to give the enacting part of this section in case of conflict an overriding effect over the provision or Act mentioned inthe non-obstante clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non-obstante clause, theenactment following it will have its full operation or that the provisions embraced in the non-obstante clause will not be animpediment for the operation of the enactment. The proper approach would be that the non-obstante clause is to be understood asoperating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.Thus paying attention to what has been stated in Section 3 of the J&K Special Tribunal Act, it is clearly deducible that the powerexercised by the Government or the Minister with regard to hearing of appeals, revisions and review petitions hither-to is vestedwith the Tribunal. This makes it clearly manifest that the Chief Conservator of Forests is a functionary/agent of the Government,exercised power of appeal on behalf of the Government or a Minister based on notification SRO-777 of 1972. When the powers ofthe Government or a Minister with regard to the appeal, revision or review have been taken away with the coming into force the J&KSpecial Tribunal Act, 1988, such powers no longer remain with its functionaries and to act on their behalf.

The inevitable conclusion, therefore, reached is that appeal arising out of order passed under Section 48-A of the J&K Forest Act,1987 would lie before the Tribunal under the J&K Special Tribunal Act, 1988 and is accordingly dismissed.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 151-158 of 1996

State of M.P. Vs. Kedia Leather & Liquor Ltd. and Ors. Decided On: 19.08.2003

Hon'ble Judges: Doraiswamy Raju and Arijit Pasayat, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Sakesh Kumar, Adv. for Vibha Datta Makhija, S.K. Agnihotri and Rohit K. Singh, Advs.

For Central Pollution Control Board: Vijay Panjwani, Adv.

For Respondents/Defendant: S.K. Gambhir, Sr. Adv., K.K. Mohan, Anil Sharma and Awanish Sin(sic)ha, Advs.


Subject: Criminal

Catch Words: Air Pollution, Civil Proceeding, Constitution of India, Damage, Delinquent, Oath, Pollution Control, Public Nuisance, Right to Live,Special Statute

Acts/Rules/Orders: Water (Prevention and Control of Pollution) Act, 1974 - Sections 30, 32 and 33; Air (Prevention and Control of Pollution) Act, 1981 -Sections 18, 20 and 22A; Criminal Procedure Code (CPC), 1973 - Sections 133, 144 and 397; Constitution of India - Article 21

Cases Referred: Vasant Manga Nikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by Lrs. and Anr., 1995 Supp. (4) SCC 54; Municipal Council,Palai through the Commissioner of Municipal Council, Palai v. T.J. Joseph, AIR 1963 SC 1561; Northern India Caterers (Private) Ltd.



Palai through the Commissioner of Municipal Council, Palai v. T.J. Joseph, AIR 1963 SC 1561; Northern India Caterers (Private) Ltd.and Anr. v. State of Punjab and Anr., AIR 1967 SC 1581; Municipal Corporation of Delhi v. Shiv Shanker, 1971(1) SCC 442; Ratan LalAdukia and Anr. v. Union of India, AIR 1990 SC 104; Garnett v. Bradley, (1878) 3 AC 944 (HL); A.G. v. Moore, (1878) 3 Ex. D 276;R.S. Raghunath v. State of Karnataka and Anr., AIR 1992 SC 81; Pt. Rishikesh and Anr. v. Salma Begum (Smt.), 1995(4) SCC 718;Shri A.B. Krishna and Ors. v. The State of Karnataka and Ors., JT 1998(1) SC 613

Prior History: From the Judgment and Order dated 16.3.94 of the Madhya Pradesh High Court in Crl. R. Nos. 117/90, 156, 157, 178, 181, 183 and193/91 and Miscellaneous Crl. Case No. 553 of 1991

Disposition: Appeal partly allowed

Citing Reference:

** Relied On

Vasant Manga Nikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by Lrs. andAnr�� **

Municipal Council, Palai through the Commissioner of Municipal Council, Palai v. T.J.Joseph�� **

Northern India Caterers (Private) Ltd. and Anr. v. State of Punjab andAnr�� **

Municipal Corporation of Delhi v. Shiv hanker�� ** Ratan Lal Adukia and Anr. v. Union of India�� **

Garnett v. radley �� **

A.G. v. Moore�� **

R.S. Raghunath v. State of Karnataka and Anr�� **

Pt. Rishikesh and Anr. v. Salma Begum (Smt.)�� **

Shri A.B. Krishna and Ors. v. The State of Karnataka andOrs��**

Case Note:

Environment � Water (Prevention and Control of Pollution) Act, 1974 � Section 30, 32, 33 � Air (Prevention and Control ofPollution) Act � Section 18, 20, 22A � Criminal Procedure Code � Section 133, 144 � Sub-divisional magistrate servedorders directing respondents who owned industrial units to close their industries on the ground that serious pollution wascreated by discharge of effluent from respective factories thereby causing a public nuisance � To bring in application ofSection 133 there must be immediate danger to the property and consequential nuisance to the public � Two statutes

relate to prevention and control of pollution and also provides for penal consequences in case of breach of statutoryprovisions � Provisions of the section are in the nature of preventive measures � Provisions of the two legislature appearto be mutually exclusive and question of repeal of Section 133 does not arise

JUDGMENT

Arijit Pasayat, J.

1. View expressed by High Court of Madhya Pradesh, Jabalpur Bench at Indore holding that after introduction of Water (Preventionand Control of Pollution) Act, 1974 (hereinafter referred to as the 'Water Act') and the Air (Prevention and Control of Pollution) Act,1981 (hereinafter referred to as the 'Air Act'), there was implied repeal of Section 133 of the Code of Criminal Procedure, 1973 (inshort the 'Code', is questioned in these appeals.

2. Factual background needs to be noted in brief as legal issues of pristine nature are involved. The Sub-Divisional Magistrate(hereinafter referred to as the 'SDM') of the area concerned served orders in terms of Section 133 of the Code directing therespondents who owned industrial units to close their industries on the allegation that serious pollution was created by discharge ofeffluent from their respective factories and thereby a public nuisance was caused. The preliminary issues and the proceedingsinitiated by the SDM were questioned by the respondents herein before the High Court under Section 397 of the Code.

3. The main plank of their arguments before the High Court was that by enactment of Water Act and the Air Act there was impliedrepeal of Section 133 of the Code.

4. The plea was contested by the SDM on the ground that the provisions of Water Act and the Air Act operate in different fields,and, therefore, the question of Section 133 of the Code getting eclipsed did not arise.

5. The High Court referred to various provisions of the Water Act and Air Act and compared their scope of operation with Section133 of the Code.

6. The High Court was of the view that the provisions of the Water and the Air Acts are in essence elaboration and enlargement ofthe powers conferred under Section 133 of the Code Water and Air pollution were held to be species of nuisance or of the conductof trades or occupation injuries to the health or physical comfort to the community. As they deal with special types of nuisance,they ruled out operation of Section 133 of the Code. It was concluded that existence and working of the two parallel provisionswould result not only in inconvenience but also absurd results. In the ultimate, it was held that the provisions of the Water and AirActs impliedly repealed the provisions of Section 133 of the Code, so far as allegations of public nuisance by air and water pollution



Acts impliedly repealed the provisions of Section 133 of the Code, so far as allegations of public nuisance by air and water pollutionby industries or persons covered by the two Acts are concerned. As a consequence, it was held that the SDM had no jurisdiction toact under Section 133 of the Code.

7. Learned counsel for the appellant-State submitted that the view expressed by the High Court is not legally tenable. The threestatues operate in different fields and even though there may be some amount of over-lapping, they can co-exist. A statutoryprovision cannot be held to have been repealed impliedly by the Court. Learned counsel for the respondents-units submitted thatthis Court had occasion to pass interim orders on 2.1.2001. Exception was taken to the manner of functioning of the MadhyaPradesh Pollution Control Board (in short the 'Board') and directions were given to take necessary action against the delinquentofficials. Proceedings were initiated and on the basis of the reports filed by the functionaries of the reconstituted Board, functioningof the factories had been discontinued. The legality of the proceedings and the orders passed therein have been questioned and theBoard has been moved for grant of necessary permission for making the factories functional. In this background it is submitted thatthe issues raised have really become academic. Though, learned counsel for the appellant-State and the Board accepted theposition to be factually true, it is submitted that considering the impact of the decision which would have far reachingconsequences, the legal issues may be decided and appropriate directions should be given so far as the functioning or closure of thefactories aspect is concerned.

8. Section 133 of the Code appears in Chapter X of the Code which deals with maintenance of public order and tranquility. It is apart of the heading 'public nuisance'. The term 'nuisance' as used in law is not a term capable of exact definition and it has beenpointed out in Halsbury's Laws of England that "even at the present day there is not entire agreement as to whether certain acts oromissions shall be classed as nuisances or whether they do not rather fall under other divisions of the law of tort". In Vasant MangaNikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by Lrs. and Anr. (1995 Supp. (4) SCC 54) it was observed that nuisance isan inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precisedefinition. To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequentialnuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. Theobject and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in thesense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. It applies to acondition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may

happen at some later point of time. It does not deal with all potential nuisance, and on the other hand applies when the nuisance isin existence. It has to be noted that some times there is a confusion between Section 133 and Section 144 of the Code. While thelatter is more general provision the former is more specific. While the order under the former is conditional, the order under the latteris absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings.

One significant factor to be noticed is that person against whom action is taken is not an accused within the meaning of Section133 of the Code. He can give evidence on his own behalf and may be examined on oath. Proceedings are not the proceedings inrespect of offences. The Water Act and the Air Act are characteristically special statutes.

9. The two statutes relate to prevention and control of pollution and also provides for penal consequences in case of breach ofstatutory provisions. Environmental, ecological air and water pollution amount to violation of right to life assured by Article 21 of theConstitution of India, 1950 (in short 'the Constitution'). Hygienic environment is an integral facet of healthy life. Right to live withhuman dignity becomes illusory in the absence of humane and healthy environment.

10. Chapter V of the Water Act deals with prevention and control of water pollution. Similarly, Chapter IV of the Air Act deals withprevention and control of air pollution. Sections 30, 32 and 33 of the Water Act deal with power of the State Board to carry outcertain works, emergency measures in certain cases and power of Board to make application to the Courts for restrainingapprehended pollution respectively. Under Sections 18, 20 and 22-A of the Air Act deal with power to give directions, power to giveinstructions for ensuring standards and power of Board to make application to Court for restraining persons from causing air pollutionrespectively.

11. The provisions of Section 133 of the Code can be culled in aid to remove public nuisance caused by effluent of the dischargeand air discharge causing hardship to the general public. To that extent, learned counsel for the appellant is correct in hissubmission.

12. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature whileenacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not providea repealing provisions, the intention is clear not to repeal the existing legislation. (See: Municipal Council Palai through theCommissioner of Municipal Council, Palai v. T.J. Joseph (AIR 1963 SC 1561), Northern India Caterers (Private) Ltd. and Anr. v. Stateof Punjab and Anr. (AIR 1967 SC 1581), Municipal Corporation of Delhi v. Shiv Shanker (1971 (1) SCC 442) and Ratan Lal Adukia andAnr. v. Union of India (AIR 1990 SC 104). When the new Act contains a repealing section mentioning the Acts which it expresslyrepeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (Persone velrei) est exlusio alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnettv. Bradley (1878) 3 AC 944 (HL). The continuance of existing legislation, in the absence of an express provision of repeal byimplication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessaryimplication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and thatthe two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlierAct, a repeal will not be inferred. (See: A.G. v. Moore (1878) 3 Ex. D 276, Ratanlal's case (supra) and R.S. Raghunath v. State ofKarnataka and Anr. (AIR 1992 SC 81).

13. The necessary questions to be asked are:

(1) Whether there is direct conflict between the two provisions.

(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;

(3) Whether the two laws occupy the same field.

(See: Pt. Rishikesh and Anr. v. Salma Begum (Smt.) (1995(4) SCC 718), and Shri A.B. Krishna and Ors. v. The State of Karnatakaand Ors. (JT 1988(1) SC 613)

14. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did notintend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does notmore than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a



more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by acomparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Courtleans against implying a repeal, "unless two Act are so plainly repugnant to each other that effect cannot be given to both at thesame time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together." (See Craies onStatute Law, Seventh Edition, page 366, with reference to Re: Barrey (1936) Ch. 274). To determine whether a later statuterepeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act.Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The area of operationin the Code and the pollution laws in question are different with wholly different aims and objects; and though they alleviate

nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence sideby side.

15. While as noted above the provisions of Section 133 of the Code are in the nature of preventive measures, the provisionscontained in the two Acts are not only curative but also preventive and penal. The provisions appear to be mutually exclusive andthe question of one replacing the other does not arise. Above being the position, the High Court was not justified in holding thatthere was any implied repeal of Section 133 of the Code. The appeals deserve to be allowed to the extent indicated above, whichwe direct.

16. However, if applications are pending before the Board, it would be appropriate for the Board to take necessary steps for theirdisposal. The question whether there was no infraction under Section 133 of the Code or the two Acts is a matter which shall bedealt with by the appropriate forum, and we do not express any opinion in that regard.

IN THE SUPREME COURT OF INDIA

Writ Petition No. 295 of 1992 with T.C. (C) Nos. 50, 51, 52 and 53/1996

N.D. Jayal and Anr. Vs. Union of India (UOI) and Ors. Decided On: 01.09.2003

Hon'ble Judges: S. Rajendra Babu, D.M. Dharmadhikari and G.P. Mathur, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: K.N. Rawal, Solicitor General, R.N. Trivedi and Altaf Ahmad, Additional Solicitor Generals, IndraJaisingh and Rajiv Dhawan, Sr. Advs., Sanjay Parikh, Vandana Sudan, Abinash K. Misra, A.N. Singh, S. Santhanan Swaminathan, S.Wasim A. Qadri, R.N. Poddar, B.V. Balram Das, Anil Katiyar, B. Krishna Prasad, Ashok K. Srivastava, Sunder Lal Bahuguna-in-Person,Sopal Singh, Anil Shrivastav, Jyoti Dutt, Binu Tamta, Anay K. Agrawal, K.L. Janjani, Pankaj Kumar Singh, D. Bharathi Reddy, N.L.Ganapathi, Satya Mitra Garg and Nafis A. Siddiqui, Advs. For Appearing parties and Avathar Singh Rawal, Addl. Adv. General forState


Subject: Civil

Catch Words: Abandonment, Acquisition of Land, Afforestation, Agricultural Land, Biodiversity, Burden of Proof, Catchment Area, Damage,Difference of Opinion, Domestic Law, Drinking Water, Duty of the Court, Environment Clearance, Environmental Impact Assessment,Failure to Comply, Inter-Generational Equity, International Law, Logging, Misnomer, Monetary Compensation, Multifarious, NegativeAspect, Notice Under, Pollution Control, Precautionary Principle, Public Interest, Public Interest Litigation, Public Purpose,Reclamation, Relevant Consideration, Rio Declaration, Soil Conservation, State Forest, Substantial Compliance, SustainableDevelopment

Acts/Rules/Orders: Constitution of India - Articles 21 and 32; Environment Protection Act, 1986 - Sections 3, 3(2), 3(5) and 19; Administrative Law;Land Acquisition Act - Section 4(1); Environmental Rules, 1986 - Rule 5; International and Domestic Law

Cases Referred: Narmada Bachao Andolan v. Union of India, 2000 (10) SCC 664; BALCO Employees' Union (Reqd.) v. Union of India, 2002 (2) SCC333; Tehri Bandh Virodhi Sangarsh Samiti v. State of UP, 1992 Supp. (1) SCC 44; A.P. Pollution Control Board v. Prof. M.V. Nayudu(Retd.) and Ors., 1999 (2) SCC 718; Vellore Citizens Welfare Forum v. Union of India, 1996(5) SCC 647; M.C. Mehta v. Union ofIndia, 2002 (4) SCC 356, 1997 (2) SCC 353; Samata v. State of Andhra Pradesh, 1997 (8) SCC 191; Madhu Kishore v. State ofBihar, 1996 (5) SCC 125; State of Himachal Pradesh v. Ganesh Wood Products, 1995 (6) SCC 363; M.C. Mehta v. Kamal Nath, 1997(1) SCC 388, (2001) 3 SCC 756; Indian Council For Enviro-Leqal Action v. Union of India and Ors., 1996 (5) SCC 281; M.L. Sud andOrs. v. Union of India and Ors., 1992 Supp. (2) SCC 123; Mohan Chand v. Union of India and Ors., 1995 Supp. (3) SCC 425; B.D.Sharma v. Union of India, 1992 Supp (3) SCC 93; Karjan Jalasay Yojana Assargrasth Shekhar Ane Snagharsh Samiti v. State ofGujarat, AIR 1987 SC 532

Citing Reference:

* Mentioned

** Relied On

*** Examined

**** Distinguished

Narmada Bachao Andolan v. Union of India�� ***

Balco Employees� Union (Regd) v. Union of India�� **

Tehri Bandh Virodhi Sangharsh Samiti v. State of UP�� **

A.P.Pollution Control Board v. Prof M.V.Nayudu (Regd). &Ors.�� ****



Ors.�� ****

Vellore Citizens Welfare Forum v. Union of India�� **

M.C.Mehta v. Union of India�� **

Samata v. State of Andhra Pradesh�� **

Madhu Kishore v. State of Bihar�� **

State of Himachal Pradesh v. Ganesh Wood Products�� *

D Sharma v. Union of India��**

Indian Council For Enviro-Legal Action v. Union of India Ors.�� **

M.L. Sud� Ors. v. Union of India & Ors.�� **

Mohan Chand v. Union of India� Ors�� **

Karjan Jalasay Yojana Assargrasth Shakhar Ane Snagharsh Samiti v. State of Gujrat �� **

Case Note:

Environment � Environment Protection Act � Section 3, 19 � Environment Rules � Rule 5 � Construction of Tehri Dam �Activist have approached Supreme Court to prot5ect the interest of General public and as well as raise issues with regardto safety of the plan and the likely devastation and loss of properties of the people downstream � Petitioner haveaddressed Supreme Court for directions to conduct further safety tests so as to ensure safety of the dam � It has beenurged that structure of the dam is not safe and its existence increases the seismic vulnerability of the entire Himalayanregion � Govt. only started the work after satisfying itself on the safety of the dam and is based on the committee reportwhich unanimously held that the that the dam is safe � Court cannot sit in judgment over scientific analysis relating tothe safety of any project5 Right to development encompasses with its definition Guarantee of fundamental human rightsand the adherence of sustainable development is sine qua non for the maintenance of balance between rights ofenvironment and development � Petitioners have not been able to establish that the respondents are carrying onconstruction without complying with the conditions of clearance � Certain lapses which occurred have been taken care bythe monitoring agencies � To ensure that all the conditions for environmental clearance are complete, case is transferredfor proper monitoring

JUDGMENT

Rajendra Babu. J.

WRIT PETITION NO. 295 OF 1992:

1. The present petition under Article 32 of the Constitution of India is the second round of legal action connected to the safety andenvironmental aspects of Tehri Dam before this Court.

2. The petitioners herein firstly urge us; to issue necessary directions to conduct further safety tests so as to ensure the safety ofthe dam. Secondly, they allege that the concerned authorities have not correspondingly complied with the conditions attached tothe Environmental Clearance dated July 19, 1990 and want us to halt the Project till the same is complied with. Lastly, they want usto look into the Rehabilitation aspects. Subsequent to the filing of this petition few others joined as intervenes. String of Affidavits,counter-affidavits and other documents disclosing the minutest details have been presented. Oral submissions on both sides havebeen addressed at length.

3. Before adverting to the contentions of safety, environmental clearance and rehabilitation, it is necessary to draw a demarcatingline between the realm of policy and the permissible areas for judicial interference in the context of present case. For this, a brieffactual survey is warranted. This is also necessary to appreciate the broader issues advanced before us.

4. Investigation for the purpose of construction of a dam at Tehri for hydel power generation was commenced as early as in 1961.In the year 1972, the Planning Commission envisaged a cost of Rs. 197.82 crores and in 1976, administrative clearance to theProject was given by the Government of U.P. In March 1980, a direction was issued by the then Prime Minister for an in-depthreview of the whole project. Consequently, an Expert Group was constituted by the Ministry of Science and Technology. The PrimeMinister's note on the file reads as follows:

"There are several proposals which were agreed to earlier but would need to be looked into again. Amongst them are Silent Valley,the dam in Tehri Garhwal and the dam in Lalpur, Gujarat. It seems that larger areas of very fertile land are being submerged withoutany commensurate gains. There may be other such cases also, it is true that these decisions have been taken over a period of timebut there is great local distress and a feeling that contractors and other such groups will be the main gainers. Hence, it is necessaryto have another look in depth."

5. In May 1980, an interim report was submitted by the Expert Group and the final report was submitted in August 1986. Eventhough an expenditure of Rs. 206 crores has been incurred, the Expert Committee recommended to abandon the project. Ministry ofEnvironment and Forest (MoEF) accepted the report in October 1986 and endorsed the view of the Expert Committee. In November1986, the erstwhile USSR offered administrative, technical and financial assistance on a turnkey basis and the Tehri Project wasrevived as recipient of such aid. In November 1986, a Protocol was signed with USSR for providing technical and financial assistancefor this project to the tune of 1000M Roubles. Thus the need to obtain environmental clearances even in the absence ofEnvironmental Action Plans became urgent so as to quickly complete all administrative and technical formalities. In January 1987, theGovernment announced in the Press that it has cleared the project after a thorough assessment of the impact of the project onenvironment and after satisfying themselves that the adverse impact on environment can be remedied. A general agreement wassigned in Moscow and it was decided that the dam construction would be carried out jointly by Soviet and Indian Engineers,Thereafter, the project, which was initially executed by the Irrigation Department of the Government of U.P. has been taken over by



Thereafter, the project, which was initially executed by the Irrigation Department of the Government of U.P. has been taken over bythe joint venture company of the Government of India and the Government of U.P. The company was called Tehri HydroDevelopment Corporation Ltd (THDC). In July 1989, MoEF revised cost estimates and released further funds, conditional to its priorenvironmental clearance. Accordingly, THDC formulated Environment Action Plans for consideration and assessment by MoEF. InFebruary 1990, the Environmental Appraisal Committee, MoEF concluded that the Tehri Dam Project, as proposed, should not betaken up as it does not merit environmental clearance. Subsequently, On July 19, 1990, conditional clearance to the project wasgiven by MoEF. It was specifically provided that completion of status, formulation of action plans and their implementation will bescheduled in such a manner that their execution is pan-passu with the construction, failing which the engineering works would bebrought to a halt and this condition will be enforced among others under the provisions of the Environment Protection Act, 1986.

6. The petitioners raised the question before us that when a decision had been taken in 1990 to abandon the project as to howclearance could be given on July 19, 1990? Again they pointed out that on 21.10.1994 serious consequences of the implementationlagging behind was taken note of but the project was allowed to continue.

7. From the narration of various events set out earlier, it is clear that even by August 1986 an expenditure of Rs.206 crores hadbeen incurred for the construction of the dam. It is after the THDC Action Plans for consideration and assessment by MoEF havebeen submitted. These were considered on two occasions: firstly, in February 1890 and again on July 19, 1090 and it is thereafterthe conditional clearance was given. It is contended that the environmental clearance which was granted on July 19, 1990 iswithout proper application of mind and, therefore, the dam construction should not be allowed to proceed. The law on this aspecthas been clearly set out in the decision of this Court in Narmada Bachao Andolan v. Union of India. 2000 (10) SCC 664. As in thepresent case, in the case of Sardar Sarovar Project also, four identical conditions were imposed and they are as under:

"(i) NCA will ensure that environmental safeguard measures are planned and implemented pari-passu with progress of work onproject.

(ii) The detailed surveys' studies assured will be carried out as per the schedule proposed and details made available to theDepartment for assessment.

(Ill) the catachment area treatment programme and the rehabilitation plans be so drawn as to be completed ahead of reservoirfilling,

(iv) The Department should be kept informed of progress on various works periodically."

8. The effect of grant of clearance subject to pari-passu conditions has also been examined by this Court in Sardar SarovarProject's case. It has been noticed therein that there are three stages with regard to the undertaking of an infrastructural project -the first of which is the conception or planning, second is decision to undertake the project and the third is the execution of theproject. The conception and the decision to undertake a project has to be regarded as a policy decision.

9. In Sardar Sarovar Project case it was also held that when two or more options are possible and the Government takes a policydecision it is then not a function of the Court to re-examine the matter by way of appeal. Necessary analogy could also be drawnfrom BALCO Employees' Union (Reqd.) v. Union of India , 2002 (2) SCC 333.

10. Once such a considered decision is taken, the proper execution of the same should be undertaken expeditiously. It is for theGovernment to decide how to do its job. When it has put a system in place for the execution of the project and such a systemcannot be said to be arbitrary, then the only role which the Court has to play is to ensure that the system works in the manner itwas envisaged. It is made clear in that decision that the questions whether to have an infrastructual project or not and what is thetype of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equippedto adjudicate on a policy decision so undertaken. However, a note of caution was struck that the Courts have a duty to see that inthe undertaking of a decision, no taw is violated and people's fundamental rights as guaranteed under the Constitution are nottransgressed upon except to the extent permissible under the Constitution. When a law has been enacted in relation to theprotection of environment and such law is being given effect to and there is no challenge to such law, the duty of the Courts wouldbe to see that the Government and other respondents act in accordance with law and there is no other obligation for the Court toexamine further in the matter. We respectfully agree with the view expressed in the Sardar Sarovar project's case and apply thesame to the facts arising in this case.

11. Further, it was noticed in the aforesaid decision that in cases whore a project is taken up of the present nature, the Court willcertainly bear in mind that environmental concern should be examined not only with reference to the submerged areas but also itssurrounding areas. The impact has to be examined on the project as a whole and at the same time it should also be noticed that theconstruction of a dam would result in multifold improvement in the environment of the areas where the canal waters will reach. Thebenefits which have been reaped by the people all over India with the construction of the dams are too well-known and, therefore,the Government cannot be faulted for deciding to construct the high dam on river Tehri with a view to provide water and electricityin the area as was the decision in the Sardar Sarovar project's case also. In such situations, displacement of people residing in theproposed project sites and the areas to be submerged is an important issue. Therefore, a properly drafted relief and rehabilitationplan is absolutely required and the Government was also conscious of this particular fact. It, therefore, not only examined thismatter on several occasions but also constituted an Expert Committee on 17.7.1996 to examine the environmental and rehabilitationaspects. Several times the matter was examined by the Government at different stages and follow up action plans also wereactively considered by the Government. The report given by Hanumantha Rao Committee (HRC) was accepted by the Governmentsubject to certain conditions and the project is being implemented in terms thereof.

12. Therefore, at this penultimate stage of the proceedings, it is too late in the day to think as to why the decision was taken toconstruct the project or decisions have been taken to continue the project though at one stage it was thought it would not beappropriate to continue the same.

13. With these clarifications, we will now proceed to the specific aspects of safety and conditional clearance.

Safety Aspect

14. Tehri Dam is being constructed at the confluence of the Bhagirathi and Bhilangana rivers in the neighborhood of the Garhwaltown in the State of Uttaranchal. According to the petitioners the structure of the dam itself is not safe and also alleged that itsexistence increases the seismic vulnerability of the entire Himalayan region. By way of abundant caution they want the concernedauthorities to conduct Three-Dimensional (3D) Non-Linear Test to evaluate the earthquake susceptibility of the dam against theMaximum Credible Earthquake. They also insist upon the computer simulated Dam Break Analysis to estimate the magnitude ofdamages in the unexpected eventuality of any dam failure. The respondents submitted that they explored the possibility of such



damages in the unexpected eventuality of any dam failure. The respondents submitted that they explored the possibility of suchtests and arrived at a conclusion that such tests are neither practical nor necessary in the present case.

15. The respondents added that the studies related to site specific assessment of seismicity, testing of fill materials for determiningdynamic properties and detailed dynamic analysis, were carried out independently by two agencies; that they are the Department ofEarthquake Engineering, University of Roorkee, and Hydro Project Institute (HPI), Moscow; that the result of their studies indicatedthat earth and rockfill type dams as chosen for Tehri are the safest man-made structures in earthquake prone zones due to their

large inertia, high damping and high flexibility; that the dam fill material is being compacted to concrete like density, which provideshigh strength while retaining the flexibility; that relatively flat slopes have been adopted for up-stream and down stream of the dam,which are flatter than the slopes provided in some recent high dams built/planned in regions of similar high seismicity; that,therefore, the Tehri Dam is a fail-safe structure and the design has been found safe against the worst earthquake scenario of thearea, even when very conservative and severe seismic parameters were assumed for these tests. A high level Committee under theChairmanship of Director General, Geological Survey of India, which consists members from Central Water Commission; Director,National Geophysical Research Institute; Head of Department of Earthquake Engineering, University of Roorkee, and Dr. V.K. Gaur,the then Secretary, Department of Ocean Development was also constituted to examine issues concerning safety of the dam. TheCommittee in its report established that even in the worst scenario of possible occurrence of a large magnitude earthquake of 8+ inrichter scale with the probable location at a depth of 15 km below the dam site, the same would be safe. They concluded that damdesign is safe and added that all danger arising out of the seismicity have been taken note of and taken care of in the planning ofTehri Dam project.

16. From the documents before us, it could be gathered that the Government also referred the matter to Seismic Expert, Prof. JaiKrishna who was the former President of International Academy of Earthquake Engineering and also Vice-Chancellor of the Universityof Roorkee. He examined the matter and opined that "the proposed dam section for the Tehri Project is safe from the point of viewof seismicity of the region" and "since conservatism has entered at almost every step of decision making, the overall factor ofsafety of the dam is high enough to eliminate any risk from earthquake of the future." The next Expert Group that consisted of theDirector General, Geological Survey of India, made a report on 25.7.1991 and recommended that the reports of the High LevelCommittee and the review given by Prof, Jai Krishna should be accepted. The seismic stability of the dam was further got testedthrough the Hydro Project Institute, Moscow, against actual acceleogram of the Gazli earthquake for the maximum verticalacceleration of 1.36g and horizontal acceleration of 0.72g both acting simultaneously and the dam design was again found to besafe. Even though the design of the dam had been earlier independently checked by two separate agencies, it was again examinedand it was found that the project appears to be safe. Subsequently, during the pendency of this petition, in order to allay fearsexpressed in certain quarters, the Government of India in June 1996 appointed a Group of Five Experts to examine the relevantscientific and technical reports and other information relating to safety of the Tehri Dam and make its recommendations to theGovernment for consideration. In the selection of the experts Shri Sundarlal Bahuguna, who has been spearheading the movementagainst the construction of the Tehri Dam, was also associated and he recommended the inclusion of two engineers apart from thethree seismologist. Thus the names of all the five Experts were suggested by Shri Bahuguna. The Group of Five Experts, after adetailed discussion on the various issues related to the seismic safety of the Tehri Dam, concluded that a comprehensive appraisalof the seismic safety of the dam required completion of the two key exercises by employing recent advances in conceptual andcomputational capabilities and they are, (i) quantitative estimation of seismic hazard at all the Tehri Dam site, and (ii) evaluation ofthe performance of the Tehri Dam as currently designed, if it was exposed to the estimated seismic hazard at the site. Accordingly,the Group or Experts got conducted the necessary exercises at their own decided parameters and methods. The Group alsoconsidered the International Commission on Large Dams Guidelines on Earthquake Analysis Procedure for Dams and Seismicity andDam Design. Based on these materials the Group of Experts finally submitted the report on 18.2.1998. They concluded that the"present design of the Dam is expected to be structurally safe to withstand the maximum credible earthquake during the economicperformance life of the dam-reservoir system." The Group of Experts was unanimous in their recommendation as stated above.However, as a matter of abundant caution , four Experts suggested (i) 3-D Non-Linear analysis of the Dam to evaluate itsperformance against the maximum credible earthquake and (ii) a simulated dam reak analysis to ensure that in the unlikely event ofan uncontrolled release of water, the consequences are minimum, be conducted. There was difference of opinion between the fourExperts and the Fifth Expert only on the need to undertake these two additional studies as a matter of abundant caution. TheGovernment of India, after receipt of the report of the Group of Experts, examined the further recommendation of the four out offive Experts in consultation with the Central Water Commission, which is a technical body of the Government and nodal agency inthe country for planning and design of River Valley Projects who in turn referred the report of the Expert Group together with theneed for carrying out the work recommended by way of abundant caution to the National Committee on Seismic Design Parameterswhich is a standing technical committee and it furnished its views. In addition, plethora of material has been placed by way ofvarious text books and studies carried out by other agencies. We think that it is neither feasible nor proper for us to delve intothese details. The Government of India, after considering the views thereof, finally decided that there was no necessity toundertake the work recommended further by the Four Experts by way of abundant caution and clearance to the project was given.

17. In Tehri Bandh Virodhi Sangarsh Samiti v. State of UP , 1992 Supp. (1) SCC 44, the grant of clearance on July 19, 1990 wascalled in question before this Court in a writ petition and this Court examined the safety aspects which were brought to the noticeof the court and it was held that the clearance given was not as a result of non-application of mind by the Government on safetyand environmental aspects and it was particularly examined with reference to the fact that site of the project is being within theearthquake prone zone and this Court, after specific examination of the record observed that the project was considered by theEnvironmental Appraisal Committee of MoEF, Committee of Secretaries, High Level Committee comprising experts of scientific andspecialised organisations and also by a renowned expert of international repute and, therefore, the Government considered thequestion of safety of the project from various details more than once and on being satisfied with the reports of the experts gaveclearance to the project. In those circumstances, this Court thought fit not to interfere with the same.

This Court dealt with the safety concerns and held that:

"...In our opinion the Court can only investigate and adjudicate the question as to whether the government was conscious to theinherent danger as pointed out by the petitioners and applied its mind to the safety of the dam. We have already given facts indetail, which show that the government has considered the question on several occasions in the light of the opinions expressed bythe experts. The government was satisfied with the report of the experts and only thereafter clearance has been given to theproject."

18. In the present case the Government, even after the decision of this Court which did not interfere with the decision of theGovernment on safety aspects In Tehri Bandh Virodhi Sangarsh Samiti's case (supra) again seriously examined safety aspects asa matter of precaution. The Office Memorandum dated 1/2/1999 of the Ministry of Power, Government of India, before us testifiesthis position. Green signal for further works was given by the Government after satisfying itself with the safety of the dam. A mererevisit to the earlier decision cannot be counted as a sign of doubt regarding the dam safety. If the Government so desires theycould have abandoned the Project. The necessity or effectiveness of conducting 3D Non-Linear Test or Dam Break Analysis were



could have abandoned the Project. The necessity or effectiveness of conducting 3D Non-Linear Test or Dam Break Analysis weretaken into account by the Government and if the Government decided not to conduct such tests upon the opinion of the concernedexpert bodies, then the Court cannot advice the Government to go for such tests unless malafides, arbitrariness or irrationality isattributed to that decision. The decision of the Government is not based on any financial constraints or uncertainty as to technicalopinion. It was clearly of the view that the last Committee was unanimous that the Tehri Dam to be constructed is safe but theadvice based on abundant caution was not accepted. As a result, we need not re-examine the safety aspects of the dam.

19. This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts inscience may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects. The opposingviewpoints of the experts will also have to be given due consideration after full application of mind. When the Government or theconcerned authorities after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriatefor the Court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It istheir forte. In such cases, if the situation demands, the Courts should take only a detached decision based on the pattern of thewell-settled principles of administrative law. If any such decision is based on irrelevant consideration or non-consideration of materialor is thoroughly arbitrary, then the Court will get in the way. Here the only point to consider is whether the decision-making agencytook a well-informed decision or not. If the answer is 'yes' then there is no need to interfere. The consideration in such cases is inthe process of decision and not in its merits.

20. In this context, reliance is sought to be placed on the decision of this Court in A.P. Pollution Control Board v. Prof. M.V.Nayudu (Retd.) and Ors. , 1999 (2) SCC 718. In that decision, this Court viewed that in scientific matters of complex natureresulting in uncertainty, reference has to be made to a specialised technical/expert body and not merely decide the matter on wellknown principles of administrative law of court not re-examining the matter if all relevant considerations have been taken note of. Inthe present case when once a decision had been given by this Court on safety aspects on an earlier occasion and thereafter thematter was again examined by the Government through different agencies and had taken a decision as to the necessity of furthertest by way of abundant caution should be relevant or not, we do not think, we can sit in judgment over such decision, particularlywhen there is no difference of opinion among the Experts as to the safety of the dam. It is only by way of abundant caution suchstudies were suggested by four out of five experts. Thus the usefulness or necessity thereof itself being in doubt, as expressed invarious reports, and text books relied on by either side, the principle stated in A.P. Pollution Control Board's case (supra) cannotbe applied. In that decision it was noticed that inadequacies of science had led to the precautionary principle leading to the principleof burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed onthose who want to change the present state of affairs. After detailed consideration of this decision, it is held in Narmada BachaoAndolan's case (supra) :-

"It appears to us that the 'precautionary principle' and the corresponding burden of proof on the person who wants to change thestatus quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted isnot Know. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to becaused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarilybe on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology or environmental ofsetting up of an industry is know, what has to be seen is that if the environment is likely to suffer, then what mitigative steps canbe taken to offset the same. Merely because there will be a change is no reason to presume that there will be an ecologicaldisaster. It is when the effect of the project is known that the principle of sustainable development would come into play which willensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type orextent or development can take place which can be sustained by nature/ecology with or without mitigation.

In the present case, we are not concerned with the polluting industry which is being established. What is being constructed is alarge dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would resultin a change of environment but it wilt not be correct to presume that the construction of a large dam like the Sardar Sarovar willresult in an ecological disaster India has an experience of over 40 years in the construction of dams. The experience does not show

that construction of a large darn is not cost-effective or leads to ecological or environmental degradation. On the contrary therehas been ecological upgradation with the construction of large dams. What is the impact en environment with the construction of adam is well known in India and, therefore, the decision in A.P. Pollution Control Board case will have no application in the presentcase."

[at pp. 727-728]

Aspects Related to Conditional Clearance

21. Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed.In Vellore Citizens Welfare Forum v. Union of India. 1996(5) SCC 647, and in M.C Mehta v. Union of India, 2002 (4) SCC 353,it was observed that the balance between environmental protection and developmental activities could only be maintained bystrictly following the principle of 'sustainable development.' This is a development strategy that caters the needs of the presentwithout negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development willput us on a path that ensures development while protecting the environment, a path that works for all peoples and for allgenerations. It is a guarantee to the present and a bequeath to the future. All environmental related developmental activities shouldbenefit more people while maintaining the environmental balance. This could be ensured only by the strict adherence of sustainabledevelopment without which life of coming generations will be in jeopardy.

22. In a catena of cases we have reiterated that right to clean environment is a guaranteed fundamental right, May be in differentcontext, the right to development is also declared as a component of Article 21 in cases like Samata v. State of Andnra Pradesh,1997 (8) SCC 191, and in Madhu Kishore v. State of Bihar, 1996 (5) SCC 125.

23. The right to development cannot be treated as a mere right to economic betterment or cannot be limited to as a misnomer tosimple construction activities. The right to development encompasses much more than economic well being, and includes within itsdefinition the guarantee of fundamental human rights. The 'development' is not related only to the growth of GNP, in the classicwork - 'Development As Freedom' the Nobel prize winner Amartya Sen pointed out that 'the issue of development cannot beseparated from the conceptual framework of human right'. This idea is also part of the UN Declaration on the Right to Development.The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvementof peoples' well being and realization of their full potential. It is an integral part of human right. Of course, construction of a dam ora mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated asintegral component for development.

24. Therefore, the adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balancebetween the rights to environment and development. Right to environment is a fundamental right. On the other hand right to



between the rights to environment and development. Right to environment is a fundamental right. On the other hand right todevelopment is also one. Here the right to 'sustainable development' cannot be singled out. Therefore, the concept of 'sustainabledevelopment' is to be treated an integral part of 'life' under Article 21. The weighty concepts like inter-generational equity (State ofHimachal Pradesh v. Ganesh Wood Products, 1995 (6) SCC 363), public trust doctrine (M.C. Mehta v. Kamal Nath , 1997 (1)SCC 388) and precautionary principle (Vellore Citizens), which we declared as inseparable ingredients of our environmentaljurisprudence, could only be nurtured by ensuring sustainable development.

25. To ensure sustainable development is one of the goals of Environmental Protection Act, 1986 (for short 'the Act') and this isquiet necessary to guarantee 'right to life' under Article 21. If the Act is not armed with the powers to ensure sustainabledevelopment, it will become a barren shell. In other words, sustainable development is one of the means to achieve the object andpurpose of the Act as well as the protection of 'life' under Article 21 . Acknowledgment of this principle will breath new life into ourenvironmental jurisprudence and constitutional resolve. Sustainable development could be achieved only by strict compliance of thedirections under the Act. The object and purpose of the Act -"to provide for the protection and improvement of environment" couldonly be achieved by ensuring the strict compliance of its directions. The concerned authorities by exercising its powers under theAct will have to ensure the acquiescence of sustainable development. Therefore, the directions or conditions put forward by the Actneed to be strictly complied with. Thus the power under the Act cannot be treated as a power simpliciter, but it is a power coupledwith duty. It is the duty of the State to make sure the fulfillment of conditions or direction under the Act, Without strict compliance,right to environment under Article 21 could not be guaranteed and the purpose of the Act will also be defeated. The commitment tothe conditions thereof is an obligation both under Article 21 and under the Act. The conditions glued to the environmental clearancefor the Tehri Dam Project given by the Ministry of Environment vide its Order dated July 19, 1990 has to be viewed from thisperspective.

26. The relevant portion of the environmental clearance certificate of the Tehri dam dated July 19, 1990 is verbatim extractedhereunder:

"Tehri Dam Project was initiated in 1972 for an installed capacity of 600 MW, now revised to 2400 MW to be taken up in threestages. The collection of data and preparation of environmental action plans is yet to be finally completed. Meanwhile, an amount of

Rs. 440 crores has been spent on various project related works. The Department of Power and the Government of Uttar Pradeshhave assured to furnish all the detailed action plans according to a prescribed time schedule and to implement the action plan pan-passu with the implementation or the engineering works.

After taking into account all the factors, the Tehri Dam Project is accorded environmental clearance subject to the followingconditions:

(A) The Project Authorities must get the safety aspects and the design of the Dam approved by the High Level Expert Committeeconstituted for the purpose.

(B) Comprehensive Environmental Management Plans must be formulated to the satisfaction of and got approved from, the Ministryof Environment & Forests in a time bound manner as outlined below:

3.1 Catchment Area Treatment

Obligations of Tehri Hydro Development Corporation (THDC)

(a) The THDC will, as per the recommendations of the Remote Sensing Applications Centre, UP, identify the critically degraded areasconforming to the "very high" and "high" erodability classification and prepare action plans by 31.12.90 for the treatment of theseareas in consultation with the Government of Uttar Pradesh.

(b) The action plans prepared will ensure that the catchment area treatment is completed before 31.12.1995 on the basis ofdetailed annual action plans.

(c) The THDC will put at the disposal of the Government of Uttar Pradesh all the requisite resources annually to implement theaction plans.

Obligations of the Government of UP.

The Government of U.P. will cooperate in the preparation of comprehensive action plans for catchment area treatment by31.12.1990 and to implement these action plans by 3112.1995 with the resources provided by THDC.

3.2. Rehabilitation

The THDC will, through a reputed institution, undertake a socio-economic study of the measures needed to ensure that thestandard of living of the oustees is not affected due to the project. The study will be completed by 30.6.1991. The THDC willimplement such recommendations as may be made by the Ministry of Environment and Forests for rehabilitation after considerationof the study report by the MEF. The rehabilitation package covering population affecting Koteshwar dam as well as those living onthe rim of the reservoir and likely to be affected will be prepared before 31.3.1991.

3.3 Command Area Development

The Government of U.P. will prepare a plan for command area development for the areas to be irrigated from the Tehri Project by31.3.1991 and will implement this package by 31.3.1995.

3.4 Flora and Fauna

THDC will commission, a study of the flora and fauna going under submergence as well as that affected by related works in theregion so that reclamation plans can be worked out along with setting up of botanical gardens. The study of flora and fauna must becompleted by May, 1991 and action plan prepared thereafter to be executed before impoundment commences.

3.5 Water Quality Maintenance

(a). The THDC will set up water quality monitoring stations to monitor the quality of reservoir water.



(b) The THDC will initiate a water quality modeling study to formulate the measures needed to preserve the water quality andprepare an action plan to Implement the measures recommended by such a study.

3.6 Disaster Management

A disaster management plan will be worked out by THDC by 31.3.1991 in consultation with the likely affected population and the

area authorities.

3.7 Bhagirathi Basin Management Authority

The Department of Power will ensure the setting up of the Bhagirathi Basin Management Authority on a statutory basis throughlegislative action before 31.3.1991.

(C) The completion of studies, formulation of action plans and their implementation will be scheduled in such a way that theirexecution is pari passu with the engineering works failing which the engineering works would be brought to a halt without anyextraneous considerations. These conditions will be enforced, among others, under the provisions of the Environment (Protection)Act, 1986."

27. In a letter sent on 21.10.1994 by the Additional Director, McEF, it is noticed that even though the Tehri Dam Project wasaccorded environmental clearance in July, 1990, the status of implementation of various safeguard measures is lagging far behind.

28. A communication had been sent as early as in February, 1990 containing the report of the Environmental Appraisal Committal,Ministry of Environment and Forests, Government of India wherein it is stated as under :-

"...after a careful examination of the information and data available, the Committee has come to the unanimous conclusion that theTehri Dam Project, as proposed, should not be taken up as it does not merit environmental clearance."

29. It was also mentioned in another letter dated 19.7.1990 that "conditional clearance to 'the project was given by the Ministry ofEnvironment and Forests. It was specifically provided that completion of status, formulation of action plans and theirimplementation will be scheduled in such a way that their execution is pan passu failing which the engineering work would bebrought to a halt. This condition will be enforced among others under the provisions of the Environment (Protection) Act, 1986."On 12.4.1991 another letter was sent again noticing the failure of Tehri Hydel Development Corporation (THDC) to comply with theconditional environment clearance and pointed out total dissatisfaction on the compliance contained in the conditional clearance. Itwas stated that THDC should submit comprehensive environmental plans as a component of the overall environment managementplans and that the plan should be effectively implemented failing which action under the Act would be initiated. On 5.9.1991 a noticeunder Section 19(b) of the Act was issued for stopping the work on Tehri Hydro Electric Project on the ground that the non-fulfilment of conditions provided in the environmental clearance within the stipulated time frame has resulted in the lapse of the saidclearance and, therefore, the work of the project should be stopped immediately. It is on the basis of these communications it iscontended that as to why decision to continue the project was taken on 21.10.1994 even though the consequence was disastrousas the implementation was lagging behind.

30. Thereafter, it was noticed that on various aspects follow up is required as mentioned hereunder :-

31. The main conditions that the Ministry of Environment fixes at the time of granting clearance to the Tehri Dam project is tocomply with the conditions attached to the following aspects:

1. Catchment Area Treatment

2. Command Area Development

3. Flora and Fauna

4. Water Quality Maintenance

5. Bhagirathi Basin Management Authority

6. Disaster Management

7. Rehabilitation

32. On 17/9/1996, the Government of India, on demand for further examination of certain rehabilitation and environmental issuesrelating to the Tehri Project, appointed a Committee headed by Prof. C H Hanumantha Rao. This Committee basically looked into theRehabilitation Policy, its implementation and the implementation of various conditions for environmental clearance. Later,Hanumantha Rao Committee submitted it Report (hereinafter, HRC Report) in October 1997. Government of India accepted certainvital suggestions in the HRC Report. The petitioners allege that even the HRC Report, as accepted by the Government, was notcomplied with. They argued, based on the clearance certificate that the conditions have to be carried out pan passu with theengineering works. And prayed that the impoundment shall not be allowed till its compliance.

33. The respondents deny this contention and submit that the environmental plans connected with the project are to beimplemented pari-passu with the implementation of engineering works and submit that various actions have already been initiated inthis regard.

34. On the question of Catchment Area Treatment, it is contended that the Remote Sensing Application Centre, U.P. made a reportidentifying the critically degraded areas conforming to the vary high and high erodability classification has been received andsubmitted to MoEF. Adequate financial provisions have been made as per requirements depending on the availability of the fundswith THDC for the proposed treatment and at the time of filing of the first of the counter affidavits as late as in July 1992, 17,700hectares have already been treated.

35. Rehabilitation programme has also been taken up in consultation with the local representatives of the affected population andthe Administrative Staff College of India, Hyderabad. Similar rehabilitation package as that for Tehri is proposed for families affectedby Koteshwar Dam as well as for those living on the rim of the reservoir. The Government of UP. had indicated to the MoEF thatImplementation of plans is going on and considerable work has already been completed in this area. Studies had been conducted bythe Botanical Survey of India and Zoological Survey of India regarding flora and fauna and action plans were under preparation.



the Botanical Survey of India and Zoological Survey of India regarding flora and fauna and action plans were under preparation.Water Quality Maintenance was being modelled on a report to be made by the Roorkee University and it was assured that WaterQuality Monitoring Station at appropriate time during the construction will be set up. A disaster management plan has beensubmitted by the THDC to the Government of India. On 23.3.1990, by issuance of a notification, the Government of U.P. has set upthe Bhagirathi River Valley Authority. Therefore, it is contended that formulations of environmental action plans and theirimplementation is being carried out pari-passu with the construction of engineering works. While 10% of expenditure over theestimated cost had been incurred on the project works, the corresponding expenditure incurred on rehabilitation works and theenvironmental measures was 41% and 52% of the estimated cost respectively as in March 1992. It is, therefore, contended that theconditional clearance given to the respondents has not lapsed. Even the Government proceeded on the basis that the project wasstill a going project and therefore, appointed two expert committees even as late as in 1996 to examine -one on the safety aspectand the other on environment and rehabilitation aspects.

36. As late as on 14.3.2002 an affidavit has been filed on behalf of the Government of India. It is pointed out therein that the MoEFwhile according environmental clearance to the Project had laid down certain conditions in their letter dated July 19, 1990. Theseconditions had, inter alia, enumerated certain studies which were to be carried out and based on their findings, action pans had tobe drawn up for execution pari-passu with the construction of the project, it is also pointed out that all the required studies hadbeen completed and their reports submitted to the MoEF and these studies indicated that no environmental damage would becaused by the construction of the project which cannot be remedied by adoption of appropriate measures and for this purpose,action plans wherever called for have been and are being formulated for environmental upgradation. It is further pointed out thatimplementation of the project and the action being taken in regard to environmental concerns at the cost of the project would leadto improvement in the existing environment/ecology of this region. HRC was constituted to examine the implementation of variousconditions of environmental clearance except that relating to safety aspects and design of the Tehri Dam and suggest additional orimproved environmental safeguards, if any, based on data and information now available. HRC, after examining various documentsand discussions with experts, officials and local people, and visiting the project site, submergence area and catchment areassubmitted its recommendations to the Government. After detailed deliberation, the Government of India conveyed its decisions onthe implementation of recommendations of HRC on environment and rehabilitation aspects of the Project on 9.12.1998.

37. In this context it is necessary to go into the details of the compliance of each condition. The aforementioned first fiveconditions are directly connected with the protection of environment vis-a-vis sustainable development. The last two conditions(Disaster Management and Rehabilitation) are due to slightly different reasons. We will deal with it separately.

38. The main controversy in this case is regarding the pari passu compliance of the conditions in the clearance certificate. Beforegoing into any detailed evaluation of these aspects the term 'pari passu' needs to be explained. The lexical meaning of the Latinword pan passu is - at an equal rate or pace, with simultaneous progress, proportionately etc. This term is generally used in thecontext of creditors who, in marshalling assets, are entitled to receive out of the some fund without any precedence over eachother. Any way, the required application of its meaning in the background of the present case is clear. The works, which are fixedup as conditions attached to the clearance, will have to be carried out simultaneously with the engineering works. So by the timethe engineering works finishes, the conditions should also have been fulfilled.

Environmental Conditions

Catchment Area Treatment :

39. Catchment Area is that area from which water is directly or indirectly flow into the river, stream etc. Total catchment area ofthe Tehri Project is 6921.25-sq. km. This area is divided into 16 sub-watersheds and 149 micro watersheds, Of which, 3557.99-sqkm are estimated to be snow bound, rocky, precipitous, alpine blanks or within the submergence area. Main purposes of catchmentarea treatment are to regulate the flow of water, prevention of soil erosion, to minimize the negative impact of the project itself on

the catchment and to protect and regenerate vegetation in the catchment area and the water resources.

40. Upon the acceptance of HRC Report, the Union Government entrusts the responsibility of treatment of degraded areas of 'high'and 'very high' erodability to the THDC. At the same time the State Government has to formulate separate plans for the treatmentof 'medium' and 'low' categories of erosion. On principle the Union accepts to treat the entire degraded catchment of all categories.The treatment of entire catchment of high and very high erodability classification has to be completed pari passu with theconstruction of the project. It is submitted on behalf of the Respondents that an area of 37589 ha.- has been treated till December2001 and soil conservation measures are being implemented as part of treatment program for upgrading the environment of theentire region. The treatment of the remaining area i.e.; 3670.60 ha, is proposed to be completed by September 2003.

41. On the question of Catchment Area Treatment, it is stated that treating degraded areas in the Bhagirathi catchment startedeven as early as in 1970. The area coverage under CAT since the inception of the project was 22000 hectares which does notinclude the areas covered under CAT prior to inception of the project. As per the order of the Government accepting therecommendations of the HRC is that the project authorities should strive to complete as far as possible the treatment of the entirecatchment of high and very high erodability classification pari-passu with the construction of the project so as to be completedbefore commissioning of the project and it would be ensured that all direct draining areas of high and very high erodability must becompleted before the ensuing monsoons and the present status of the coverage under this category is as follows :

identified high and very high erodability area - �� 52,204 ha

Completion of CAT carried out till date�� - �� 40,486.4 ha

Balance area to be treated under CAT�� -�� 11,717.6ha

balance area in Direct Draining [under forest] - �� 3,670.6 ha

42. The target for the area remaining to be treated as per the CAT in high and very high erodability area will be achieved bySeptember 2003 and with the completion of the remaining area treatment of the catchment under Direct Draining will be completed.As regards low and medium erodability category actions have been initiated by the Government of U.P. and an action plan has beenformulated for treating such areas out of 10,000 hectares of forest area and 3,500 hectares of non-forest area. This would be inaddition to 52,204 hectares as per the 1998 CAT plan. The project authorities have completed compensatory afforestation on 4516hectares non-forest land in the Districts of Jhansi and Lalitpur and the Government of Uttaranchal has proposed to treat the saidareas by taking up the catchment areas under densification, fuel wood plantation and restoration of degraded forests.

43. The present status in this regard is that the Catchment Area Treatment was under implementation by the State Forest



Department in the catchment of high and very high erodability classification based on the earlier CAT plan formulated by the StateForest Department under which an area of 22,746 hectares was treated upto March 1994. Subsequently, it was decided to treatonly the direct draining catchment of high and very high erosion class based on the satellite images. Accordingly, a CAT Plan, 1994was formulated and submitted to MoEF for treatment of an additional catchment area of 13500 hectares in addition to area earliertreated, i.e., a total area of [22746+13500] equivalent to 36246 hectares. MoEF, however, directed in July 1998 that 52204hectares of high and very high erosion classification, in the entire catchment, was to be treated at the cost of Tehri Project. Thisrequirement was incorporated by the Government in its decisions on the HRC recommendations. As decided by the Government, theproject is now doing CAT in the entire degraded catchment in area of high and very high erosion class after excluding the areasalready treated. An area of 37591.4 hectares has already been treated till December 2001. The soil conservation measures are beingimplemented as part of the CAT Programme for upgrading the environment of the region. The remaining area is proposed to betreated by 2002-2003. The CAT Programme is presently being implemented by the Government of Uttaranchal.

Command Area Development :

44. Command Area Development primarily alms to avert the problems of water logging and emergence of salinity. This is veryimportant in maintaining the environmental balance. Union government fixes the responsibility on the State of UP to finalize thecommand area plan and to furnish the same to the Union Ministry of Power for onward submission of the same to the Ministry ofEnvironment and Forests. Quoting the affidavit filed by the State of Uttaranchal that "...the Government of UP submitted CommandArea Development Plan (CADP) which was formulated by the Ministry of Power was forwarded to MoE in July 1838, The MoE desiredCADP be revised by GOUP incorporating information on cropping pattern and ground water. The revised CADP, is in process byGovernment of UP..."

45. The Command Area Development Plan was submitted by the Government of U.P. to MoEF in July 1998 and the modification of thePlan was suggested by MoEF is under process. It is submitted that the existing canal networks will be utilised to irrigate extendedcultivable command are of 2.7 lac hectares and stabilize existing irrigation in 6.04 lac hectares.

Flora and Fauna :

46. HRC Report points out the scantiness in the studies carried out by Botanical Survey of India (BSI) and Zoological Survey of India(ZSI) on the impact of Tehri project on flora, fauna and biodiversity. Based on the HRC Report, the Government of India has decidedto conduct further studies on flora and fauna of Project region extending to two annual cycles. It also decides to carry outappropriate remedial measures based on the outcome of the studies. Another decision was regarding the carrying out of action planto protect the Mahaseer fish. It is resolved by the Government to carry out other pre-impoundment studies and to takeconsequential supplementary measures. Finally they agreed to conduct another study on the impact of impoundment on the floraand fauna in the post-impoundment period.

47. In regard to flora and fauna, the study conducted by various agencies has brought out that no rare species come undersubmergence of the reservoir and that there is no adverse impact on the fauna of the dam except in case of Mahseer Fish. Studyreports by BSI and ZSI were submitted to the MoEF along with plans for protection/propagation of Mahseer Fish recommended bythe ZSI and BSI had also recommended certain species to be planted which is being done by the State Forest Department as a partof CAT Programme. Action plan for preservation of Mahseer has been entrusted by THDC for implementation to the National ResearchCentre on Cold Water Fisheries, Bhimtal. A Botanical Garden in an area of 14.28 hectares is also under implementation by theUttaranchal State Forest Department near the reservoir and about 50% of its work is completed. It is also submitted that the sitedevelopment work is completed and induced artificial breeding work will be completed by March 2004.

Water Quality Maintenance :

48. At the threshold itself HRC observed that it is not in a position to go into the correctness of the scientific conclusions of variousbodies on the maintenance of water quality. Nevertheless they expressed certain opinion regarding the general maintenance ofwater quality. Central Government decides to follow the advice of Central Water Commission pertaining to the effect of water qualitydue to impoundment. They also submitted that the THDC is asked to formulate action plan to set-up water quality monitoringstations and to study the impact on quality of water downstream, aspects of mineral contamination etc and to take appropriatesteps.

49. As regards the water quality monitoring, a report was submitted by the University of Roorkee and its report established thatwater quality of reservoir shall not be harmful for aquatic life or other downstream water uses. Proposal for suiting up of waterquality monitoring stations as initiated by THDC with the Central Water Commission under the Ministry of Water Resources, CWC hasmade a revised proposal based on certain parameters recommended by the Central Pollution Control Board. Based on this, THDC inassociation with CWC would be setting up monitoring stations, the work on which shall be completed before the impoundment ofreservoir.

Bhagirathi Basin Management Authority :

50. MoE decides to link the clearance of the Tehri project with development of Bhagirathi Basin. This is aimed in the larger interestof protecting the environment of the entire region. Development of Bhagirathi Basin therefore is very important in the context of thiscase.

51. The Government of U.P. had constituted the authority initially by an executive order, Bhagirathi River Valley Authority.Subsequently, Bhagirathi Basin Management Authority has been constituted on a statutory basis by a notification issued on24.3.1999. Plan for greenbelt development along the rim of reservoir of the reservoir to prevent soil erosion and flow of silt has beenprepaid. For monitoring the implementation of these aspects, an institutional mechanism has been created. The Regional Office ofMoEF is set up in the States of U.P. and Uttaranchal and the same is monitoring all developmental projects including the projects atTehri. The status of compliance of forest clearance issued in 1937 and 1997 has been monitored and the status of compliance ofenvironment conditions was monitored in 2001 and 2003. Points of non-compliance as and when noticed have been taken up fornecessary corrective action.

Impact on Human Health :

52. Large quantities of static water provide fertile breeding ground for diseases carrying vectors. River valley projects have beencited as a cause to the spread of many epidemics. Considering the fact that reservoir of the Tehri project is below 1000-m altitude,the chances of vector breeding are very high. Earlier the Bhumbla committee raised this issue pertaining to Tehri dam in 1990. Butthis was not figured in the clearance given to the Project by the MoEF. HRC Report pointed out this aspect and made the



this was not figured in the clearance given to the Project by the MoEF. HRC Report pointed out this aspect and made therecommendation to undertake a comprehensive study of the potential health impacts of the Tehri dam reservoir, reservoir of thedownstream dam and the irrigation canals and mandated to get the plan approved by the Ministry of Health, Government of India, Italso recommended to its quick implementation. The Government accepted this reference in the HRC Report. Apart from thisacceptance, the petitioners allege that no works have been carried out.

53. Right to health is a fundamental right under Article 21, Protection of this is inextricably linked with the clean environment. Cleanand healthy environment itself is a fundamental right. This position was reiterated by this Court in M.C. Metha v. Union of India(2001) 3 SCC 756. Therefore the impact of the Project on Human Health cannot be given a go by, it has to be seriously scrutinized.

54. All the above-discussed aspects aimed at maintaining the ecological balance and protecting human rights are integral elementsof sustainable development. Rupture to the Himalayan environment, if any, due to the dam construction could only be compensatedby strictly complying with these conditions attached to the clearance. These aspects are vital for life and sustainable developmentof the area. If these aspects are not complied with, the human life and whole Himalayan environment will be the casualty. Only itsstrict compliance could maintain the ecological balance.

Disaster Management :

55. Disaster Management means all aspects of planning, coordinating and implementing all measures which are necessary or desirableto prevent, minimize, overcome or to stop the spread of a disaster upon the people or any property and includes all stages of rescueand immediate relief. It is a proven fact that lot of human suffering and misery from large number of disasters can be mitigated bytaking timely actions, planning and preventive measures. It is possible only through well functioning disaster management framework.This will enable us to minimize, control and limit the effects of disaster and will streamline the disaster management exercises. Ourpresent relief centered re-active approach after the striking of disaster need to be changed into preparedness oriented pro-activeattitude. This is the aim of pre-disaster preparations. Disaster Management Plans has to play an integral role in this exercise. Theyare blue prints for the management of disasters. The Disaster Management Plans should contain the aspects of disaster preventionand of ways for its management in the untoward occurrence of a disaster. A proper plan will place the disaster management exerciseon a more firm foundation.

56. It is a welcome gesture that the Clearance to this Project contains a condition for chalking out disaster management plan.Disaster Management activities should be integrated with the developmental activities. Incidentally, this is also the resolve of theYokohama Strategy of the United Nations International Decade of Natural Disaster Reduction, to which India is a party. There is anaffirmative obligation on the part of the State to preserve and protect human life and property. This obligation is an integral elementin fulfilling developmental endeavors. Therefore, disaster management cannot be separated from sustainable development.

57. The respondents submit that the Ministry of Agriculture has approved the Disaster Management Plan prepared by the THDC. Andadded that they are going to dovetail disaster management plan of the state government at the District level into the plan preparedby THDC. As regards the disaster management, the nodal agency is the Ministry of Agriculture and disaster management plan wasapproved by the said Ministry in 1992 and a steering group has been constituted by the Government in every district under thechairmanship of district magistrate for flood fighting and related activities and the Steering group will implement the disastermanagement plan in case of any eventuality from the dam. The Government of Uttaranchal has also constituted a Steering groupunder the Chairmanship of the Principal Secretary [Irrigation and Energy], to meet any emergency situation due to the dam. Buteffectiveness of all these exercises is in the proper carrying out of management activities.

Rehabilitation

58. The construction of Tehri and Koteshwar dams will result in the formation of two lakes having a spread of 42 sq. kms and 2.65sq. kms respectively at full reservoir levels. The Tehri dam will submerge Tehri town and 22 villages, Another 74 villages will bepartially affected. A major potion will get affected in the first phase with the construction of the Cofferdam and the remaining byfinal impoundment. In addition 2 villages fully and 14 villages partially will be affected by the Koteshwar dam. By the construction orNew Tehri Town, project works and colony construction will affect another 13 villages. In total, Tehri power project will affect 37villages fully, 88 villages partially and the Tehri town. Rehabilitation of these much-affected people is the main issue before us.

59. Rehabilitation is not only about providing just food, clothes or shelter. It is also about extending support to rebuild livelihood byensuring necessary amenities of life. Rehabilitation of the oustees is a logical corollary of Article 21. The oustees should be in abetter position to lead a decent life and earn livelihood in the rehabilitated locations. Thus observed this Court in Narmada BachaoAndolan's case (supra). The overarching projected benefits from the dam should not be counted as an alibi to deprive thefundamental rights of oustees. They should be rehabilitated as soon as they are uprooted. And none of them should be allowed towait for rehabilitation. Rehabilitation should take place before six months of submergence. Such a time limit was fixed by this Court inB D Sharma v. Union of India (1992 Supp (3) SCC 93) and this was reiterated in Narmada. This prior rehabilitation will create a senseof confidence among the oustees and they will be in better position to start their life by acclimatizing themselves with the newenvironment.

60. The rehabilitation package is prepared. If is also made clear that the rehabilitation conditions in this case are also applicable tothe oustees of Koteshwar dam as well as those living on the rim of the reservoir and to all those who are likely to be affected by theproject. The concerned authorities will have to take proper steps to rehabilitate all those who are entitled for rehabilitation beforesix months of the impoundment. Without the completion of rehabilitation there shall not be any impoundment.

61. According to the affidavit filed by M.L. Sharma, Under Secretary, Ministry of Power, on behalf of the Union of India, reported onthe status of the follow-up action on the recommendations of the two expert committees constituted by the Government of India onenvironment and rehabilitation aspects of the project and that the recommendations made by the HRC were considered by theCentral Government in consultation with the Government of U.P. and it was decided to implement those recommendations as per thedecisions indicated against each of the recommendation annexed to the Office Memorandum dated December 3, 1998, It is alsomade clear that the expenditure shall be shared by the Government of India and the Government of U.P. in the ratio of 60:40 and itwas also decided that the Government of U.P. shall take over the direct responsibility for the entire rehabilitation task to be handleddirectly by its officers under the overall supervision and control of the Commissioner, Garhwal Division for which the StateGovernment shall issue appropriate orders accordingly. Recommendations of the HRC, as accepted by the Government, have beenproduced before us.

62. It is contended on behalf of the Government that though developmental programme are intended to benefit the citizens of thecountry but when displacement is on large scale it is the moral duty of the State to ensure that those who are being displaced areproperly looked after. This Court in Narmada Bachao Andolan's ease (supra) noticed that displacement of people living on theproposed project sites and the areas to be submerged is an important issue and a properly drafted relief and rehabilitation plan



would improve the living standards of displaced persons after displacement. When clearances are given, conditions regardingpreservation, conservation and rehabilitation are imposed and those conditions will have to be fulfilled by the authorities concernedto implement the project.

63. When the Government in their concern in this regard had constituted HRC and HRC had made various recommendations, some ofwhich have been accepted, as adverted to earlier, certain grievances are set up in an affidavit filed on behalf of the petitioners on4.9.1999 before this Court and our findings upon those grievances are as follows :

1. That HRC gives only 2 acres of land to each displaced family is not satisfactory. In case of Sardar Sarovar Project in Gujarat, it iscontended that each family is getting 2 hectares of land as a minimum and there is no logic for discriminating against the projectaffected persons of the Tehri Project and such discrimination violates their fundamental rights under the Constitution to be treatedas equal under the law. We do not think that it would be appropriate to hold that the extent of land recommended by HRC isinadequate or insufficient. Such recommendation has been made by HRC after due deliberation in the matter on the availability ofthe land in the region, the life style of the persons affected, their needs and other relevant factors in this regard. Above all, theproject is being carried out in a hilly area where land is very scarce. In such circumstances, we do not think any comparison can bedrawn between Sardar Sarovar Project and Tehri Project. Hence we reject this contention raised on behalf of the petitioners.

2. Next recommendation in respect of which objection is raised is that the Government of India has chosen to treat as separatefamilies sons and unmarried daughters who have attained the age of 21 years on the prescribed date, it is urged that 18 yearsshould have been taken as the age for such classification and not 21 years. These matters are in the realm of decision of therecommendatory body and the Government. If the Government had chosen any other age, we could not have held it to be Irrational.The contention that voting rights to citizens had been given even at the age of 18 years has no relevance to the facts underconsideration. Therefore, this contention also does not deserve our intervention.

3. The next objection is raised in regard to major sons and unmarried daughters not being given land but only cash and is notacceptable as the same results in discrimination particularly once they have been recognised as separate families and suchdiscrimination would be violative of their fundamental rights under the Constitution and it is contended that all major married sonsshould be given 2 hectares of land as a minimum and all the other benefits due to them as a displaced family under the package andthey can be given the option of taking cash, equivalent to the value of 2 hectares of land in lieu of the land, if they so desire. Thisargument also cannot be accepted because as stated earlier on account of scarcity of land it may not be feasible to provide land toevery family and even such families as have been treated for purposes of giving larger benefit major sons and unmarried daughtersare treated as a separate family and not for any other purposes. Similarly other contention that the unmarried sons and daughtersshould be treated as a half a family unit and should be given half hectare of land or cash in lieu thereof, cannot be accepted.

4. The contention now put forth is that the lands have not been acquired as yet for the purpose of rehabilitation and the affectedpopulation is not rehabilitated as yet and until they are relocated together no further progress of the work should be allowed and itis further contended that if the families are displaced for the project these affected persons should be rehabilitated keeping in viewthe policy, package and procedure applicable to the Tehri project

64. In regard to the cases where families have already been shifted and where rehabilitation has already been done, HRCrecommended that only cash amount awarded to be paid instead of land and the cash option is recommended considering lack ofland available for rehabilitation. Major married sons receive Rs. 1,50,000/- and the major unmarried sons and major unmarrieddaughters receive Rs. 75,000/- each. The Government accepted this recommendation subject to the condition that all additionalliving eligible family members of fully affected families as on 19.7.1990 [excluding those who are given land for cultivation] includingfamilies already shifted in the past to the resettlement colonies from their earlier settlements would be eligible to receive payment ofan ex-gratia amount equivalent to 750 times the minimum agricultural wage which at current rates is Rs. 33,000/- per person. These

are matters of policy and when the Government takes such a decision bearing in mind several aspects, we do not think this Courtshould interfere with the same.

65. In cases where families have not been shifted or given rehabilitation benefits for newly recognised additional families, HRCrecommended that only cash be paid instead of land for same reasons and also recommended a residential plot be given measuring200 sq.mt. in a rural rehabilitation centre or cost will be given to each major married son. The existing scheme for grant of interestsubsidy on loan for construction of house is recommended. The Government accepted the same and stated that it shall be theresponsibility of the State Administration based on the census, voters' lists, and If necessary, separate house to house survey maybe conducted and that additional family members of the landless agricultural labourers as on 19.7.1990 would also be eligible toreceive the recommended ex-gratia amount as for the fully affected land owner families. The identification of agricultural landlesslabourers and their additional family members shall be decided by State Administration. The recommendation for allotting 200 sq.m.residential land or cash in "lieu thereof, to each married son of the rural land owner family was not accepted by the Government, Itis contended on behalf of the petitioners that HRC's recommendations should be accepted by the Government but the Governmenthas formulated another scheme instead of what is recommended by HRC and have suggested payment of ex-gratia amount in thesame manner as is given in respect of the affected families and, therefore, no exception can be taken to the decision of theGovernment.

66. The villages were identified by HRC as fully affected where 75% or more families are fully affected. HRC recommended that in thepartially affected villages [where less than 75% families are fully affected], the fully affected families will have the option ofresettling else where with rehabilitation provisions or remain in the unaffected part of the village. The families that remain there willbe allotted land on pattas from the left over surplus land. The Government accepted the recommendations as to the categorisationof the fully and partially affected families and also stated that they would be entitled to rehabilitation benefits as admissible in theexisting policy and all additional family members of those families would also be entitled to receive ex-gratia payment of Rs.33,000/-. It is contended on behalf of the petitioners that HRC recommendation should have been fully accepted by theGovernment. It was made clear by the Government that the partially affected families that remain in these villages shall be entitledto be allotted submerged land on pattas subject to availability during the low reservoir level periods for temporary cultivationadmissible under the existing policy. It is contended on behalf of the petitioners that the practice of allowing cultivation insubmerged land during low reservoir level periods leads, to enhanced siltation of reservoir and, therefore, should be discouraged. Theview taken by the Government is that even after accepting the recommendations made by HRC a condition is imposed that duringthe low reservoir level periods, land should be given for temporary cultivation not otherwise. Therefore, it cannot be said that such acondition is unreasonable.

67. The next objection raised by the petitioners is in regard to the house construction assistance to each married son and majorunmarried sons and major unmarried daughters @ Rs. 60,000/- and payment of this amount is linked with the progress ofconstruction and shifting. The Government did not accept the same and ordered that the additional members of urban entitled houseowner families of Tehri Town as on cut-off-date of 6.6.1985 would also be eligible to draw ex-gratia of Rs. 33,000/-, which, it is



owner families of Tehri Town as on cut-off-date of 6.6.1985 would also be eligible to draw ex-gratia of Rs. 33,000/-, which, it isstated, has been subsequently enhanced. For similar reasons stated earlier, objections raised on behalf of the petitioners standrejected.

68. As regards the rehabilitation programme, the status is that socio-economic study concerning the living standard of resettledfamilies was got done through the Administrative Staff College of India. Hyderbad, which revealed that the quality of life of theresettled families is far above and better than what was the situation before rehabilitation. A well defined R&R Policy and Packagehas been formulated by the Government of U.P. and THDC for Tehri Project affected families which has been improved from time totime to take care of changing requirements. The rehabilitation of affected families of the project is now being handled by theGovernment of Uttaranchal. As a part of Phase II programme covering about 2500 fully affected rural families to be affected familiesdue to reservoir impoundment, additional land has been identified and is being provided and acquired in Hardwar and DehradunDistricts. Approval of 275.20 hectares of land at Pashulok and 1083 hectares of land at Pathari Block, on lease basis, has beenaccorded by the Government for resettlement of the remaining fully affected rural families. In addition, proposal for acquisition ofabout 900 acres of land in District Hardwar and Dehradun is being processed. The State Government proposes to completerehabilitation by June 2003.

69. The present status of the urban rehabilitation programme covers Tehri Town involving a total of 5291 families falling within thecut-off date of 6th June, 1955. The rehabilitation package available for them is as follows:

(i) "Under Urban resettlement programme, affected families are being rehabilitated at the New Tehri Town [NTT] or at Rishikesh andDehradun, as per their option. Apart from compensation for their existing/shops and other structures at the Old Tehru Town,land/house owner oustees are provided with plots at a nominal cost for building their houses. The tenants at the old Tehri Town arebeing given built-up flats, on payment on subsidised terms.

(ii) For the urban shop-keepers, shops have been constructed at NTT, Rishikesh and Dehradun.

(iii) The details of the Urban Rehabilitation Package are given in the rehabilitation policy booklet enclosed hereto as Annexure IV."

70. As regards the rural rehabilitation, the policy is :

1. Rural oustees to be compensated through allotment of agricultural land or cash in lieu thereof.

2. The rural oustees should be settled in large blocks so that the fabric of their social life remains intact.

3. Oustees or their representatives be involved to the extent possible in selecting the rehabilitation centres.

4. To the extent possible, consideration be given to the preference of the oustees for settlement at a particular center.

5. Community facilities be provided at each of the rural rehabilitation centers at the cost of the project even if these did not exist attheir earlier settlements.

71. It is further pointed out that package has been further improved from time to time without changing its basic features and thedetails of the rehabilitation are set out in Annexure V. Various facilities provided are set out in Annexure VI. The progress of the ruralrehabilitation is as follows :

*ln addition to these fully affected families, 3810 families are partially affected who are not to be relocated but are to be paid cashcompensation for their part-land coming under submergence. Besides, they would be provided all other benefits as laid down in thePolicy for them.

**The figures are based on the survey conducted by Rehabilitation Directorate, Government of Uttaranchal in 2001

Add 5% Extra (for landless persons + increase families since last survey): 121

BALANCE FAMILIES OF TEHRI DAM FOR RESETTLEMENT : 2543

Note : i) Above details are based on survey conducted in the year 2001.

ii) *3810 families are partially affected families, which are not to be shifted."

A socio-economic study of the families rehabilitated was conducted by the Administrative Staff College of India, Hyderbad in March1993. Similarly, the Estimates Committee of U.P.Legislature has also visited some of the resettlement colonies in 1989 and an extractfrom their report reads as follows :

"The Committee during its visit inspected the resettlement colonies at Bhaniawala, Raiwala and Pathri Block The Committee foundthat the facilities provided in these colonies are better than any village in the country. There are well laid roads. There is provisionfor street lighting. Provisions for Irrigation and Drinking water are available. Efforts have been made to provide the facilities ofHospitals and Schools."

72. There have been several further improvements in the rehabilitation package for the Project affected families. House constructionassistance for Old Tehri land owners was Increased from the minimum of Rs. 60,000/- to Rs. 1,25,000/- without any deduction ofpreviously paid compensation which corresponding increase in other stabs. Thus, the amount of house construction assistanceadmissible to urban house/land owner families as under:



1. Tenants to be provided constructed flat at lower rate of pre-1989 cost I.e., @ Rs. 1819/- per sq.m. in place of Rs. 3771/- persq.m. The hire purchase scheme, therefore, as mentioned in the rehabilitation policy has been withdrawn. 2. The shop keepers of oldTehri town to be provided shops in NTT/Dehradun/Rishikesh at pre-1989 cost i.e., @ Rs.1440/- per sq.m. in place of Rs.3707/- persq.m.

3. The Government of Uttaranchal have on 7.7.2001 allowed to the shopkeepers of Old Tehri Town a goodwill grant varying from Rs.1 to 3 lacs on handing over the possession of their shops. 620 shopkeepers have been paid this amount upto 31.10.2001.

4. The Government of Uttaranchal have also allowed 48 nos. of advocates who were practicing before year 1985 to receive a grantof Rs. 1.50 lacs each, distribution of which is under process.

73. Further proposals have also been made for changes in the conditions of eligibility for allotment of 2 acres of land for such ofthose persons who had sold their holding to meet emergent needs before the issue of Section 4(1) notification under the LandAcquisition Act, grant of house construction allowance to rural families, increase in the amount of cash grants for purchase of seedsand fertilizers, and increase in the amount of cash in lieu of land allotment to Rs. 5 lacs as against the existing limit of Rs. 2 lacs.Proposals had since been discussed with the Government of India in inter-ministerial meeting held on 14.12.2001. Furtherdevelopmental activities are also to be carried out including construction of bridges and roads, establishment of degree andintermediate colleges In rural areas, an ITI, upgradation and setting up of hospital/medical facilities, improvement of electricity linesand sub-station, etc. The Government further gives the details of the land available and the proposed number of families forresettlement. For grievance redressal certain camps had been organised by the Director, Rehabilitation approved by the Governmentand a grievance redressal cell is functioning in the Rehabilitation Directorate, Uttaranchal Government. Coordination Committee underthe Chairmanship of the Commissioner, Garhwal and Co-chairmanship of the CMD, THDC and having Government officials and publicrepresentatives as its members, monitors the progress and coordinates between different departments about the progress of workand redresses the difficulties experienced by different departments and partially affected families and give its decision/directions.The Government has also set out details on the Project Works to which reference at this stage may not be necessary.

74. On the question of resettlement and rehabilitation, the first phase covering those affected due to construction of coffer damand closure of diversion tunnels T3/T4 Is complete and in the second phase, all remaining families to be affected due toimpoundment of reservoir would be rehabilitated. Details of the same are set out as under:

"Urban Total Affected Families:

5291 [100% families have been compensated in the form of houses, plots and shops except affected families from Koteshwar dam]

Gramin Total Affected Families:

9239 [Compensation paid - 7291 compensation yet to be paid -1948]."

75. It is no doubt true that in regard to certain aspects such as Catchment Area Treatment, conditions imposed are not fullyimplemented and it is not very clear from various affidavits filed whether in regard flora and fauna also the, conditions have beenfulfilled or not. When pari-passu conditions have been imposed, it is necessary that the conditions are fulfilled along with theconstruction of the engineering works. In refuting the contention of the petitioners that impoundment in the reservoir has been donebefore the pari-passu implementation of environment and forest conditional clearances, it is stated as follows:

"Diversion tunnels on the right bank, T3/T4 have been closed in December 2001 for taking up construction of stilling basin and shaftspillway. The reduced levels of T3 and T4 tunnels are 606 M and 609 M respectively. Diversion tunnels on the left bank, T1/T2 havebeen kept open for discharging the water downstream. The reduced level of both T1 and T2 is the same viz., 632 M. The currentquantity of discharge remains unabated from the discharge prior to the start of project construction. There is noalteration/reduction in quantity of water discharged from the river prior to taking up the project and as of now. -The maximumdischarge in the river observed during floods in the year 1978, that is 3669 cumecs.

Impoundment in the reservoir is generally done for the purpose of deriving benefits from the storage by creating facility for irrigation,drinking water supply, power generation etc. As a matter of fact, none of the benefits are presently accruing from the project atthe current stage. Diversion tunnels T3/T4 have been closed for taking up construction of stilling basin before they are permanentlyclosed."

76. It is submitted on behalf of the respondents that the initial impoundment in the reservoir will start with the closure of diversiontunnels T1/T2 and water level rising to EL 700 M. The maximum draw down level is EL 740 M, The reservoir spread at EL 700 M willbe 10 sq. km. Compared to full reservoir spread at 830 M of 44 sq.km. The present water spread of reservoir at EL 632 M is 1.2sq.km. only. It is also made clear on behalf of the respondents that this implied that commensurate safeguards in the works relatedto Catchment Area Treatment, Command Area Development, Rehabilitation and resettlement, protection of flora and fauna, disastermanagement plan, etc. are ensured along with the progress of the construction works and it was also implied that the completion ofproject meant rise in water level in the reservoir and simultaneously increase in the water spread.

77. It is made clear that the condition of pari-passu implementation of conditions prior to the commissioning of the project shall beclosely monitored under the existing mechanism set up by MoEF and the project authorities will ensure that prior to closing of

diversion tunnels T1/T2 for Impoundment of the reservoir, evacuation, resettlement and rehabilitation are completed In all respects.In addition, the catchment area treatment of direct draining areas shall be completed and the project authority will obtain clearancefrom MoEF before closing the outlet at EL 700 M. An additional affidavit has also been filed on behalf of the Union of India to theeffect that a high level inter-ministerial review committee Would be constituted consisting of Secretaries of all the concernedMinistries of the Central Government to examine various aspects and closely monitoring of the same. It is only after the completionof these conditions, impoundment would start. This categorical statement made by the respondents should assure the petitionersthat no impoundment would be allowed until all the conditions in the Environmental Clearance Certificate of the Tehri Dam dated July19, 1990 are complied with and stand fulfilled.

78. The petitioners have disputed that the respondents have complied with the conditions of clearance. But a careful analysis oftheir pleadings will indicate the dispute is to the extent of compliance only and not that there is no compliance at all. On behalf ofthe Union of India, a status report supported by an affidavit is filed which indicates that there is substantial compliance with all theconditions. We have in detail discussed the various facts set out in the said affidavit and status in the earlier portion of this order.

79. In this background, we find that the petitioners have not established or is there any material to conclude that the Project workis being carried on without complying with the conditions of clearance. Though there were certain lapses at certain stages, they



is being carried on without complying with the conditions of clearance. Though there were certain lapses at certain stages, theywere taken care of by monitoring agencies.

80. To ensure that all the conditions for environmental clearance are fulfilled and for proper monitoring, we transfer all these casesto the High Court of Uttaranchal to be dealt with by a Division Bench. The High Court shall deal with these matters as if filed beforeit and shall be at liberty to pass any orders. However, it is made clear that it shall not be open to re-examine the matters such assafety of the dam and other aspects relating to implementation of conditions contained in the Government orders which have beendecided in this case. This course we are adopting following a line of cases in Indian Council For Enviro-Leqal Action v. Union ofIndia and Ors., 1996 (5) SCC 261: M.L. Sud & Ors. v. Union of India and Ors., 1882 Supp. (2) SCC 123, and Mohan Chand v.Union of India and Ors., 1995 Supp. (3) SCC 425, which were all cases filed under Article 32 of the Constitution and in one of thecases, which pertained to environmental issues, it was observed as follows :

"As far as this Court is concerned, being conscious of its constitutional obligation to protect the fundamental rights of the people, ithas issued directions in various types of cases relating to the protection of environment and preventing pollution. For effectiveorders to be passed, so as to ensure that there can be protection of environment along with development, it becomes necessary forthe court dealing with such issues to know about the local conditions. Such conditions in different parts of the country aresupposed to be better known to the High Courts. The High Courts would be in a better position to ascertain facts and to ensure andexamine the implementation of the anti-pollution laws where the allegations relate to the spreading of pollution or non-compliance ofother legal provisions leading to the infringement of the anti-pollution laws. For a more effective control and monitoring of suchtaws, the High Courts have to shoulder greater responsibilities in tackling such issues which arise or pertain to the geographicalareas within their respective States. Even in cases which have ramifications ail over India, where general directions are issued bythis Court, more effective implementation of the same can, in a number of cases, be effected, if the High Courts concerned assumethe responsibility of seeing to the enforcement of the laws and examine the complaints, mostly made by the local inhabitants, aboutthe infringement of the laws and spreading of pollution or degradation of ecology."

(See : Indian Council For Enviro-Leqal Action's case (supra), at p. 301)

81. Proceedings arising under Article 32 need not always be dealt with by this Court alone and in appropriate cases suitabledirections, including transfer of the matter, can be issued to High Courts or other authorities (Like, National Human RightsCommission) to deal with such matters. Thus, we find that it is legal and expedient to transfer these cases to the High Court ofUttaranchal.

82. Accordingly, with these directions, this petition shall stand disposed of.

T.C. (C) NO. 50/1996. T.C. (C) NO. 51/1996. T.C. (C) NO. 52/1996. T.C. (C) NO. 63/1996 :

83. In the light of the orders made in Writ Petition No. 295 OF 1992, these Transferred Cases shall stand disposed of in the sameterms as set forth above.

Dharmadhikari J.

84. Having carefully perused the opinion of learned Brother S. Rajendra Babu 3. I find myself unable to agree with him that nodirections to the respondents in this Writ Petition are required. In my considered opinion, looking to the dimensions and implicationsof the case on environment and human rights a monitoring mechanism is required to be set up and activated to ensure compliance ofthe conditions on which clearance was granted to the construction of a dam in Himalayan valley near Tehri, It may be legal but notefficacious to transfer this writ petition under Article 32 of the Constitution of India to the High Court of Uttaranchal for monitoring

the compliance of the conditions on which environmental clearance was given to the Tehri Dam Project. With utmost respect,therefore, I have considered it necessary to record my separate opinion with conclusions containing the directions which arerequired to be issued to the respondents in this writ petition.

85. Learned Brother S. Rajendra Babu J. has in detail given necessary facts and events leading to the filing of the writ petition. Iwould, therefore, confine myself to giving the necessary background on which my opinion and conclusions are based.

86. In this writ petition under Article 32 of the Constitution of India filed by the petitioners in public interest, directions are soughtto be issued to the respondents, representing the authorities and corporation of union and State Governments, to take necessarymeasures for protecting environment and human rights which are likely to be adversely affected by construction of Dam in the Valleyof Himalayas near Tehri town of the new State of Uttaranchal.

87. The rivers Bhagirathi and Bhilangana rise from glaciers in the Himalayas, part of Garhwal of erstwhile North-Western UP and nowpart of the new State of Uttranchal. The two rivers flow south to the plains to form confluence as the Holy river Ganga. Close tothe Garhwal town of Tehri at the confluence of two rivers Bhagirathi and Bhilangana more than three billion $ clay core rockfill dam isbeing constructed in the upper Ganga basin. The dam area will cover 45 kms. Bhagirathi valley and 25 kms. Bhilangana valley withwater spread over an area of 42.5 sq. kms. which will submerge nearly 100 villages including the town Tehri as many as 90,000families will be relocated as the result of the dam project. The Government of India and the State of Uttranchal claim that the damproject had undertaken to generate 2,400 mg.watt of electricity and will create irrigation facilities for 2,070 lakh hectares of land.There are plans also to create supply of 500 cusecs of water to New Delhi.

88. Human Rights and environment activists have approached this Court to protect the interest of general public and particularly thepeople living in Tehri town and in surrounding areas of Garhwal who are likely to be displaced for completion of the Project. Theyhave also raised issues of great importance such as the safety of the Dam and the likely devastation and loss of properties and livesof the people in the down stream, if the Dam, being situated in a highly earth quake prone area, bursts or leaks. It is stated thatstructurally the dam may be incapable of withstanding earthquake of above seven on Richter scale. It is submitted that greatdanger is posed to down stream cities and population particularly the holy Pilgrim centres like Haridwar and Rishikesh which are indanger lone. The structural flaws of the dam and rehabilitation policies provoked public agitation and international attention. TheDam Project was stopped which had begun in 1978.

89. A petition was filed in this Court by Tehri Bandh Virodhi Sangh Samiti in the year 1985 for intervention of the Court to stopconstruction of the Dam as it puts great threat to the safety and lives of the people living in surrounding villages and towns and alsoholy places down stream. The petition was dismissed by this court and the decision is reported in 1992 (suppl) 1 SCC 44. The Courtrelied on the technical data furnished toy the Government which had prepared the Plans for Tehri Dam Project and held that since allaspects of safely have been taken into account by Indian and foreign Experts, the Court has no ground before it to restrain theauthorities from proceeding ahead with the implementation of the Project.



90. In the year 1986, the Soviet Union agreed to fund the project with loan on concessional terms. As a part of the agreement withthe Government of India for funding the Project, the Soviet Experts conducted a review of the proposed Project and gave a findingthat the highest seismicity of the Tehri area had not been adequately taken into consideration by Indian planners, The combinedSoviet and Indian teams also found that the life of the Dam claimed to be 100 years may not be accurate and its life would be 62years or less. They also found that about 85,600 people would be displaced by the project.

91. At this stage, of hearing of the case, several developments which took place in the interregnum are required to be stated. As aresult of public agitation and protest from the people of Garhwal region to the Project for construction of Dam, in March 1960, thethen Prime Minister of India intervened and directed an in-depth review of the Project by an expert group constituted by theMinistry of science and Technology. The technical group submitted its report in 1335 and recommended abandonment of the Projectdespite expenditure already incurred in the sum of Rs. 2,006 crores. Environmental Appraisal Committee (EAC) which is a Expert Bodywithin the Ministry of Environment and Forests recorded a unanimous conclusion that Tehri Project did not merit environmentalclearance and should be dropped. The Tehri Project was thereafter revived only when USSR Government agreed to provide technicaland finance assistance. The Dam Project which was initially taken up by the Irrigation Committee of erstwhile State of Uttar Pradeshwas taken over by a joint venture company of Government of India and State Corporation viz., Tehri Hydel Development Corporation(respondent herein). The Corporation took over the construction of Dam in July 1988. The Corporation reformulated EnvironmentPolicy. It was In February 1990 that the EAC in the Ministry of Environment and Forests came to the conclusion that taking intoconsideration the risks and hazards involving ecological and social impact with huge cost and less benefits, the Dam Project doesnot merit environmental clearance. The exact words of the EAC are as under:-

"Therefore, taking into consideration the geological seismic setting, risks and hazards and ecological and social impact accompanyingthe Project, the costs benefits expected and after a careful examination of the information and data available, the Committee hascome to the unanimous conclusion that Tehri Dam Project, as proposed, should not be taken up as it does not merit environmentalclearance."

92. In normal course, the conclusion of the EAC should have closed the matter for abandoning the Project. Surprisingly, thecontinuance of the Project was entrusted to a Committee of Secretaries. The Committee re-assigned the task to the Department ofMines. The Department of Mines relied on the opinion of Prof. Jaikrishna who is an earthquake Engineer when Dr. V.K. Gaur who isseismologist had given a dissenting opinion and so also the foreign expert Dr. N. Brune.

93. It is after this re-appraisal of Project from safety point of view by the Department of Mines based on the expert opinion ofearthquake Engineer Prof. Jai Krishna, clearance was given on 19.7.1990 to the Project by the Ministry of Environment and Forests.Since by this time the Environment Protection Act 1986 with Environment Protection Rules framed thereunder had already come intoforce making it a statutory requirement to obtain clearance from the Environment Department for undertaking the Project of suchdimension affecting environment, ecology and human beings, only a conditional clearance was granted to the Project. The variousconditions subject to which the environmental clearance to the Project was granted have been reproduced in the opinion of learnedBrother 5. Rajendra Babu J.

94. The final condition stated thus :- If the completion of studies, formulation of Action Plan and their implementation to bescheduled in such, a way that their execution is pari passu with the engineering works is not adhered to, all engineeringworks of the Project should be stopped and this condition will be enforced under the Provisions of Environment ProtectionAct 1986.

95. The Ministry of Environment and Forests wrote a letter on 12.4.1991 expressing dis-satisfaction on failure to comply with theconditions on which environmental clearance was given. The respondent-Corporation was directed to submit comprehensiveEnvironmental Plan for effective implementation falling which remedial or prohibitive action under the Act of 1986 was proposed.

96. On. 5.1.1991 the petitioner gave a notice under Section 19B of the Act to the Secretary of the Ministry of Environment andForests stating that a the result of non-fulfillment of condition of clearance of the Project by the Corporation, direction should beissued to stop the Project work, significantly, after service of this notice on 21.10.1991 an earthquake measuring 6.1 on Richterscale hit the Garhwal region causing massive damages to Uttarkashi and Chamoli villages killing 2,000 people. Damage was alsocaused to constructions for dam already made and Tehri town itself. The Power Ministry, however, maintained that half finished Damworks, were not damaged. This earthquake which shook Garhwal region naturally revived debates and protests on the location ofthe Dam and its safety in such a highly earthquake prone region. The petitioners again raised the question as to whether the Dam asdesigned and completed would withstand likely earthquakes of more than 6,1 on Richter scale, The present petition was filed on7.12.1991 in which issues of safety of the Dam, its adverse impact on environment, displacement of people and their rehabilitationhave all been raised. Specific issue has been raised that due to non-fulfillment of the condition of environmental clearance, there isno legal justification to allow further construction works at the Dam site.

97. In the communication dated 21.10.1994, Additional Director, Ministry of Environment clearly mentioned that after grant ofclearance in 1990, 'the status of implementation of various safeguard measures were lagging far behind', It was also pointed outthat there is an urgent need to evolve monitoring mechanism for the Tehri Dam Project. On 5.12.1995 through an interventionapplication a leading Human Right Activist of Garhwal Shri Sunder Lal Bahuguna sought opportunity of participation in the case byproducing on the spot studies of the impact of the Project on the environment and the people of the region.

98. On the orders of this Court made in this petition on 17.7.1996 the Government set up two Expert Committees; one on the safetyaspects and other on the environment and rehabilitation aspects. The case stood thereafter adjourned several times awaiting thereport of the Expert Committees. The subsequent developments were reported to this Court that the Reports of the Committeeswere under consideration of National Committee of seismic design parameters and an Inter-Ministerial Committee of Secretaries ofthe Department of Environment and Rehabilitation. On 27.10.1998, an affidavit was filed by Secretary, Ministry of Power Indicatingthat the State Government has given its concurrence to the Report of the Committee on Environment and Rehabilitation aspects.

99. On 2.2.1999 again an affidavit was filed by the secretary, Ministry of Power placing on record the Government of India's decisionto implement the recommendations of both the Committees. In the said affidavit it was also stated that the Government had issueda final order accepting conclusions of group of experts on safety aspects. It is reported, that there is no necessity to undertakefurther steps as recommended by the experts viz. (1) 3-D Non-Linear Analysis of Dam to evaluate its performance against themaximum credible earthquake (2) Simulated Dam Brake Analysis suggested to be undertaken as a matter of abundant caution by thefour experts. It may be mentioned that in the mean time the new State of Uttranchal having been formed comprising Garhwal inwhich the site of dam fads, the State of Uttranchal has been impleaded as the successor to the erstwhile State of Uttar Pradesh.

100. The learned counsel appearing for the petitioner and the intervener in their separate submissions mainly raised two questionsbased on the constitutional law and the statutory laws i.e. the Environmental Act and the Rules framed thereunder. The thrust of



based on the constitutional law and the statutory laws i.e. the Environmental Act and the Rules framed thereunder. The thrust ofthe argument is that from safety aspect and from adverse impact on environment and human life of the area and more so whenconditions on which clearance to the Project had been given have not bean fulfilled, this Court should interdict the Project at leasttill all conditions are fulfilled to the complete satisfaction of the department of Environment and this court.

101. It is undeniable that execution of river valley projects is an important element of growth and development strategy. The damshave become symbol of national development. The dams too have potentials of solving many economic problems. Control of floods,famines, food shortages, unemployment, urban water shortages and the power shortages are ail possible with the help of executionof such dams. These projects do have benefits but they have adverse environmental implications. Tehri dam project is in the valleyon Himalayas, The Dam project would involve ousting of thousands of poor villagers and farmers living in the valley. The old Tehritown would be under submergence. The new Tehri town has been raised and being developed. The basic environmental issues aresaving the flora and fauna that is abounding the region. The other aspect is of danger to the upstream and down stream humanpopulation because Tehri dam area and surrounding Uttarkashi area had already suffered successive earthquakes in short intervalsand the area is known to be seismically unstable. It is held by the experts, as earthquake-prone. The Project will also destroy andhas already destroyed to a large extent forest tracks. Along the river deforestation has endangered the river itself and afterimpounding of water there would be large scale erosion of river bank. When such projects are undertaken, there are competingclaims of technocrats and engineers eager to put the country on the path of development and environmentalists who see a seriousdanger to ecology and environment. These are the two conflicting claims and aspects which need Court's intervention for abalanced approach and consequential remedial action. The problem before the country with more and more dam projects beingundertaken is how to make use of natural resources for improving human health, welfare and comfort without depleting or damagingthem over a foreseeable period of time. A strategy for conserving or resources-effective use of non-renewable resources is theimperative demand of modern times, Whereas, minimum sustainable development must not endanger the natural system thatsupports life on earth, constant technological efforts are demanded for resources-effective production, so that sacrifice of one eco-system is counter balanced or compensated by recreating another system.

[Sec discussion on the topic to the Book 'Environmental Solution and Development' authored by Chander Pal at pages198-201 & 236-237]

102. By river valley dam projects there are adverse up-stream impacts and down stream impacts on environment. The upstreamenvironmental and ecological impacts of big dams are:

(1) Soil erosion (2) micro-climatic changes (3) loss of forests, flora & fauna (4) changes in fisheries, especially on spawning grounds(5) chain effects on catchment area due to construction and displacement etc (6) landslips, siltation and sedimentation (7) breedingof vectors in the reservoir and increase in related diseases (8) seismicity (9) loss of non forest land (10) water- logging aroundreservoir (11) growth of weeds.

Down stream impacts

103. The down stream environment impacts of the large dams are :-

(1) Water-logging and salinity (2) micro-climatic changes (3) reduced water flow and deposition in river, with related impacts onaquatic eco-system, flora and fauna (4) flash floods (5) loss of land fertility along with river (6) vector breeding and increase inrelated diseases.

104. These adverse effects have long term and irreversible loss of quality of human life and other creatures in the region. In order tomeet such adverse impact on environment, a thorough environment impact assessment has to be made before the clearance of thedam. The Department of Environment and Forests has prepared detailed guidelines before a project is cleared. Wherever certainconditions for clearance are imposed they are to be strictly adhered to.

105. There are economic costs as well as social costs and environment costs involved in a project of construction of large dam. Thesocial costs is also too heavy. It results in wide spread displacement of local people from their ancestral habitat and loss of theirtraditional occupations. The displacement of economically weaker sections of the society and tribals, is the most serious aspect ofdisplacement from the point of view of uprooting them from their natural surroundings. Absence of these surroundings in the newsettlement colonies shatters their social, cultural and physical links.

106. The large dam projects are, therefore, required to be taken care by the Government with utmost concern of the poor and thedeprived sections of the society who are necessarily to be displaced from their habitat and shifted to a totally new environment andway of life. The poor and the marginalized group in carrying out of a dam project suffer most because the natural resources-base oftheir survival are eroded and cash compensation of land at a different location many times does not fully rehabilitate them. Thedams are bunt by public funds with the aim to satisfy the energy and water needs but what benefit ultimately it would give to thedisplaced people should also be taken care of. The conflicts over natural resources which frequently come to Courts are thereforeconflicts over rights between haves and haves not.

107. The protest of ecologists, as is brought before us in this Public Interest Litigation, is not to be seen as obstructionists andanti-progress because the petitioners are actuated by desire to obstruct ecological destruction and to halt the process that resultsin progress for a few and hardships for many.

108. The Government can utilize the natural resources for common good but cannot be allowed to exploit or virtually plunder it in amanner to deprive those presently sustaining their lives on those natural resources and deprive the conning generations who havealso a right of living on those resources. On these fundamental issues, there is a cleavage between technological experts,environmentalists and human rights activists. The Court is faced with an issue not easy to decide as to which Section of expertsand environmentalists is right in their approach.

109. Ours is a constitutional democracy and we are called a "welfare State', "Welfare" does not mean that we have only to strive forfulfillment of political theory "Greatest good of greatest number". Out motto from vedic times has been sarva Ian Hitay, sarva Iansukhai (benefit of ail and happiness of all).

Our vedic prayer is .....

"Let all be happy, let all be sin-free, let everyone see good in everything. There should be no suffering anywhere."

110. It is, therefore, necessary that when a multimillion big dam project is undertaken to generate electricity and for providing waterfor irrigation and drinking, we should not leave those living by the side of river from generations to a suffering by displacement to afar off place which would deprive them of their life and life style. In the march of progress, the humblest and the weakest should not



far off place which would deprive them of their life and life style. In the march of progress, the humblest and the weakest should notbe left behind, Man living in the hills or valleys is dependant for survival on natural resources. To remove him and rehabilitate him inthe plains is taking a fish from the river and putting it into a artificial reservoir or an aquarium where it might survive but can neverbe happy. All efforts are therefore, required to be made that the displaced or oustees, who were hitherto getting benefits from theriver for their survival, are adequately compensated by minimum possible disturbance to their life sources and style of life. Inimplementation of large river dam projects the utmost concern of the State should be the interest of the oustees. Before electricityis generated and drinking water is made available to urban population up to Delhi, care has to be first given to the needs anddemands of the people who live in the hills and valley and face ouster. Before the reservoir is fun to its optimum capacity togenerate electricity and provide irrigation, the work of rehabilitation to the optimum satisfaction of the oustees must be completed.In this direction, the affidavit filed by the Ministry of Environment, does not vouchsafe that the work of rehabilitation has beencompleted to the satisfaction of not only the officials of the rehabilitation department but the oustees themselves speakingindividually or collectively.

111. On behalf of Union of India and the Tehri Development Corporation, the separate reply on affidavit has been filed to counterthe allegations made by the petitioner that the conditions granted in the order of clearance given by the Ministry of Environmenthave not been complied with. Learned counsel Shri Kirit Rawal made strenuous effort by taking us through to the several reports ofthe committees received from time to time. The technical data and other information collected in the matter of fulfillment of theconditions of clearance have all been placed before us. The submission made is that where the conditions imposed for clearance areto be Implemented peri passu with the engineering works, it is contemplated by the conditions themselves that side by side with theengineering work, the conditions to protect environment for treatment of catchment area, development of Common Area andrehabilitation will go on. In a project of such huge dimensions involving multifarious engineering and non-engineering activities,fulfillment of conditions laid down to undertake the Project have to be taken up simultaneously with the construction work of thedam and proportionately with the progress of engineering work. A Chart to show such progress has been submitted by TehriDevelopment Corporation to Impress upon this Court that although the time schedule has not been strictly adhered to because ofthe several difficulties and obstructions in the progress of the project, the conditions have been achieved in proportion to theengineering work already taken. It is submitted that Corporation is not guilty of non-fulfillment of the conditions and no prohibitiveaction is called for.

112. So far as the safety aspects of the dam are concerned, reliance is placed on the technical opinion of the experts, which saysthat a rock fill dam does not require three-dimensional studies to estimate its safety against earthquake. It is submitted that suchcomputer based three-dimensional studies have been found to be only of theoretical value. Two-dimensional test already done fullyensures safety of the dam against an earthquake even up to 7 on Richter Scale. It is submitted that the two-dimensional studies ofthe dam is made on an assumption that the impact of earthquake of 7 or more Richter Scale would be uniform throughout the lengthand breadth of the dam. The experts have found such two-dimensional studies sufficient for the safety of the dam. Suggestion ofonly one of the experts for conducting a three dimensional test only by way of an abundant caution has been found by the team ofexperts neither feasible nor desirable.

113. Attempt has also been made by filing item-wise comments that various recommendations of Hanumantha Rao Committee werein-depth gone into by Inter-Departmental Committee and most of the recommendations except a few have been accepted and alsosubstantially implemented in proportion to the construction work already undertaken.

114. On behalf of the Corporation, a categorical statement has been made that until all the conditions of the clearance are notfulfilled, Tunnel Nos. 3 & 4 shall not be opened and the reservoir shall not be filled beyond its present water level. People presentlyliving in the catchment area in Tehri town would not be evacuated till they are paid either cash compensation or land in lieu thereof,with shelter. The Corporation has also presented before us in the course of hearing status Report of fulfillment of the various

conditions at the project site up to 31.01.2003.

115. The project for construction of large dams has been undertaken to provide electricity and irrigation facilities. Fromenvironmental and social prospective, large dams raise variety of issues. They entail massive incursions into natural eco-system andhuman settlements. When the project is undertaken, it is asserted that these incursions can be minimised by appropriate steps likeEnvironmental Impact Assessment and preventive/ameliorative measures. It is with this purpose that the Environmental Act andrules require the project to take care of the adverse impact on environment and human population. Environmental clearance now is alegal requirement. A mechanism has also been evolved for evaluation of the environmental impact and its monitoring. Construction oflarge dams are accompanied by significant alterations In the up-stream and the down-stream, physical and biological environment.For building reservoirs, large track of forest lands get submerged. Water logging and salinasation affect the canal Irrigated land withvarying degrees of severity. Several species of wild animals and plants become extinct. There is a likelihood of several diseases likeMalaria spreading.

116. On the positive side, the alleviation of water scarcity leads to improvement in the health standard of people and reduction indiseases caused by shortage of potable water. Barren lands become green. New habitats are created for water birds.

117. In order to take care of the negative aspects of the large dams, the conditions for clearance generally require :-

1. Compensatory afforestation,

2. Treatment of catchment area to prevent prematured silt in other aspects.

3. Measures to prevent or minimise water logging and salinasation in the command area and around the reservoir.

4. Measures to prevent and minimise impact on health.

5. Safeguards against ill effects to the seismicity.

6. Ways of saving translocated wild plants and animals.

7. Providing alternative fuels to project labour and ladders for migrant fish to cross over the dam.

118. The Tehri Dam Project has obtained a clearance and a major portion of the dam has already been constructed. The catchmentarea has not been filled with water as the two diversion channels having gates have not been closed for filling the dam. This is theright stage when there is necessity of close monitoring, evaluation and reappraisal of work to ascertain compliance of the conditionsand check adverse impact on environment as also ensure rehabilitation of the people displaced from the dam area and the did Tehritown. In the instant case, the Corporation claims that it has fulfilled the conditions pari passu with the engineering works. This high



town. In the instant case, the Corporation claims that it has fulfilled the conditions pari passu with the engineering works. This highclaim is with the admission that the time schedule in the condition of clearance has not been kept up. This is the proper stage whena thorough assessment by a team of experts in relevant branches is required to be undertaken for ascertaining whether theconditions of clearance have been fulfilled pari passu with the engineering works. If this is not done before the dam is allowed to befilled, adverse impacts caused on environment would be irreversible and would not be compensated because of the severe scale ofthe ecological intervention. The mistake that might have been done in the past with regard to other similar large and small damsshould not be allowed to be repeated in the Tehri Dam Project which is different from other dam Projects in plains. Tehri dam beinglocated in the Himalayas the adverse environmental impact would both be up-stream and downstream. Meticulous care andprecaution, therefore, is required to be taken for a dam which Is being constructed on a high altitude area posing threat to down-stream population. If the safety aspects are not fully taken care of and the command area treatment is not done to the desiredlevel or standard, the consequence may be catastrophic and beyond repair.

119. Only two aspects, in my considered opinion, need special attention and consequent directions by this court to the concernedauthorities represented through the respondents in this case.

1. Safety aspect of the Dam :

120. Tehri Dam have been cleared for construction in a seismically, unstable, earthquake prone area in the valley of Himalayas.

121. The project was earlier not cleared on the opinion of the experts as a severe earthquake could burst the dam and destroyseveral important temples, towns and holy places like Rishikesh and Haridwar. There are other thickly populated towns and villagesdown stream. The members of the Environmental Appraisal Committee (EAC) which has an expert body within the Ministry ofEnvironmental and Forests had earlier unanimously concluded that the Tehri project did not merit environment clearance and shouldbe abandoned. Thereafter, a Committee of Secretaries of concerned Departments was constituted which did not agree with theEAC's recommendations. A dissenting note was submitted by expert Dr. V.K. Gaur to the Committee of Secretaries. The Committee

then assigned reassessment of the task of safety to the department of mines. Professor Jai Krishna an earthquake engineer but nota seismologist opined in favour of the project. The foreign expert Professor James D. Brune was a seismologist who did not favourthe project due to safety aspect involved.

122. On safety aspects the matter was brought to this Court in case reported in Tehri Bandh Virodhi Sangarsh Samiti and Ors. v.State of U.P. and Ors. [1992 (supp) 1 SCC 44] by environmentalists. This Court while refusing to interfere with the matter wentby the opinion of Earthquake Engineer Professor Jai Krishna. In his own language, "The design of the Tehri Dam as suggested byIndian and Soviet experts was quiet safe against the strongest earthquake in the region".

123. The petitioners in this case on the basis of expert's opinion of Professor Jai Krishna and foreign expert James D. Brunesubmitted that as an extra precautionary measure 3-D Non-Linear Analysis of the dam should be undertaken to evaluate itsperformance against the maximum possible earthquake. A simulated Dam Break Analysis (DBA) has also been suggested by the fourexperts as a matter of abundant caution.

124. On behalf of the respondents the counsel separately appearing for different departments and the project authorities havetaken uniform stand that 3-D Non-Linear Analysis is neither essential nor feasible for want of necessary competent expertise in Indiaand even abroad. It has also been argued that challenge to safety aspects have been negatived in the earlier decision of this Courtrendered in 1992 and the project was allowed to go ahead and by now has progressed to a very large extent.

125. On the safety aspect of the dam particularly when the location of the dam is in a highly earthquake prone zone in the valleysof Himalayas, alt additional safeguards are required to be undertaken on the 'precautionary principle' as contained in 'the RIODeclaration on Environment and Development' taken in the United 'Nation conference held in January 1992 to which India is a party.The precautionary principle in RIO declaration reads :

"In order to protect the environment, the precautionary approach shall be widely applied by State accordingly to their capabilities.Where there are threats of series of reversible damage lock of full scientific certainty shell not be used as a reason for postponingcost effective measures to prevent environment degradation".

[Emphasis supplied]

126. The precautionary principle accepted by India being a party and significatory to international agreement and understandings inthe field of environment has become part of domestic law i.e. Environmental (Protection) Act. The Governmental authorities in Indiacannot be permitted to set up plea of scientific uncertainty of 3-D Non-Linear Analysis of the dam. On the safety aspect the pleaslike res judicata based on earlier decision of this Court cannot be allowed to be raised when further developments and events in thecourse of the project require further precautions to be taken before filling the dam to the optimum capacity. It is not the case ofthe respondents that 3-D Non-Linear Analysis of the dam cannot be undertaken with the assistance of foreign experts on thesubject. To take care of alt eventualities of damage to dam by earthquake. 3-D Non-Linear Analysis of the dam suggested by fourexperts as a matter of abundant caution must be undertaken. It is only after 3-D Non-Linear Analysis of the dam is completed andthe opinion of the experts on the safety aspect is again sought that further impoundment of the dam should be allowed. In M.C.Mehta v. Union of India (Trapezium matter) (1997 (2) SCC 353) this Court has applied 'Polluter pays principle' and 'Precautionaryprinciple' of International law as law of the land of this country, India being party to the United Nation Conference and signatory toInternational Declarations and Agreements.

Requirement of the provisions of the Act and the conditional clearance

127. Before taking up the rehabilitation aspect for issuing necessary directions it is required to be stated that in accordance withthe provisions of Section 3 of Environment Protection Act, 1985 and Rule 5 of the Environmental Rule 1986, the Tehri Dam Project

was granted conditional clearance. A notification dated 27th January, 1994 has been issued under the Act and the rules onEnvironmental Impact Assessment of Development Project, Under the said notification an Environmental Impact Assessment isrequired to be made by the Impact Assessment Agency. Without a proper environmental impact assessment no project can beaccorded environmental clearance. In the present case the environmental clearance was given on 19.7.1990 before the issuance of

the notification on 27th January, 1994 on the Environmental Impact Assessment of Development Project. Nonetheless, the directionsand guidelines contained in the said notification have to be applied even to the existing dam projects and a strict monitoring of theimpact of the project on the environment has to be done by the Central Government through its Ministry of Environment andForests. The clearance to the project was given in the year 1990 on amongst others the following specific condition "completion ofstatus, formulation of action plans and their implementation will be scheduled in such a way that their execution is pari passu fallingwhich the works could be brought to a hair. This condition was enforceable under the provisions of Environment (Protection) Act1986.



1986.

128. The letter of the Secretary of Ministry of Environment and Forest to the Secretary Ministry of labour dated 12.4.1991 clearly

shows failure on the part of Tehri Haydel Development Corporation (THDC) to comply with the conditions granted for environmentclearance, The Ministry has expressed total dissatisfaction on the compliance. The petitioners gave a notice under Section 19(b) ofthe Act on 5.9.1991 to the Authorities pointing out that non-fulfillment of the conditions provided in the environment clearancewithin the stipulated time-frame has resulted in lapse of said clearance and the work of project should be stopped forthwith. On20.10.1991 earthquake of 6.6 on ritchter scale hit Uttarkashi causing immense destruction of property and life. The uncompleteddam also suffered trauma but no damage was reported. Even during pendency of this petition successive earthquakes shookUttranchal regions in the vicinity of dam site. Thereafter, the petitioners had bean constantly writing to the authorities that forwant of non-fulfillment of the conditional clearance the project construction work should be stopped. There is on record a notedated 21.10.1334 of Additional Director or Ministry of Environment recording that although the environment clearance was grantedto the project in the year 1990, 'the status of implementation of various safeguard measures were lagging far behind'. It was alsopointed out in the note of the Director that there was an urgent need 'to evolve a monitoring mechanism for the Tehri Dam Project'.

129. Where the requirements of law as contained in the Act, the Rules and the notification issued thereunder contemplate impositionof conditions for clearance to a project to minimise its adverse impact on environment, the Authorities granting such clearancepossess a power coupled with duty and obligation to ensure fulfillment of the conditions on the basis of which the environmentalclearance is granted. We are sorry to note that in the face of so may conflicting expert opinions on the project undertaken in ahighly earthquake prone region the conditional environmental clearance was granted without monitoring the work of the project toensure fulfillment of those conditions.

130. A strict vigil on fulfillment of the conditions of environmental clearance was required by the Ministry of Environment and Forestand stringent action should have been taken against the Authorities for not adhering to pari passu condition of clearance, in thelatest affidavit filed by the Ministry of Environment and Forest it is promised that in future strict monitoring of the fulfillment of theconditions granted for environment clearance would be done. Granting a conditional clearance is not a mere formality. The power togrant clearance even though with conditions was accompanied by duty on the part of the Ministry to have effective check on theprogress of project and ensure fulfillment of the conditions in accordance with pari passu clause. Since the Ministry of Environmentand Forest has failed to discharge its duty of exercising proper check on the fulfillment of pan passu clause of conditional clearance,it is necessary to provide an Independent mechanism through a forum of Inter-departmental authorities and experts so that theproject presently undertaken by the Corporation with the aid, assistance and finances provided by the States, Central Governmentand the World Bank is allowed to progress end be completed strictly on fulfillment of the conditions on which environmentalclearance was granted.

2. Rehabilitation aspect

131. The Ministry of Environment and Forests has filed an affidavit before us showing the present position of progress inresettlement and rehabilitation activities undertaken as part of fulfillment of the conditional clearance of the project. It may berecalled that the Ministry of Welfare of Government of India in the year 1985 initiated a Rehabilitation Policy. It came to be approvedonly in the year 1997. Thus the National policy, Packages and Guidelines for resettlement and rehabilitation accept thefollowing principles :-

1. Displacement should be minimised. So people displacing projects should be the last option after studying non-displacing and leastdisplacing projects, and if this is the only alternative.

2. The public purpose based on which people are displaced or otherwise deprived of their livelihood should be defined. Prior informedconsent to be affected by it should be mandatory after the project is explained to them and if they see that is according to thepublic purpose thus defined properly.

3. Replacement value to be the norm for compensation, against the present norm of market value which is totally inadequate.

4. Right to life with dignity enshrined in Article 21 of the constitution should be respected. So, the displaced persons should have abetter lifestyle after displacement than before it because they are paying the price of national development.

5. Displaced Persons (DPs/PAFs) should be the first beneficiaries of any project.

6. Rehabilitation is mandatory and should go on side by side with the project.

7. Land for land is recommended to all and is mandatory for tribals, Compensation is to be provided for common property resourcesand forest lands that may be acquired from their dependants.

8. The DPs/PAPs are defined in a way as to include not only land owners but also those who depend on it without owning it, andthose who have common property resources as their sustenance.

132. This Court in the case of __Karjan Jalasay Yojana Assargrasth Shakhar Ane Snagharsh Samiti v. State of Gujarat (AIR1987 SC 532) has held thus:

"Simultaneously with taking possession of the acquired land from any person in occupation of it, such person shall be provided eitheralternative land of equal qualify but not exceeding three acres in area and it that is not possible, then alternative employment wherehe would be assured a minimum wane. .......... No possession of any part of the acquired land shell be taken from any person unlessand until he is either provided with alternative land or alternative employment which is not temporary in character so that he andthe members of his family do not remain without means of subsistance ..... if for any reason the State Government is not able toprovide alternative land or arrange for alternative employment, the State Government will subject to the same exception, pay to thehead of the family at the latter" place of residence compensation equivalent to minimum wage every fortnight during the periodalternative land or employment is not provided."

133. The above directions of this Court in the case of Karjan Jalasay (supra) were based on the factual realities that for mostmarginal farmers and tribals monetary compensation for acquisition of land can never be sustainable source of dignified living. A newplace of alternative land of equal quality should be given to those dispossessed from land due to acquisition for public purpose. Inthe last affidavit submitted by Ministry of Environment and Forests before us to show the status of the progress of rehabilitation ason 3rd February, 2003, the figures disclose that out of total 9,239 rural affected families cash compensation is not paid to 1,943



on 3rd February, 2003, the figures disclose that out of total 9,239 rural affected families cash compensation is not paid to 1,943families and 250 families affected by Koteshwar Darn have also not received cash compensation.

134. For providing agricultural land to farmers who have been ousted it is stated that land is being acquired down the valley in thevicinity of Dehradun city. The Government has thus been involved in exercise of rehabilitating the dam oustees on acquired land fromother land holders who in turn will have to be ousted. This win give rise to chain reaction of making other people landless. Theprocess has not yet been completed and according to the affidavit of the Ministry itself the work of resettlement and rehabilitationis underway.

135. When natural resources are exploited in a big way for big projects by State with all sincerity and good intentions for generalcommon benefit, social conflicts arise as a natural adverse consequence, Generally the conflicts arise between marginal farmers,peasants and other landless persons who survive on natural resources and those who are better off, rich or affluent and who desireto undertake agriculture and industry. When river projects for dams are undertaken to generate electricity and improve irrigationfacilities, conflicts arise between people living up-stream who have to necessarily lose their source of living and habitat and thoseliving down-stream who need water and electricity for their homes, Industries and agricultural fields. When such social conflictsbetween different social groups i.e. up-stream population and down-stream population, between rural population and urbanpopulation, between poor surviving on natural resources and others needing natural resources for further development arise whatshould be the duty and priorities of the State and its authorities who have undertaken the projects? When such social conflicts arisebetween poor and more needy on one side and rich or affluent or less needy on the other, prior attention has to be paid to theformer group which is both financially and politically weak. Such less advantaged group is expected to be given prior attention byWelfare State like ours which is committed and obliged by the Constitution, particularly by its provisions contained in the Preamble,Fundamental rights, Fundamental duties and Directive Principles, to take care of such deprived sections of people who are likely tolose their home and source of livelihood.

136. Mistakes in resettlement and rehabilitation of people ousted by other similar Projects committed in the past have to be avoided.The construction of dam cannot be allowed to proceed and be completed leaving the oustees high and dry.

137. The oustees of Tehri Dam Project who are used to valley life in Himalayas are proposed to be resettled and rehabilitated innewly built Tehri Town and those depending on forest and agriculture are proposed to be given cash compensation or land down-stream near Dehradun city. The Ministry of Environment and Forests (MoEF) in their last affidavit has given a status report to showthat resettlement work is in progress but not completed. In the affidavit it is promised as under:-

"The Project authority shall ensure that prior to closing of diversion tunnels T1/T2 for impoundment of the Reservoir; evacuation,resettlement and rehabilitation are completed in all respects. In addition, the catchment area and treatment of direct draining areasetc. shall be completed. The Project Authority shall obtain clearance from MoEF before closing the outlet at EL 700 m."

138. The RIO declaration of environment and development in the United Nations' Conference held in June 1992 to which India was aparty and signatory and on which the Environment Protection Act, its Rules and Policies are modeled, obligates the Authorities ofIndia by the norms fixed in International end Domestic Law that "the environmental and natural resources of people under operation,domination and occupation shall be protected," A mention has already been made above of the latest rehabilitation policy framed bythe Government of India and relevant part has been quoted. These legal and policy obligations are enforceable against the State.

139. In my considered opinion, therefore, the present status of dam project, keeping in view the pari passu condition on which"environmental clearance" has been granted by MoEF, calls for issuing following directions to the respondents who represent variousMinistries & departments of Central and State Government as also the Corporation to which the project has been entrusted for

implementation.

(1) The Central Government in terms of the recommendations of Expert Committee for Environmental Impact Assessment as

contained in Schedule III of the Notification dated 27th January, 1994 issued in exercise of powers under Sub-section (i) and ClauseV of Sub-section (2) of Section 3 of Environment (Protection) Act 1986 read with Clause (f) of Sub-Rule (3) of Rule 5 ofEnvironment (Protection) Act 1986 shall constitute a Committee of Experts and representatives of NGOs (if not already constituted)for the purpose of investigating, ascertaining and reporting whether the pari passu condition laid down in the environmentclearance of the Project have been fulfilled or not by the authorities of the Project. The aforesaid committee will inspect and reporton the status of the work to the Central Government every three months and in case the conditions, as laid down in the clearance,are not fulfilled recommend the remedial or corrective measures/actions.

(2) To take care of the safety aspects, until 3-D Non-Linear Analysis and Dam Break Analysis are completed as recommended by theCommittee on safety and the result assessed by the aforesaid Expert Committee is submitted to the Central Government, diversiontunnels T1/T2 for impoundment of the Reservoir shall not be closed.

(3) The Expert Committee for environment Impact Assessment constituted under Schedule III of Notification dated 27th January1994 will also look into and submit status report on the progress of resettlement and rehabilitation measures. There will be noimpoundment of the Reservoir until resettlement and rehabilitation work is fully completed in all respects,

(4) An effective Grievance Redressal Cell headed by an independent expert in the field or social science shall be set up by the StateGovernment with the help of Central Government for solving rehabilitation and resettlement problems of the oustees of the Project.The Grievance Radressal/Cell shall submit its status report every three months to the Expert Committee constituted under ScheduleIII of the notification (supra).

140. This 'writ petition succeeds to the extent of directions made above.

141. All connected matters and applications also stand disposed of. The petitioners shall be entitled to all costs incurred by them inprosecuting these petitions in public interest from the respondents who will share them in equal proportion.


State of Karnataka v. K.A. Kunchin- JT 2002 (4) SC 255

M.V.P. Social Workers Association v. V.U.D.A. and Others� Decided on 23-01-2002.



Gopi Bhai v. Municipal Corporation of Hyderabad AIR 2002 A.P.� 145

Veerachand Anna Valwade v. State of Maharashtra AIR 2002 BOM. 197

M/s Raj Ram Corn Products (Punjab) Ltd.� v. State of Punjab, Punjab Law Reporter CXXX (2002-1) 189

Balappa Basamanappa Kosji v. State �of Karnataka, AIR 2002 Kar. 44

Monoj Kumar Roy v. Appelalte Authority AIR 2002 Calcutta 216

K.M. Chinnappa in T.N. Godavarman Thirumalpad v. Union of India I.A. No. 670 of 2001, Writ petition C No. 202/-1995

M. C Mehta v Kamal Nath [2002] 3 SCC 653

Moti Lal v. Central Bureau of Investigation and others JT 2002 (4) SC 31

Shobana Ramasubramanyam v. The Member Secretary, Chennai Metropolitan Development Authority - AIR 2002 Mad. 125M. P

Rambabu v. The District Forest Officer AIR 2002 A. P� 256

M/s Vijayanagar Educational Trust v. Karnataka State Pollution Control Board, Bangalore AIR 2002 Kar. 123

Forest Friendly Camps Pvt. Ltd. v State of Rajasthan� - AIR 2002 Raj. 214

Ran Singh v. State of U. P� - 2002 AIHC 1860 [Allahabad High Court]

State of Karnataka v. K.A. Kunchin- JT 2002 (4) SC 255

�D.P. Mohopatra and Shivajraj V. Patil, JJ.

Karnataka Forest Act, 1963- Sections 62, 71-A, 71- G.

Criminal Procedure Code- Sections -482

The powers of confiscation of forest produce by the Forest Officer under the Karnataka Forest Act in lieu of the powerof the Magistrate under the Cr.P.C

The present appeal filed by the State of Karnataka before the Supreme Court against the decision of the High Curt ofKarnataka.

In this case was called upon to decide which authority has the power to pass an order for interim release of the forest produceseized under Karnataka Forest Act, 1963? Is it Magistrate or prescribed authority under the Act?

The Forest Officials seized a lorry which was carrying Sandalwood oil on the allegation of illegal transportation of forestproduce. When the forest Officials failed to trace out the owners of the seized materials, the Authorized Officer ordered forconfiscation of the Seized vehicle and sandalwood oil. Later, application of the owner of the vehicle for interim custody of thevehicle before Judicial Magistrate and the appeal before Sessions Judge were rejected as the power to grant interim releasevested in the Authorized Officer.

The respondent then filed a petition under section 482 of Cr.P.C. before the High Court.� The High Court held that it is thejurisdictional Magistrate by virtue of the relevant provisions of the Cr.P.C.� read with clause (b) of the sub-section 3 of thesection 62 of the Act who has the jurisdiction to consider the request of custody of the vehicle allegedly used in thetransportation of sandalwood oil. The Court held that the Magistrate and Sessions Judge erred in holding to the contrary. TheHigh Court drew distinction between the expressions �sandalwood� and �sandal wood oil� and held that these are distinctitems of forest produce and in the absence of any provision vesting the power of the confiscation in the authorized officer inrespect of sandalwood oil, such power could not be exercised by him.

However, in appeal the Supreme Court observed �the Karnataka Forest Act is special statute enacted for the purpose ofpreserving the forests and the forest produce in the state. under the Act certain powers viz., power of seizure, confiscationand the forfeiture of the forest produce illegally removed for the forest have been vested in the Authorized Officers. Theposition is made clear by the non obstante clause in the relevant provision giving overriding effect to the provisions in the Actover other statutes or laws.

The necessary corollary of such provisions is that in a case where the authorized officer is empowered to confiscate the seizedforest produce on being satisfied that an offence under the Act has been committed thereof, the general powers vested in themagistrate� for dealing with interim custody/release of the seized materials under the Cr.P.C. has to give way. The magistratewhile dealing with a case of any seizure of forest produce under the Act should examine whether the power to confiscate theseized forest produce is vested in the authorized officer under the Act and if he finds that such power is vested in theauthorized officer then he has no power to pass an order dealing with interim custody/release of the seized material.�

The Court held that the Magistrate and the Sessions were right in holding that it is the authorized officer who is vested withthe power to pass order of interim custody of the vehicle and not the not the magistrate. The High Court was in error in takinga view to the contrary and in setting aside the orders passed by the lower court.� The Court also observed �moreover, thefinal order confiscating the seized sandalwood together with the vehicle used for transporting was published in the officialgazette. The order being not challenged in any appeal or any other preceding it attained finality. In such circumstances, thequestion of the magistrate exercising power of interim custody of the vehicle did not arise at all.

Hence, the Court allowed the appeal and quashed the order High Court�s order.



Hence, the Court allowed the appeal and quashed the order High Court�s order.

M.V.P. Social Workers Association v. V.U.D.A. and Others� Decided on 23-01-2002.

�Andhra Pradesh High Court, Writ Petition No. 26085 of 2001 Dr. Arlakshmanan, C.J. & V.V.S. Rao, �

Construction of an Amusement complex in a land designated for a Park. The Petitioner-association, M.V.P. Social Workers Association Colony, Viskahapatnam, is a registered association formed in theyear 1993 with the object of doing social service and to strive for better standards of life.The Petitioner-association, M.V.P. filed the Writ Petition as a Public Interest Litigation challenging the action of theVishakapatanam Urban Development Authority (VUDA) permitting the MGM Dizzy World to establish an electronic and videogames complex (amusement park), near VUDA Park at Visakhapatnam beach line, on the ground that it affects the environmentof the Coastal Zone of the city and violative Coastal Regulation Zone Notification under Environment Protection Act,1986.

�� The counsel for the petitioner submitted that the VUDA Park came into existence in 1982 on the Visakapatnam beach lineand created many facilities therein such as lawns, skating rink, swimming pool, children play ground, boat club and musicalfountains etc. However there was no violation of law as there was no permanent construction at any time even though��park is within the area of 200 meters from High Tide Line of the sea. But the MGM Dizzy World started big construction in thepark on a permanent basis to locate electronic and video games complex in the place earmarked as children play ground in thesaid park. They also dug a bore well.� It was also contended that no permission from the Municipal Corporation for the said�construction was sought on the conversion of the said area into a commercial facility. Moreover, the act is violation of Rule5(3) of Coastal Regulation Zone Notification.The counsel for the respondent on the other hand contended that the MGM Dizzy World entered an agreement of license withVUDA for a period of nine years. All the stipulations of the license had been fulfilled.�

The Court observed�� A perusal of the aforesaid terms and conditions of license would clearly show that the VUDA hastaken all the necessary precautions and measures to safeguard their interests and the interest of the public at large includingthe effect of pollution and environmental aspects of the matter. There is a clear condition in the licence that the licensee shallnot make any excavation in the demised land except in the requirement for setting up of an amusement park and relatedactivities. As per the licence, the licensee was under an obligation to comply with all the statutory requirements to safeguardthe environment. It has been made specifically clear in the deed of licence that the licensee shall not extend to raising anypermanent structure which is the grievance voiced by the petitioner in this writ petition. By leasing out the property to the 4threspondent, 1st respondent is regularly getting annual compensation of Rs.18.00 lakhs for the first three years and that thecompensation should be paid in advance every year on or before 8th of November and in default interest at 24% shall becharged. Conditions of licence also provide that the compensation shall be increased by 33% for every three years or partthereof during the currency of the agreement. Accordingly, schedule of payment has been fixed as per Clause 3(b) in the deedof licence. Under the deed of licence, the 4th respondent was required to make minimum investment of Rs.5.00 crores in theproject. The licensee has to adhere to the progress and minimum investment as stipulated in Clause 5(a) and 5(b) and thelicensee has also agreed to pay penalty for the short fall on the target at 2% per annum."

The Court held that the authorities have not permitted MGM Dizzy World to undertake prohibited activities. The VUDA hastaken all the necessary precautionary measure for protecting and safeguarding the sensitive are a before granting the licencein favour of the MGM Dizzy World The VUDA have not wrongly exercised their power of jurisdiction in favour of the MGM DizzyWorld. The authorities have not allowed any activities which would ultimately lead to unscientific and unsustainabledevelopment and ecological destruction. The Court dismissed the petition.

Gopi Bhai v. Municipal Corporation of Hyderabad AIR 2002 A.P.� 145

�G. Bikshapathy� J,

�Ancient Monument and Archaeological Sites and Remains Act, 1958. Sec. 38

�Ancient Monument and Archaeological Sites and Remains Rules, 1959 � Rules 31 and 32�

Construction of a house near Charminar in Hyderabad.

The petitioner in this writ petition challenged the refusal to grant permission to construct premises by the Municipal Corporationon the ground that it falls within the distance of 100 meters from the Charminar, a protected monument in Hyderabad.

The petitioner was the owner of the premises near the Charminar. The Municipal Corporation issued the notice directing thepetitioner to demolish her old buildings as they were in dilapidated condition. The petitioner followed accordingly and filed anapplication before the Corporation for grant of permission to make fresh construction on the same place. However, thepermission was rejected on the ground that the building falls within 100 meters radius from the Charminar, a protected

monument. The petitioner preferred a writ petition before the High Court of Andhra Pradesh against this rejection.

The counsel for respondents contended that the Charminar was declared as prohibited area by the Central Government by anotification in 1992. The notification mandates that any construction or mining operation without the permission of the CentralGovernment cannot be undertaken. Hence, the order of the Corporation is valid.

The Counsel for the Petitioners argued that the Central Government vested with the power to declare an area near or adjoininga protected monument as prohibited or regulated area. However, the Central Government requires to comply with theprovisions of Rule 32 of the Ancient Monument and Archaeological Sites and Remains Rules1959 of Ancient Monument andArchaeological Sites and Remains Act, 1958 while doing so.� The rules mention the Central Government has to give one monthnotice before declaring an area or adjoining a protected monument as prohibited or regulated area. The Counsel for thepetitioner further argued that the Charminar was not come under Rule 31 of the Rules and notification in 1992 as there was nospecific notice of intention to declare a prohibited or regulated area. The counsels for the petitioner further argued that themonuments which are declared as such under the Act do not occupy the same area and each areas has to be notified by aseparate notification by following procedure under Rule 31 and 32 of the Rule.

After hearing the argument of the parties,� the Court held that the Rules 31 and 32 of the Rules requires declaration ofprohibited and regulated monument and there cannot be any general declaration in respect of all the monuments for the



prohibited and regulated monument and there cannot be any general declaration in respect of all the monuments for theobvious reason that all monuments are not identical in size, design, area etc., and earmarking of prohibited or regulated areavarious from monument depending on its size and area.� Therefore, a general notification did not contain Charminar as aprotected monument. Therefore Rules cannot be made applicable to Charminar, so as to deny the petitioner�s the grant ofpermission to construct the building.�

Finally, Court held that the respondent Corporation�s refusal is illegal and without jurisdiction. The respondent was alsodirected to consider the plan submitted by the petitioner.

Veerachand Anna Valwade v. State of Maharashtra AIR 2002 BOM. 197

R.M. Lodha and D.B. Bhosale, JJ.

Maharashtra Resettlement of Project Displaced Persons Act, 1976 �Secs.� � 11, 16

Land Acquisition Act, 1894- Secs. � 36, 48

Re-acquisition of land from the same land holder under the LAA.

The petitioners filed a writ petition challenging notification of Maharashtra State Government which allowed the authoritiesreacquire another land holding of a same a land holder for resettlement of project affected persons.

The Government issued a� notification in 1982 under the provisions of the Maharashtra� Resettlement of Project DisplacedPersons Act, 1976 were made applicable several villages including the village where petitioners land holdings are situated. Laterin 1996 through another notification under Section 4 (1) of the Land Acquisition Act, the Government proposed to acquire thetwo land properties of the petitioners for the resettlement of Warna Irrigation Project affected.� To this, plaintiff voluntarilyrequested the authorities to acquire the requisite land out of single survey instead of two different place of land. Heeding tothis suggestion, the authorities acquired the land out of single survey by paying compensation to the petitioner for theacquisition for the acquisition of the land. Later, in 1990 the State Government issued one more notification under section 4(1) of The Land Acquisition Act, proposing to acquire another land property of the petitioner and rejecting the earlier one. Thepetitioner raised objections before Land Acquisition Officer on the plea that; as one part of his land was already acquired anyfurther acquisition of his land is illegal and not justifiable. Not heading to the petitioners request, the authorities went aheadwith the process of acquiring property. Aggrieved by this petitioner filed a Writ Petition before the Bombay High Court againstthis acquisition.

The respondents stated that the petitioner�s land is of inferior quality so no project affected person has come forward toaccept this land there fore the land is being given back to the petitioner.

To this, the petitioner contended that he has been raising crops of Jawar, Sunflower, and Tobacco etc. over the land beforeits acquisition and hence any line of argument that the land was of inferior quality is unwarranted.

The Court observed that stand of the Government shows ignorance and lack of knowledge of the provisions of the LandAcquisition Act by the Acquiring Authority. The Land Acquisition Act does not permit the State Government to deliver back theacquired land which has vested in the State free from all encumbrances after possession has already been taken by the State

Government Section 48 of the Land Acquisition Act, 1894 empowers the State Government to withdraw from the acquisition ofany land of which possession has not been taken save and except the situation covered under Section 36. Once thepossession has been taken over by the State Government pursuant to acquisition proceedings, it is not open to theGovernment to withdraw from the acquisition. The Court held that the acquisition of petitioner�s land is final and irreversibleand there is no question of said land being delivered back to the petitioners even if it is assumed to be of inferior quality.

The Court also ruled that the once land has been acquired from the holding of a person for the purpose of resettlement ofproject affected person in accordance with part II of schedule A of Maharashtra� Resettlement of Project Displaced PersonsAct, 1976 the right of further acquisition of land from the holding of such holder for the self-same reason subsequently isexhausted and it is not open to the State Government or the concerned authority to repeatedly acquire the land forrehabilitation of project affected person form the holding of such land-holder. For the purpose of project affected persons uponissuance of notification under Section 11 of Act of 1976, only once the land can be acquired from the holding of landholder asper the schedule and any further acquisition of land form the holding of same will not be legal.

Finally, the Court quashed the said notification.

M/s Raj Ram Corn Products (Punjab) Ltd.� v. State of Punjab, Punjab Law Reporter CXXX (2002-1) 189

�V.K. Jhanji, J.

Water (Prevention and Control) Act, 1974 Sections- 24, 25.

Industry failing to set up an upgraded Effluent Treatment Plant:� Refusal of Board to renew Consent

The petitioner is an industry engaged in the manufacturing of maize starch including modified starches, destrine, liquid glucoseetc.� During the manufacturing process, the industry generated trade effluents. The Punjab Pollution Control Board grantedconsent through an order in 1975. The consent was renewed by the Board on the application of the petitioner. In 1993 theBoard before granting the renewal collected various samples at various stages from the industrial unit and came to theconclusion that the company had not met the parameters prescribed and refused to give the consent to the industry todischarge its effluents. When the industry failed to maintain its effluent treatment according to standards prescribed by theBoard�s order, the Board under exercise of power under 33-A of the Water Act directed the petitioner to close down itsindustrial unit and even asked the Electricity Authorities to disconnect the electricity supply to the industry. The petitionerindustry filed a Civil Writ Petition before the Punjab and Haryana High Court against the refusal of the Punjab State PollutionControl Board to give consent to the petitioner to discharge its effluents and to carry on trade operations. The challenge isalso against order of the Appellate Authority which also upholded the Board�s decision. The petitioner also challenged thenotification of 1994 which revised parameters regarding the trade effluent.

The counsel for the petitioner argued that the refusal of consent is absolutely illegal and unwarranted as the samples taken forthe analysis were not from industrial unit of the petitioner. The counsel for the petitioner further argued that the industry is



the analysis were not from industrial unit of the petitioner. The counsel for the petitioner further argued that the industry isdischarging its trade effluent into public sewerage and the tolerance of limit of BOD was 350 mg/ltr. This parameter wasreduced to 30 mg/ltr. through a notification in 1994 and the Board had no authority to revise the BOD limit qua of the effluentdischarged in the public sewerage. Moreover, it is the duty to of the Municipal Corporation to install secondary treatment plantin order to avoid unreasonable conditions upon the petitioner industry.

The Board submitted to the High Court that sample was collected in the presence of the agent of the petitioner. However, herefused to accept and sign the notice and data sheet. Moreover, the refusal of the consent was according the provisions ofthe Water Act. The Board denied allegation of the petitioner that the consent under Section 25 of the Act deemed to havebeen made unconditionally on the expiry of four months and the petitioner had not submitted application form complete in allrespects for obtaining the consent under Section 24 of the Act. Hence, the question of deemed consent does not arise at allon the part of the Board. It further contended that the direction under 33-A of the Act was passed in accordance with theprovisions of the Act. The Board justifying the 1994 notification, submitted to the Court that the BOD standards are fixed/modified from time to time by the Ministry of Environment and Forests keeping in view the public health, safety with an objectto provide clean and healthy environment. The petitioners has failed to establish adequate treatment plant so as to containthe pollutants within standards prescribed by the Boards.

The Court accepted arguments of the Board and observed �the only requirement under sub-section 4(b) of Section 25 of theAct is that when the Board is to refuse consent and must record reasons in writing. The order of the Board and an AppellateAuthority were based on analysis of the report.� The reasons stated by these�� authorities cannot be unreasonable orextraneous or not germane to the purpose of the statue which is to prevent and control pollution. Moreover, the Board isspecialized agency under Water Act the Court will not sit in appeal over its or substitute its opinion in the place of the Board.�The direction of the Board 33-A to the industry were based on the material record. Regarding the Notification the Court held

�the standards once fixed cannot be changed or modified by the appropriate authority keeping in view the public and safety.In law, the petitioner is duty bound to upgrade its treatment plant in such a manner that prescribed standard of BOD asamended from time to time is achieved and implemented.� The Court also held that the petitioner cannot take shelter behindthe fact that Municipal Corporation is not putting up appropriate secondary treatment plant.

The High Court finally held that industry should repair and upgrade the existing effluent treatment plant before it is allowedoperate manufacturing process so as to achieve the norms fixed by the Board for the for the such discharges. The Courtdismissed petitioner upholding the directions of the Board.

Balappa Basamanappa Kosji v. State �of Karnataka, AIR 2002 Kar. 44

G.C.Bhaskar and� A.V. Srinivas� Reddy, JJ.

Section 174 of Karnataka Municipal Corporations Act, 1976. Sections- 174

Karnataka Parks, Play fields, and Open space (Preservation and Regulation) Act, 1985Sections 2(g)

Allotment� of a play field for construction of a building.

�The residents Aiwan -E- Shahi Colony in Gulbarga filed the Writ Petition in public interest challenging allotment of a land bythe Corporation. It was alleged that certain area in the colony was reserved for open space and the same came to be vestedwith the corporation under Section 174 of Karnataka Municipal Corporations Act, 1976. The respondent, Municipal Corporationat order of the State Government granted allotment of the alleged site in the open space to a third party. The petitioneraggrieved by such an allotment filed this Writ Petition.�

The counsel for the petitioners argued that the open site is a park within the definition of Karnataka Parks, Play fields, andOpen space (Preservation and Regulation) Act, 1985 and alienation of the land earmarked for the purpose of developing into apark is prohibited and is null and void.�

The Court while elaborating the above Act, observed that the definition of a �aprk� is an inclusive definition. It would includeany land which is not covered by any building. The fact that the land in question was a piece of land not covered by anybuilding is not disputed. It would also include a piece of land maintained as a place for the resort to the public for recreation,air or light. It is not essential that the area must have been laid out as a garden with trees, plants or flower beds or as lawn oras a meadow.� Thus to understand it in any other way would amount to doing violence to the tenor of the definition.

Moreover the park is listed under list of parks by a Government Order under Section 3 (2) of the Act. The crux of the case waswhether a piece of land designed as a park by the State could divested for any other purpose by the local body on its own oracting� under the direction of the State. The Court held �any private property which vests in the Corporation by virtue ofSec. 174 of the Corporations Act, is held by the Corporations as a Trustee and in its capacity as a Trustee the Corporation isexpected to deal with and apply it only to sub serve the purposes of the Municipal Corporations Act and residents of at largeof the that corporation. Being a Trustee the Corporation had no legal right to barter any property that came to be vested in it,by virtue of the Corporation of Sec. 174 of the Corporation Act, to any third party. Sole purpose of vesting a certain land infavour of the Municipal Corporation is to ensure that the land concerned is put to a certain and a definite use in advancing theobject for the attainment of which the Municipal Corporations Act was promulgated. The land in question in the present casebelonged to a Co-operative society and the society parted with this piece of land on the understanding that it would used forpublic purpose which would in turn ensure to the benefit of the residents of the layout. The corporation having thus come intopossession of the land as a trustee could not have dealt with it as if it has acquired ownership over the land. The land is notonly divested for a purpose other than the one for which it was earmarked which is quite contravention of the statutoryprovisions of the Act but the land has also been alienated to the third respondent. The alienation of such piece of land by theCorporation is thus, without legal authority and therefore is not valid in law.

Manoj Kumar Roy v. Appelalte Authority AIR 2002 Calcutta 216

Ashok Kumar Ganguly. J.

National Environmental Appellate Authority Act 1997

The real issues for adjudication before the Court was to what extent and to which areas can a Tribunal or a quasi-judicial bodyexercise its jurisdiction? Was the Appellate Authority right in overriding the power of the Court on an issue appealed before it? Can



exercise its jurisdiction? Was the Appellate Authority right in overriding the power of the Court on an issue appealed before it? Canthe Appellate Authority un-der its Practice Direction or power to regulate its own pro-cedure and the procedure of Benches thereofin all matters arising out of the exercise of its powers or of the discharge of its functions?

The petitioners' main grievance in the present case was that, a showroom ofDigjam, a well-known concern in the textile business,situated close to their building had huge air-conditioning machines. The working of these air-con-ditioners causes air and noisepollution compelling the petitioners to seek redress by filing a complaint before the Pollution Control Board.

It was not disputed that initially certain complaints were filed before the Pollution Control Board and orders were also passed in thisregard. But, since that could not ad-equately redress the grievance of the petitioners, they ap-proached the Court through this writpetition.

The case had a long history of dispute before it was finally decided in the present case. The Divisional Bench of the High Court,which was designated as the Green Bench had ordered the Pollution Control Board to take fresh action against the use of the air-conditioner. ThePollution Control Board had passed an order on Oct' 7,1999 for closure of the air conditioning machines. reasonstated was that the air-conditioning machines \ being operated without erecting cooling towers and ( after these cooling towerswere erected, can the air-co tioners be operated.

The respondents appealed against this order with Appellate Authority. The main issue addressed in appeal was, 'whether the hot airdischarged from the conditioning machines create air pollution'. By the ' order dated May 15, 2001, the appellants were directe'install split type air-conditioning machines, so that pollution generated may not affect the people in the nei borhood of theShowroom for the time being. The ApJ late Authority again directed the Board to conduct an spection of the said Showroom by acompetent engin who is to see that the existing four machines were su cient to meet the requirement and whether two more rchines could be installed after assessing the impact ofthf two additional machines.

The real dispute in the present case then cropped i The petitioner challenged primarily the competence and jurisdiction of theAppellate Authority on an order of t High Court for closure of the air conditioning machinies. The question is, when the legislaturehas not conferrec power of review on the Appellate Authority, can the A pellate Authority clothe itself with the said power? Theanswer obviously, would be inthe negative. But the counsel for the Appellate Auhtority has handed over to the Court a list ofPractice Directions and read that 'the auhthority can entertain applicatio of reveiw or appeal or modiofication or order, if it is filedwithin a period of 30 days fromt he date of communication or knowledge of the order'.

The Court held on the above issues that in the name and style of Practice Direc-tions the Appellate Authority cannot con-fer itselfwith a power to review when the statutory provisions are totally silent and no power of review has been advisedly conferred onsuch authority.

The issues before the Court for adjudication was to what extent and to which areas can a Tribunal or a quasi judi-cial body exerciseits jurisdiction? Was the Appellate Authority right in overriding the power of the Court on an issue appealed before it? Can theAppellate Authority under its Practice Direction or power to regulate its own procedure and the procedure of Benches thereof in allmatters arising out of the exercise of its powers or of the discharge of its functions?

The Court held on the above issues that in the name and style of Practice Directions the Appellate Authority cannot confer itselfwith a power to review when the statu-tory provisions are totally silent and no power of review has been advisedly conferred onsuch authority. The Prac-tice Directions that were filed before the Court cannot be treated to override a judicial body unless anduntil pro-vided in a statute. Such inferior tribunals are to function in the bounds of law and this court forbids the Appellate Authorityfrom exercising its power of review on the ba-sis of the said clause and orders restoration of the earlier order of the Green Bench ofthis High Court.

K. M Chinnappa in T. N Godavarman Thirumalpad v Union of India

I. A No. 670 of 2001, Writ petition @ No. 202/ 1995Wild Life Protection Act 1972 Karnatakci Municipalities Act, 1964

The forests in the Western Chats of India are among 18 internationally recognized 'Hotspots' for bio-diversity con-servation in theworld. It was noted that Kudremukh Na-tional Park in which mining activities were being carried out was declared as a National Parkin terms of Sec. 35(1) of the Wildlife Protection Act 1972. The matter was re-ferred to the Central Empowered Committeeconstituted under Sec. 3 of the Environmental Protection Act 1986. The Committee after carefully considering all the views andsuggestions on the exceedingly rich biodiversity of the area and investment made by the KIOCL, had recom-mended that theCompany be asked to wind up its opera-tions within a period of five years or on the exhaustion of the oxidized weathered secondary

ore. It was clarified that the period of five years would commence from July 25, 1999 (when the original lease period expired).

One member of the Committee, Shri Valmik Thapar gave a dissenting note. According to him all mining operations must stopimmediately and the five-year period starting on July 25, 1999 must be treated as a 'Restoration and Winding up period' so that thecompany can restore all mined lands, plant indigenous species to protect the re-gion and return one of the World's finest forests.

The petitioners prayed the Court to direct the Ministry of Environment and Forests to withdraw the illegal 'tem-porary workingpermission' issued by it and stop mining activities; to direct Kudermukh Iron Ore Company Lim-ited to stop polluting the Bhadra riverwith open cast min-ing; to take action against KIOCL for illegal encroachment in the forests and for destruction of forests in theKudremukh National Park.

The Company contended that there was no violation of any law relating to forests and environment. Rule 24 (B) of the MineralConcession Rules, 1960, framed under the Mines and Minerals [Regulation and development] Act, 1957 authorized an extension oflease by another 25 years. Further, the draft notification under Sec. 35(1) of the Act was issued on September 2, 1987 and thefinal notifica-tion was published on June 16, 2001 under Sec. 35(4) of the Act, whereby the land under mining was specificallyexcluded. This in any event, (900 hectares of land) was outside the land covered by the Notification. All this make the land inquestion outside the purview of the opera-tions of all the Conservation Acts. Further the Company argued that the miningoperations were continued with an existing legal right to get a renewal, which had already accrued. The Company had entered intocontracts with foreign buyers and any stoppage would incur huge finan-cial implications and lead to impossibility of performance of



contracts with foreign buyers and any stoppage would incur huge finan-cial implications and lead to impossibility of performance ofcontract.

The Court studied in detail, various judgments given by the Apex Court in mining operations over the years. After deliberating on thephilosophy and past history of the Indian legal system, the Court seconded the recom-mendation of the Forest Advisory Committeeand allowed mining till the end of 2005 by which time the weathered secondary ore available in the already broken area would beexhausted. This is however, subject to fulfillment of the recommendations made by the Committee on ecologi-cal and other aspects.

Shobana Ramasubramanyam v. The Member Secretary, Chennai Metropolitan Development Authority - AIR 2002 Mad.125

Subhashan Reddy C. J., and K. P Sivasubramaniam, J.,

Air [Prevention and Control of Pollution] Act 1981, sec. 2(a)(b)

Constitution of India Art 226

Two writ petitions were heard together and it alleged sound pollution and vibration because of the operation of the heavy machineryused for digging during pile foundation. Protection is sought for invoking Art. 226 against the activities of Ramaniyam Real EstateLtd. asking direction not to carry on any piling foundation activities on their site so as to not cause environmental pollution to thenearby residents of Sriram Colony in Abiramapuram, Chennai.

Sriram Nagar of Abiramapuram is a residential locality. There are more than 75 houses with about 400 residents comprising infants,children, young and old. Amidst the houses, house property bearing door No. 74, corresponding to new No. 39, measuring 1 acrebelongs to M/s. Ramaniyam Real Estate who proposed to construct a �double basement+ground floor+8 floors of multi-storied�building approved by the government. M/s Ramaniyam Real Estate had entrusted the work of pile foundation to Mrs. Aruna,Properietrix, Saravana Pile Foundation.

The foundation work involved the driving of heavy machinery, heavy iron weights as hammer and concrete pipes were driven to thedepth of 70 feet for making way into the earth and the hammer drops from a considerable height for forcing the pile into the ground.The petitioners, who are members of the residents� Welfare Association of the Sriram colony, complained to the local police andChennai Metropolitan Development Authority. Reasons quoted in the complaint include the unbearable sound that exceeded theprescribed decibels, the consequent sufferance and also the vibrations resulting in damage to their buildings. The plea of thepetitioners is to ask the construction workers to use environmental friendly devices and to adopt safer and pollution freeequipments.

The Court appointed an Advocate Commissioner to inspect and report from the site. He found that though some buildings haddeveloped cracks they might not be wholly due to the noise generated within the construction area. On measurement of the noiselevel, it was found that three machines that were operating, generated 85.6 to 85.4 decibels and the same was above normal level.Adopting noise arresting or noise reducing measures could minimize the same noise level.

The residents� Association questioned the findings of the one-man Commission subsequently and the Court appointed a two-man Commission. The two-man Commission reported that the noise level was in excess of any standard and disturbing theconscience of the neighborhood. Vibrations could be felt alongside roads and buildings and also by the nearby residents. TheAssistant Engineer, TNPCB too, recommended that the present system of piling be avoided as the site is amidst a cluster of

buildings.

The argument advanced by the counsel for the constructing company was that, the litigation was with an ulterior motive andnot in public interest. Also, the company had already invested thousands of rupees on acquiring the piling machines. The courtrejected these arguments. It held that in today�s emerging jurisprudence environment rights, which encompass a group ofcollective rights, are described as �third generation rights�. The first generation rights are political, as found in the convention onPolitical Rights, while the second generation are social and economical. The petitioners were complaining about excessive noise rightfrom the beginning, but the authorities turned a deaf ear to their cause and hence their approach to the judiciary is substantial.There is no other option for the Court except to close and restrain the activities of the foundation by using the pile driven system.Instead, the work could be carried on by bore driven technique or any method that generated less noise.

M. P Rambabu v. The District Forest Officer AIR 2002 A. P� 256

S. B Sinha, C. J., and V. V. S Rao. J.,

Constitution of India.� Arts. 21, 300-A, 226, 141

Environment [Protection] Act 1986 Sec. 5

The questions in this case were whether Prawn farming could be allowed in fresh water and what the liabilities of a prawn farmer towater contamination are? - What are the liabilities of these farmers on the rights of neighbours to draw fresh water from a tubewell?� - Whether an adjacent owner of agricultural land can maintain a writ petition on the ground that his land had become salineand unfit for agriculture on account of extensive use of his neighboring land for prawn culture? - How far (and if any) prawn, shrimpculture and other types of aquaculture raised both in brackish/saline/fresh water cause environmental pollution? - Is the primaryquestion involved in this batch of writ petition and whether in any event, the law controlling regulation of environmental pollutionshall be applicable?

Two batches of writ petition were jointly decided. One by a group of prawn farmers who alleged that forest officials illegallyinterfere in their day-to-day activity without jurisdiction, either by demolishing the tanks erected for that purpose or refusing torenew or grant permission for the construction of tanks. The second group of the writ petitioners were small agriculturists, who wereunable to carry on their agricultural activities due to the fact that the surrounding lands were being used for prawn and shrimpculture and their lands were rendered unfit for agriculture.� The petition was also followed by an appeal for permission by manyfarmers who wished to shift to prawn cultivation as a major portion of the surrounding lands had already shifted their cultivation andthis was the best available option for them under the present circumstances.

It was submitted before the Court that the practices of prawn, shrimp or aquaculture were carried on in two methods: onewith fresh water from the rivers and the other with brackish or saline water from the sea.� Fresh water culture needs water fromborewells. The extensive use of ground water has turned the water saline, affecting portable water. It was also submitted thatchemicals were being used extensively, which affects the neighboring lands to a large extent. Lime and dolomite were also beingused. As a result, the fertility of the agricultural lands is affected.



To substantiate their claim, they argued that the owners of the lands being agriculturists could not use the same forpurposes other than agriculture without obtaining permission from the competent authority. Secondly, according to the decision ofthe Apex Court in S. Jagannath v. Union of India (AIR 1997 SC 811), a law has been laid down wherein an aquaculture authority hasbeen constituted and functioning.� Carrying on of prawn, shrimp or aquaculture without obtaining its prior permission must be heldto be illegal. The argument on behalf of the shrimp farmers was that agriculture included prawn and aquaculture farming and no lawprohibits fishing or rearing of fish on an agricultural land.� It was not disputed in this case that within the CRZ or within the areanotified under the Wildlife Protection Act 1972, shrimp/prawn culture are prohibited.� The lands in dispute in this writ petition wereoutside the scope of CRZ or Wildlife Act.

The Andhra Pradesh (Telangana Area) Land Revenue Act 1803, No. 7, clause 7, the Board of Revenue Standing Orderprovides for permission to use water from Government sources. Government sources exclude natural pools and minor streams. Anyprivate individual wishing to draw water for irrigation from a government source for a private purpose must apply to the Collector forpermission, stating distinctly the nature and dimensions of the proposed work and the precise locality selected for it. On receivingsuch an application, the Collector will direct the Tahsildar of the taluk to assess the situation and the work and invite objections andcomplaints from local people directly affected from the proposed work and also with the Public Works Department.� After this, thegrant permission to execute the work may be given.

The Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963, levies tax on the use of agricultural land for non-agricultural purposes. According to this Act agriculture means [Sec. 2a]; � raising of any crop or garden produce, the raising oforchards; or the raising of pasture; commercial purpose means a purpose connected with the undertaking of any trade commerceor business and is not an industrial purpose. Further, the Act says that �Deep Sub Soil Water Right� is the property of theGovernment. Hence for the purpose of prawn farming, water right of the bore wells would mean the property of the State.

Agriculture would also include agriculture education, research and protection against pests and prevention of plant diseases.It would further include ponds, prevention of cattle trespass, water, irrigation, canal, drainage and embankments, water storage andwater power, land and its improvements, loans, tenancy, and rent.

Further, in C.I.T v. Benoy Kumar [AIR (1957) SC 768], the Supreme Court interpreting Agricultural Income Tax had put forthtwo conditions:

1. That the land from which it is derived should be used for agricultural purposes; and

2. That the income derived from such land is assessed as agricultural income under the Income Tax Act.

Thus, the authority of the State in safeguarding the right of agricultural lands from non-agricultural use is appropriate inlaw.� The Court held that any submission to this effect, which any restriction imposed in the use of such lands for any purposewhatsoever, would amount to deprivation of property under Art. 300-A of the Constitution, is liable to be rejected.

Further, on the argument that any sort of deprivation on the right to trade in prawn farming would affect the right to lifeunder Art. 21 thereby violating the means of livelihood of many farmers, the Court held that unless the trade or profession isenvironment friendly, such trade had no right over the societal right to clean and healthy environment.

The Court went one step further and held that �Deep Underground Water� is the property of the State under the doctrine of PublicTrust. The holder of land has only a user right towards the drawing of water in tube wells. Thus, neither his actions nor his activityin any way can harm his neighbors.

A person who holds land for agricultural purposes may, therefore subject to any reasonable restriction that may be made bythe State, have the right to use water for irrigational purposes and for that purpose he may even excavate a tank.� But under nocircumstances he can be permitted to restrict flow of water to the neighbours land or discharge effluents and contaminate wateraffecting the right of his neighbour to use water. Such an act would violate Article 21 of the Constitution.� The Public has a rightunder the doctrine of Public Trust to enforce a right to prevent infringement of his interest in which the public, at large are affected.

The Court once again voiced the views of the Supreme Court in the Jagganath case and held that this judgement, apart fromapplying to the CRZ area and the Wildlife sensitive area would also apply to all sorts and types of land.

M/s Vijayanagar Educational Trust v. Karnataka State Pollution Control Board, Bangalore AIR 2002 Kar. 123

A. V. Srinivas Reddy, J.,

Water [Prevention and Control of Pollution] Act 1974 Sec. 25 (7) [Deemed Consent]

Environmental Protection Act 1986 Sec. 3

Environmental Protection Rules 1986 R. 33 .

When there is a threat of non-negligible danger to the environment, whether deemed consent is applicable in such cases even afterthe expiry of 120 days � the issue in this case. The petitioner, a trust, wanted to establish a medical college and hospital close to ariver and applied to the PCB for permission, which was refused on controversial grounds. The petitioner aggrieved by the refusalorder of the Board appeals to the National Environmental Appellate Authority, which rejects its appeal for deemed consent. The HighCourt on review finds fault in the procedure followed by the PCB and grants deemed consent.

T he petitioners were a registered Trust, constituted with the object of imparting education by setting up schools, colleges,technical institutions etc. and recognized as a minority educational institution by the Government of Karnataka. The petitioner, witha view to establish a medical college under the name and style of M/s. Infant Jesus Medical College and Hospital at Lingenahali,Nelamangala Taluk, Bangalore Rural District approached the State Government for grant of certificate, which was given in 1998.Thereafter, the Trust brought land measuring 21 acres by obtaining requisite prior permission under the Karnataka Land Reform Act,1961. Under Sec. 95 of the Karnataka Land Revenue Act (1964), an application to the Deputy Commissioner, Bangalore Rural Districtwas made for conversion of agricultural land for non-agriculture purpose and the same was granted in 1999. The BangaloreMetropolitan Regional Development Authority approved the plan for conversion in 2000, subject to approval from the KarnatakaState Pollution Control Board.

The KSPCB had already received an application in 1999, but replied only in 2000, with a letter saying no responsible officerwas present during the inspection and there was confusion on the identification of the site. In reply, the Trust offered for aninspection at any time convenient to the Board officials. The petitioners in turn, proceeded with the construction and entrusted thework to M/s Larsen and Tourbo Ltd. and till the case came up for hearing had already spent Rs. 5 crores.



Indian Express, a national daily carried an article dated May 28, 2000 stating, �the construction of the medical college is

likely to pollute the Kumudavathi river, which is located near the proposed construction. Kumudavathi flows into theThippegondanahalli reservoir and there is every likelihood of pollution as this Reservoir is one of the major sources of drinking waterto Bangalore city.�� The KSPCB, which was all the while silent on this aspect, woke up after this publication and issued an orderdated June 9, 2000 refusing to grant permission to establish a medical college. In the meantime, a writ petition came up before aDivision Bench of the High Court for orders and the Court ordered halt of the construction work. The petitioner appealed to theNational Environmental Appellate Authority against this order. At the same time a writ petition was filed in the Supreme Court.Having taken this into consideration the Division Bench dismissed the said petition.

The Supreme Court was confronted with the challenge of the impugned order of the PCB stopping the construction work. Theissue was that, construction of the building began on the basis that after the expire of 120 days, the application for consent fromthe Pollution Control Board under the Water Act could be deemed as consent. The Apex Court held that though Sec. 25 (7) of theWater Act ensures deemed consent, the same could not be applied to cases where there is a threat of environmental protection.The right to clear water guaranteed to every citizen of the country necessitates intact preservation of the precious water sourcesfor posterity. This important ruling and observation by the Apex Court puts to rest the loophole in the deemed consent provision.While the Supreme Court referred the matter back to the Appellate Authority, the Appellate Authority dismissed the contention ofthe petitioners and the appeal.

The above quoted writ petition was filed for reviewing the case once again. Against this writ petition, the KSPCB filed astatement of objections inter alia contending that the medical college would spell danger to the environment and would affect inflowof water into the Thippagondanahalli Reservoir, thereby exposing the citizens of Bangalore to scarcity of water.

On the basis of the averments made in the writ petition and annexures and also the statement of objections filed on behalf ofthe Board, the Court held that:

1. On the aspect of deemed consent under clause 7 of Sec. 25, the court observed that the consent referred to in this sectionshall be deemed to have been given on three conditions:

a) shall not have been given or refused earlier;

b) a period of four months ought to have expired after making of the application;��

c) this application should be complete in all respects.

On an application establishing that these three factors do exist in favour of the applicant, it would have to be deemed thatthe permission was given unconditionally, immediately on the expiry of the four months.

In the present case, the application of the petitioners was presented on November 27, 1999. Till February 9, 2000 when theBoard wrote a letter to the petitioner to coordinate with it and organise a site inspection nothing had transpired. Later on May28, 2000 after the newspaper report and the filing of Public Interest Litigation on June 9, 2000, the Board refused to grantconsent. This refusal order was passed way behind the four months schedule prescribed under the Water Act. The letter by theBoard for organising a site inspection was not an order by the Member Secretary but a letter written by a Board official andhence cannot be treated as a notice under Rule 33(2). The letter, refusing grant of consent did not even mention the reasonfor refusal. The Appellate Authority refused to review the grant on the basis that the application by the Trust was incomplete.The Board having acted contrary to the provisions of the said Act, the consent in all respects shall been deemed to begiven.��

2. The next issue for adjudication was whether the Board, despite the deemed consent would still refuse the grant ofpermission under Sec. 25.

The Court referred to the M. V Nayudu case and the polluter pay principle and the Vellore Citizen�s Welfare Forum case. Itwas observed by the Court that the test of legal scrutiny would fail in this case as the petitioner Trust was never heard nor anyopportunity was given for discussion before the refusal order was issued. Further, the area on which the Trust was constructingwould be deemed to be an environmentally and ecologically sensitive area was not accepted by the Court as the same was notnotified under the Environmental [Protection] Act, 1986 rule 5 by the Ministry.

�� 3. Whether the activities of the petitioner pose a �non-negligible� risk to the environment:

The Court held that on this point the Board has the authority to check and balance any threat to the environment from theTrust Building. Deemed consent would be reissued with condition and it was not easily ascertainable that there was any threatpotential from the petitioner�s activities. Further, the Board has the right to apply precautionary principle wherevernecessary.��

Forest Friendly Camps Pvt. Ltd. v State of Rajasthan� - AIR 2002 Raj. 214

P. P. Naolekar and A. C. Goyal, JJ.,

Wild Life [Protection] Act 1972; Sec. 28 (2)

This case questions the power of the Wildlife Warden under Sec. 28 of the Wild Life [Protection] Act (1972) to grant permits for thedevelopment of tourism inside a National Park.� - To what extent this power involves the power to introduce new systems fortourist rides inside the National Park? - How would such a system be valid under the law was the question answered by the Court inthe present case.

The Appellant, Forest Friendly Camps Pvt. Ltd is the owner of hotels and runs the business of arranging tours for touristsfrom all over the country and the world. The State of Rajasthan established a Tiger Project in the vicinity of Ranthambore NationalPark to attract tourists to view the tigers in the sanctuary. Upto 1997, any person was entitled to enter or reside in the Park areafor the purpose of tourism by obtaining a permit and payment of a prescribed fee. There was no restriction on vehicles too. Duringthis period, the State of Rajasthan encouraged eco-tourism and helped in setting up hotels and resorts in the Park area.

Under the Wildlife Rules 1977, the State of Rajasthan introduced the �roster system� for regulating tourism business bycontrolling vehicular entry of private vehicles. The roster system allows the registration of vehicles, tour operators, tourists andhoteliers thereby forming a common pool for persons, who cater to the tourists� needs in the National park.� The roster systemwas under operation for two seasons, viz. 1997-98 and 1998-99. This system came under severe criticism for various reasonsincluding charges of high rent by the driver, cutting the drive short, misbehavior by the guides and mismanagement of tourists.



including charges of high rent by the driver, cutting the drive short, misbehavior by the guides and mismanagement of tourists.

Subsequently, the Government of Rajasthan came up with a new policy for an eco-friendly development, to restrict thenumber of vehicles on a particular route, to have a system of registration for vehicles, provide guides with training etc.� Sevenroutes were identified on which tourist vehicles like Maruti Gypsies and Minibuses were permitted after registration with the office forRs. 5000. Several safeguards in respect to type and quality of vehicles and pollution control certificates were prescribed.

The �roster system� is challenged in this writ by the appellant on the ground that � it hampers the tourism andconsequently results in affecting the earning of the foreign exchange. The system also affects the transparency in allocating licenseand registration to tour operators.� Sec. 27 provides for restriction of entry into the sanctuary, but the restriction is not absoluteand is subject to the provisions of Sec. 28, which provides for grant of permit.

Under Sec. 28, the Chief Life Warden, may on application, grant to any person, a permit to enter or reside in a sanctuary forall or any of the following purpose:

a) Investigate or study of wildlife;

b) Photography;

c) Scientific research;

d) Tourism and

e) Transaction of lawful business.

The Court held that the �roster system� and its regulations are well within their jurisdiction and valid in law. The authorityto control and regulate vehicles is within the powers, under Sec. 28 of the Wildlife Act. At the same time, it would be just and fairto maintain a careful balance between the preservation of wildlife in forest and sustainable development on eco-tourism. Tourismactivities in no way shall adversely affect the wildlife and environment. Generation of funds is one aspect, while maintainingecological balances the other. All such tourism activity, which directly or indirectly contribute to the conservation of nature andbiological diversity and which benefits local people and communities should be promoted. Tourism should be environmentally,economically, socially and culturally sustainable.

Thus, viewing the pros and cons of the present system, the Court held that within the roster system itself, changes shouldbe made so as to provide more concession to the tour operators and benefit the influx of tourists to the National Park.

Ran Singh v. State of U. P� - 2002 AIHC 1860 [Allahabad High Court]B. K Rathi, J.,

Land Acquisition Act 1894, Sec. 23 (1) .

The question before the court was whether the period of limitation applies in case of claim for enhancement of compensation underthe Land Acquisition Act? The Court held that the limitation is immaterial in all such cases concerning compensation due toacquisition.

The Ghaziabad Development Authority (U.P) framed a scheme for the development of the city within the municipal limits and

for that purpose, the land of the appellants and of other persons was acquired. The notification, under Sec. 4(1) of the L. A Actwas issued on December 28, 1963 and the notification under Sec. 6 was issued on September 22, 1986. The possession of the landwas also taken. The award was delivered by the Land Acquisition Officer on September 22, 1986. Against the award, the request ofthe appellants reference was made before the District Judge, Ghaziabad. A compensation @ Rs. 8/- per sq. yards was awarded tothe appellants for their acquired land. 30% solitium was also awarded along with 9% interest.

Dissatisfied with the award, the appellant has filed this appeal claiming that the compensation be awarded @ Rs. 40/- per sq.yards. Later on, the memo of appeal was amended and the claim was enhanced and compensation @ Rs. 100/- per sq. yard wasclaimed for, which the required court fee has also been paid.

In an earlier appeal before the same Court, other tenure holders have been granted compensation @ Rs. 84 per sq, yard andthe argument for the appellant was that nothing short of the same should be given to him. The contention against this appeal wasthat the claim was time barred and beyond the limitation period.

Inferring the principle laid down by the Apex Court in Bhag Singh v. Union Territory of Chandigarh [AIR (1985) Sc 1576], theHigh Court held that the appellant is entitled to compensation @ Rs. 84 per sq. yard, notwithstanding the ground that theenhancement of the claim has been made after the expiry of the period of limitation. Limitation should not be a restraint in awardingthe market value for any land acquired. To deny this benefit to the appellants would tantamount to permitting the StateGovernment to acquire the land of the appellants on payment of less than the true market value. Apart from this, the appellants arealso entitled to the solatium @ 30% of the compensation and interest @ 9% on the enhanced amount of compensation.

M. C Mehta v Kamal Nath [2002] 3 SCC 653M. B Shah and Doraiswamy Raju, JJ.

Art. 32 of the Constitution

Civil Procedure Code, 1908, Sec. 11

This Judgement follows, the Supreme Court verdict in 1997 against Mr. Kamal Nath and Span Motel for illegal establishment of aresort on the banks of river beas. In the present case, the Supreme Court imposes exemplary damages to the tune of 10 lakh onSpan Motel Ltd. for environmental degradation and for altering the course of the river Beas. The Court further keep the option ofimposing additional fine under the principle of 'polluter pays'.

The Himachal Pradesh government was also pulled up for 'patent breach of trust' by leasing ecologically fragile land to the motel,which is located in Kullu Manali. Significantly the apex court applied the 'polluter pays' principle to the case with the liability forharm to compensate not only the victims but also the cost of rectifying the damage done to the environment and reversing theaffected ecology.

The Supreme Court on the earlier occasions [1997 1 SCC 388] after adverting to the pleading relevant documents and the technicalreport of the Central Pollution Control Board, enumerated the various activities of Span Motels considered to be illegal andconstituting 'callous interference with the natural flow of River Beas' resulting in the degradation of the environment and for thatpurpose indicted them with having 'interfered with the natural flow of the river by trying to block the natural relief/spill channel of



purpose indicted them with having 'interfered with the natural flow of the river by trying to block the natural relief/spill channel ofthe river'. Equally, the Himachal Pradesh Government also was held to have committed patent breach of public trust by leasing theecologically fragile land to the Motel. It is only on such finding, the 'polluter pay principle' with liability for harm to compensate notonly the victims but also the cost of restoring the environmental degradation and reversing the damaged ecology was held applicableto the present case. Those findings rendered earlier were held to be 'final and no argument can be permitted to be addressed in thatrespect'. Therefore, not only it is impermissible for the Motel or anyone else to claim for a reversal of those findings or anyreconsideration of the nature, character and legality or propriety of those activities of the Motel but the Supreme Court is bound bythem.

The Span Motel on its part in the present case pleaded for reopening the facts of the case as it argued that the case decided in1997 was not based on fact relevant to the case. The Court answered the argument in negative and rejected the plea under therule of res judicata. The Court held that the findings given in a petition at one stage and later held final, cannot be challenged at asubsequent date. The earlier judgement had found the Motel guilty for environmental degradation by constructing walls and bundson the river bank and in the river bed, as detailed therein, had interfered with the flow of the river. Further the Court had issuedfresh notice to the Motel, so as to show cause against proposed imposition of exemplary damages in addition to the damagespayable by it under the main judgement. The Motel in question pleaded that it had committed no illegalities and that, thereforelevying any exemplary damages against it would be unjustified.

In the present case the Supreme Court held that, the various laws in force to prevent and control pollution and protect theenvironment and ecology provide for different categories of punishment in the nature of imposition of fine as well as of imprisonmentor either of them, depending upon the nature and extent of violation. The fine may be imposed alone, and may extend even to onelakh of rupees. Keeping in view pf all these and the very object underlying the imposition of imprisonment and fine under the relevant

laws to be not only to punish the individual concerned but also to serve as a deterrent to others to desist from indulging exemplarydamages, it would be both in public interest as well as in the interest of justice to fix the quantum of exemplary damages payable bySpan Motels Pvt. Ltd. at rupees ten lakh only.

Further the Court held that, this amount is being fixed keeping in view the undertaking given by them to bear a fiar share of theproject cost of ecological restoration which would be quite separate and apart from their liability for the exemplary damages. Thequestion relating to the said quantum of liability for damages on the principle of 'polluter pays', as held by the Supreme Court againstSpan Motel Pvt. Ltd. and undertaken by them, will be determined separately and is left open for the time being. The Court held thatthe amount of special damages of ten lakh of rupees, shall be remitted to the State Government in the Department of Irrigation andPublic Health to the Commissioner/Secretary for being utilised only for the flood protection works in the area of Beas river affectedby the action of Span Motels Pvt. Ltd.

Moti Lal v. Central Bureau of Investigation and others JT 2002 (4) SC 31M. B Shah and B. N. Agrawal, JJ.

Wild Life [Protection] Act, 1972, sec. 9,39,44,49,51,57 and 58

Indian Penal Code, 1860 Sec. 429, 379 and 411

Delhi Special Police Establishment Act. Sec.3,5 and 6

The short question involved in this appeal was whether the CBI was authorized to investigate an offence, which is punishable underthe Wild Life [Protection] Act, 1972 as it was contended in the present case that the Wild Life Act is self contained code?

The appellant, a resident of Delhi, was arrested in connection with the offence punishable under the Wild Life Act. It was alleged

that the officers of the sales tax department conducted checking of a truck at Mohan Nagar barrier in district Ghaziabad on 19th

December 1999 and a bundle of cotton cloth was found therein which contained 50 skins of leopard, 3 skin of tiger and 5 skin ofjungle fox. On receipt of the said information, officer of the forest department arrived at the spot and seized the skins under sec. 50

of the Wildlife Act. Driver and Conductor of the truck were taken into custody and a FIR was lodged. By notification dated 21st

March 200 the central government transferred the case to Delhi Special Police Establishment.

This order of transferring the case was challenged by filling criminal misc. writ petition no. 6830 of 200 before the High Court ofAllahabad with prayer that the appellant be released forthwith.

During their argument the appellant submitted that the Wild Life Act is a special law as understood under Sec. 5 of the Cr. P. C,1973 and it contains comprehensive provisions for investigation, inquiry search, seizure, compounding of offences, trial andpunishment and therefore the Delhi Special Police was not empowered to investigate the case. The respondent on its behalf reliedon the Judgment on CBI v State of Rajasthan 1996 9 SCC 735 to support the transferring of the case to the CBI. Sec. 5 of the Actwas complied with and the State of UP had also issued necessary consent order, as required under Sec. 6 of the said Act.

The Court based on the above provision held that there was no substance in the argument that the CBI had no powers toinvestigate such matters, even if the provision of the special Act come in conflict with the general laws. The scheme of section 50of the Wild Life Act makes it abundantly clear that police officer is also empowered to investigate the offences and search and seizethe offending articles. For trail of offences, Code of Criminal Procedure is required to be followed and for that, there is no otherspecific provision to the contrary. In view of the above matter, the Court held that, there was no substance in the contentionraised by the learned counsel for the appellant that sec. 50 of the Wild Life Act is a complete Code and therefore, CBI would havenmo jurisdiction to investigate the offences under the said Act.


BSES limited and another v. Union of India AIR 2001 (1) Bom. C. R 394B. P Singh, C. J. & S. Radhakrishnan, J.

Free Legal Aid Cell v. Governmetn of NCT of Delhi AIR 2001 Delhi 455



Free Legal Aid Cell v. Governmetn of NCT of Delhi AIR 2001 Delhi 455

Ravi S.P and S. Unnikrishnan vState of Kerala O.P no. 3581 Ker. 2001

A.P Gunnies Merchants Association v. The Government of A. P AIR 2001 A. P 453

Sayeed Maqsood Ali v The State of M. P AIR 2001 MP 220

Smt. C Uma Devi v Government of A. P AIR 2001 A. P 460

Union of India v. National Hydroelectric Power Corpn

N. R Nair v. Union of India AIR 2001 SC 2337

M. C Mehta v Union of India AIR 2001 SC 1846

Goa Foundation v State of Goa AIR 2001 Bom. 318

M/s Stella Silks Ltd.v/s State of Karnataka AIR 2001 Kar. 219

K. R Krishnaiah v. Mandal Executive Magistrate, Muthukur AIR 2001 A. P 190

Goa Foundation, Goa v Diksha Holding Pvt. Ltd AIR 2001 SC 184

Nitin Walia v. Union of India AIR 2001 Delhi 140

Biju.V.G. Vs. Thalassery Municipality and others

BSES limited and another v. Union of India AIR 2001 (1) Bom. C. R 394B. P Singh, C. J. & S. Radhakrishnan, J.

The petitioner herein, BSES Ltd, is a company registered under the Indian Companies Act, 1913, having a thermal power station atDahanu, in the State of Maharashtra, has challenged the decision of the Dahanu Taluka Environment Protection Authority {DTEPA],an authority constituted under the provision of section 3 (3) of the Environmental Protection Act, 1986, whereby it has beendirected that the petitioner to instal a Flue Gas Desulphurisation {FGD} plant for environmental safety and protection and for thewell being of Dahanu. It has been directed to start the installation of the FGD plant within a period of 6 months, and to complete thework within a reasonable time.

The petitioner had preferred an appeal beofre the MoEF, Govt. of India, against the impugned order of the DTEPA, but the same wasnot entertained. Thereafter, the petitioner had filed a review petition before DTEPA, the same was rejected, on observing that therewas no provision for a review, and additionally, no new material had been placed before the DTEPA, justifying a review.

The MoEF, in June 1991, with a view for the need for protecting the ecologically sensitive of Dahanu Taluka, and to ensure that thedevelopment activities are consistent with principles of environment of environmental protection and conservation, has declaredDahanu Taluka, in the District of Thane [Maharashtra], as an ecologically fragile area, and has imposed restrictions on the setting upof industries which have detrimental effect on the environment.

It is well known that local economy of Dahanu is totally dependent upon the orchards, fisheries, and minor forest produce, as it is anecologically fragile area. By the aforesaid notification industries have been classified under three caregories, viz., Green, Organ andred, for the purpose of permitting/ restricting such industrial activities. In Green category are industries that can be considered bythe Maharashtra Govt. agencies for approval of the MoEF, Govt. of India. Even in Green category, only those industries that do notuse coal in their manufacturing processes are to be permitted. In Organ category, those industries are permitted which have properenvironmental assessment and adequate pollution control measures in sites that have been approved by the MoEF Govt. India. TheRed category contain list of industries that cannot be permitted in Dahanu Taluka and includes 'industries based on the use ofcoal/coke'.

The petitioner BSES ltd, initially was a licensee for distribution of electricity under sec 3 of the India Electricty Act, 1910, but since1976, as a condition of the licence, it was required to erect its own 500 MW Power Station for direct supply to its licensed area ofdistribution. In 1988, the Govt. of Maharashtra gave its clearance to te BSES Ltd to set up the Thermal Power Station at a site inDahanu on the conditions, that all efforts shall be made to obtain gas, as a preference to coal, and further shall install Flue GasDesulphurisation Plant with 90 % efficiency. There shall be continuous monitoring of emissions and a chimney with a stack height of275 meters shall be provided.

The main contention of the petitioner was that, being a World Bank project, the Bank, while granting financial aid had made anindependent evaluation of the project for equipmen, and on the basis of such evaluation had concluded that considering the lowsulphur content in Indian coal, the power plant could function well within the stringent ambient air quality guidelines stipulated bythe Indian Govt. The grant of permission to the petitioners for establishing a 500 MW thermal power station was challenged before

this court by the Bombay Environmental Action Group, which was ultimately disposed by the Bombay High Court, in 1990 after dulyconsidering the merits of the project, with the needs to protect the environment.

The Court observed that, environmental issues are relevant and deserve serious consideration. But the need of the environmentrequire to be balanced with the needs of the community at large and the needs of a developing country. If one finds, as in thiscase, that all possible environmental safe-guards have been taken, the check and control by way of judicial review should thencome to an end. Once an elaborate and extensive exercise by all authorities and expert bodies is undertaken and effected and itsend result judicially considered and reviewed, the matter thereafter should in all fairness stand concluded. Endless arguements,endless reviews and endless litigation ina matter such as this, can carry one to no end and may as well turn counter productive.While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as weel cease to be onPublic interest any further.

It is sufficient to observe that it is primarily for the government concerned to consider the importance of public projects for thebetterment of the conditions of living of the people on the one hand and the necessity for the preservation of social and ecologicalbalances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in thelight of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts andpublic workers and strike a just balance between these to conflicting objectives. The Court's role is restricted to examine whetherthe government has taken into account all relevant aspects and has neither ignored nor overlooked any material considerations norbeen influenced by extraneous or immaterial considerations in arriving at its final decision.



The same principles must apply to the case in hand. MPCB which consists of experts, has considered all aspects of the matter in thelight of the special status of Dahanu, being ecologically fragile area. The power plant should be given the go ahead only if it complieswith the installation of the FGD plant.

The Court finally held that considering the technical position, any further interference by the Court in this writ proceeding would notbe justified.

Free Legal Aid Cell v. Government of NCT of Delhi

C.W. P Sno. 4683 of 2000 D/23-7-2001.

Decision of High Court of Delhi (Reported - AIR 2001 Delhi 455) Arijit Spasayat, CJ, and D K Jain J

Constitution of India - Art. 21 -Environment (Protection) Act 1986 - S. 25 The Noise Pollution (Regulation and Control) Rules, 2000

In this notable judgment, the court referred to the timely challenges of Noise Pollution during festivals and marriages. The courtopined " the effect of noise on health has not yet received full attention of our judiciary, which it deserves. Pollution being wrongfulcontamination of the environment which causes material injury to the right of an individual, noise can well be regarded as pollutantbecause it contaminates environment causes nuisance and affects the health of a person and would therefore, offends Art. 21 if itexceeds a reasonable limits".

This is a public interest petition filed on behalf of an association of Public Activists. The main grievance in this petition was that theresults of display of fireworks are prime cause of concern and impact on health of adults as well as children. Noise pollution is causeddue to use of high sounding explosive fireworks and other blaring sound production devices and the effect of the same results inpollution in sound, which is hazardous. It is also submitted further to the court that because of indiscriminate use of loudspeakers,nose pollution has become a routine affair affecting mental as well as physical health of citizens.

There is noise pollution notwithstanding specific instructions issued by the Deputy Commissioner of Police, Delhi. It ishighlighted that manner in which sound pollution is being caused and the impact of such sound pollution on the health of the peopleis a cause of great concern. Pollution being wrongful contamination of the environment which causes material injury to the right ofan individual, noise can well be regarded as a pollutant because it contaminates environment, causes nuisance and affects thehealth of a person and would therefore, offend Art. 21 of the constitution.

The Pollution control Boards and the Bureau of Indian Standards both have working on fixing new standards of noise pollution levels.As different levels attempts are being made to develop gadgets that would control noise at sources. Researchers on noise say thatnoise levels in excess of 90 db for continuous periods can cause loss of hearing. A single exposure of 150 db is said to causepermanent injury to the ear's internal mechanism.

In conclusion the Hon'ble court directed that:

1. The government should implement the noise norms strictly in letter and spirit 2. Separate courts regarding noise pollution may be established 3. All district magistrates should be empowered to issues prohibitory orders under sec. 144 of Cr.P.C to limit the hours for the use ofloudspeakers.4. To make the subject of environment protection compulsory in schools and colleges and also at the university. 5. Both central and state governments must work together to enact legislative measures to prevent the fast growing menace6. Use of firecrackers in religious festivals, marriages, processions etc., shall be properly regulated 7. It shall be the duty of the area SDM's to see that Noise Control Rules are strictly adhered to and any default in this regard will betreated as misconduct, liable for disciplinary action besides action for disobeying court's order.

Ravi S.P and S. Unnikrishnan v. State of Kerala O.P No. 3581 Ker. 2001

P. K Balasubramanyan J. and M Ramachandran J.

Environmental Protection Act, 1986

The Environmental Impact Assessment, Notification, under the EPA, 1994

The Public Hearing Notification, under EPA, 1997

This writ petition, filed in public interest, alleged that the Kerala State Electricity Board had awarded a contract of constructing aDam across the Chalakudy river, without following the procedure established by law--The award of the contract was challenged onthe basis of not fulfilling the norms as established for the contract, based on turnkey basis- the Board failed to conduct a publichearing and an Environmental Impact Assessment for the project, hence the award of the contract should stands suspended orstayed.

The Kerala State Electricity Board took a decision to construct a Dam at Athirampilly across the Chalakudy river and establish aHydro Power generating project. The Board formally sought the permission of the State government. While seeking the permission ofthe State Government, the Board contemplated that if the project were to be approved, the construction and commissioning had tobe on turn key basis and the bidder was to provide financial package for the construction and completion of the project. TheGovernment granted the permission specifically referring to the financial package and the completion of the project on a turnkeybasis. The Board, thereupon invited pre-qualification bids. It was intended to be a global tender. It was specifically mentioned thatthe project was to be commissioned on a turnkey basis with a financial package. The Board distributed the tender invitation to 117companies. Only 8 of them submitted the pre-qualification bids. The Board found that only four of the tenders were pre-qualified.Out of the four, the consortium of HCC-BHEL was awarded the Contract.

The present PIL was filed in the High Court challenging the project on the following grounds:

1. The petitioners expressed concerns about the feasibility and viability of the project, about the financial ability of the Board to putthrough the project. They alleged impropriety in the award of the contract. There is also a ground that instead of going in for such aproject which, according to the petitioners, would not be viable, the Board would be better advised to take up rectification, repairand improvement of the existing Hydro Electric projects and to eliminate huge losses in transmission now suffered, to meet the



and improvement of the existing Hydro Electric projects and to eliminate huge losses in transmission now suffered, to meet therequirement of additional power at lower costs.

2. The next aspect considered by the Court was whether the Environmental Clearance obtained for the project is valid and is evenotherwise proper. The environmental clearance was sought for and the first report submitted by the Board was rejected in 1989.Thereafter the Board sought to get the decision reviwed and sought the issuance of environmental clearance. In the meanwhile in1994 EIA notification was issued along side the 1997 Public hearing notification, making the EIA process mandatory before theEnvironmental clearance could be given. The order of clearance was granted in 1998 without taking note of the impact of theamendment in 1997. It was admitted in this case that there was no public hearing before the Environmental Clearance wasgranted. It was for the Court to look into the fact that in public interest litigation of such nature with reference to challengesregarding environmental impact, whether there has been substantial compliance with the law. It is true that the Court could not gointo minute details of the various aspects as if it were sitting in appeal over the decision of the authority concerned. The Court heldthat since Public hearing was mandatory, the same requirement cannot be waived and the environmental clearance or sanctionwould only be followed after all the relevant data, including the report of a public hearing is scrutinized by the concerned authority.Thus in the interest of protecting the Environment, there is need for strict compliance of the requirements in the EnvironmentalProtection Act, Rules and Notifications, hence public hearing cannot be dispensed.

The Court held that the Government should specifically consider the question whether the Board was justified in dropping thefinancial package while accepting the bid of the consortium and whether it would be advisable in the circumstances and practicableto take up the project as now proposed by the Board and take a decision thereon and communicate it to the Board. The Courtdirected the Board to comply with the requirement of the EIA and Public hearing notification. The Central Government was further

directed to reconsider the Environmental Clearance in terms of the notifications in 1994 and 1997 under the EPA 1986. Finally theCourt held that till fresh decision are taken on these two aspects, the finalization of the contract and the starting of the work willstand suspended or stayed. The Board in public interest was directed to take al the necessary steps to repair and restore to fullcapacity, all the existing hydro electric project to ensure that generation of power as envisaged is obtained and also to take stepsto ensure that transmission losses are minimized and that theft of energy is prevented and to the extent possible eliminatedaltogether.

A.P Gunnies Merchants Association v. The Government of A. P AIR 2001 A. P 453

Satyabrata Sinha, C.J and V. V. S Rao

Environmental Protection Act, 1986

Air [Prevention and control of Pollution] Act, 1981

Constitution of India, Art. 19

Traders in gunny bags were asked to shift from their present location to a much safer location, as their activity contributed to airpollution in the thickly populated area of Maharajguni--the petitioner claimed rule of fair hearing before the order to shift could bepronounced--held in the interest of the public and health, the order was sustainable in law and the petitioner had to comply withthe order.

This writ petition challenged the order of the Environment, Forest, Science and Technology Department, in which, the Gunny Bagscleaning and trading businesses were asked to shift from their present location of Maharajguni within 30 days.

The petitioners were carrying on business in a densely populated place in Maharajguni, and due to traffic congestion and airpollution, they were asked to shift to Mahaboob Mansion market at Malakpet. The petitioner's claimed audi alteram partem rule,'The Rule of Fair hearing 'which was not complied with,before the order to shift was given.

In the instant case, the scientific finding arrived at by the Pollution Control Board, which were based on air quality monitoring data,indicating that it is necessary to shift the gunny bags cleaning and trading business to improve the environment of Maharajguni wasnever disputed in the petition. The petitioner alleged that before the order to shift was issued, they were not given a fair hearingand hence the order is against principles of natural justice

The petitioners were bonafide licensee from the Municipal Corporation, and they had been carrying on their business in conformitywith the terms and conditions of the license. Hence they claimed right to trade in gunny bags.

After due deliberations, the Courts held that it is clear that a license can be cancelled for creating nuisance. In terms of Art. 19 (1)(g), the right to carry on business or trade is subject to any restriction that may be imposed by any law in force. Therefore, theright of the petitioner to carry on business in old and used gunny bags cannot be said to be absolute. Since the business carried onby the petitioners is endangering the lives of the people living in the area, more particularly the traders and the public in general,who visit the market,day in and day out, as also the workers engaged therein, the Court was of the opinion that no fault could befound in the impugned order, which directs shifting of the business from a thickly populated area to a safer place to avoid air andenvironmental pollution. It also cannot be said that the officers while issuing the orders had failed to comply with the Rule of FairHearing, as they were implementing the directions as is in the Environmental Protection Act, issued by the concerned Ministry.

SAYEED MAQSOOD ALI v THE STATE OF M. P AIR 2001 MP 220

Writ Petn. No. 7015 of 2000, D/- 19-3-2001

J. Dipak Mishra

Environmental [Protection] Act, 1986, Sec. 29

Noise Pollution [Regulation and Control] Rules,2000, Rr. 4,5,6,8

M.P Noise Control Act 1985, Sec. 4,5


Universal Declaration of Human Rights, Art. 25



Police Act, 1861 Sec. 30

Noise Pollution--caused by playing loud speaker in Dharmshala run by respondent--petitioner a cardiac patient in locality-respondentnot to let out premises to person or associations or organizations who have not obtained permission of competent authority foruse of loudspeaker/public address systems--authority are also directed not o permit conducting of any function in violation ofRules.

In the instance case the house of the petitioner, a cardiac patient, was situated near an Eye Hospital and by the side of aDharmashala. In the vicinity of the petitioners house there are hospitals and educational institutions and Government HigherSecondary school. The Dharmashala run by the State, accommodates various categories of people and many a religious function areheld throughout the year. The Dharmashala also is given on rent for the purpose of holding marriages and other functions. In theDharmashala, loudspeakers are utilized where music is played at a very high pitch creating disturbance to the petitioner and otherpersons residing in the said locality. The petitioner alleged that due to the act of the respondent there is noise pollution and thepetitioner's health is affected and though he has submitted various complaints and approached the authorities for stopping the saidnuisance, it had fallen in deaf ears.

The Court observed that 'life is a glorious gift from God'. It is the perfection of nature, a master piece of creation. It is majestic andsublime. Human being is the epitome of the infinite prowess of the divine designer. Great achievements and accomplishments in lifeare possible if one is permitted to lead an acceptably healthy life. It has been said "life is action, the use of one's powers" andpowers one can use if he has real faith in life. The term 'life' as employed under Art. 21 of the Constitution does never mean a basicanimal existence but conveys living of life with utmost nobleness and human dignity which is an ideal worth fighting for and worthdying for. Life takes within its fold 'some of the finer graces of human civilization which makes life worth living'. Right to live in itsambit includes right to health and health gives a serene and halcyon signification to life. It has been said that preservation of healthis a duty and as per Herbert Spencer, "few seems conscious that there is such a thing as physical morality". While speaking abouthealth thus spoke Izaak Walton�."for health is the second blessing that we mortals are capable of; a blessing that money cannotbuy". Reverence for life is a fundamental principle of morality and a life without good health is denial of life. The human body isregarded as the house of creative intelligence. The health of an individual enhances the quality of the collective and in a welfarestate it is bounden obligation of the state to see that people remain in a healthy society. It is to be borne in mind that even in theinternational sphere emphasis is laid on proper health and right is enshrined providing security against sickness and disablementunder Art. 25 of the UDHR.

The Law in relation to noise pollution has categorically stated that noise is undoubtedly psychologically and physiologically harmfulas an invisible and insidious form and once hearing has been damaged by noise it can scarely ever be restored to wholeness. Inthese days, the problem of noise pollution has become more serious with the increasing trend towards industrialization, urbanizationand modernization and is having many evil effects including danger to the health. It may cause interruption of sleep, affectcommunication, loss of efficiency, hearing loss or deafness, high blood pressure, depression, irritability, fatigue, gastrointestinalproblems, allergy, distraction, mental stress and annoyance etc. This also affects animals alike. The extent of damages dependsupon the duration and the intensity of the noise. Sometimes it leads to serious law and order problem. Further, in an organizedsociety, rights are related with duties towards others including neighbors.

The facts as have been undraped in the present case are that, despite the fact that s. 30 of the Police Act, 1861 confers powerson the authorities to take appropriate action against such persons who are responsible for noise pollution but no step has beentaken. The sphinx like silence has crumbled his hortative hopes in the administration. With these averments the prayers have beenmade.

In view of the totality of circumstances, the High Court directed that the respondent shall not let out the premises to such personsor associations or organization who have not obtained permission from the competent authorities with regard to the use ofloudspeakers/public address systems. The concerned authorities shall see to it that no function is carried out in violation of theNoise Pollution Rules, 2000 and if anybody is found to be violating the Rules, proper steps should be taken to book him as per law. Allefforts are to be made that majesty of law is honored by one and all and collective does not suffer from any individual aberration.

The Court further held that though this order is passed in connection with the grievance of the petitioner relating to the activities ofrespondent the Court further directed that a copy of the order be sent to the Chief Secretary of the State to see that the Rules areobeyed in letter and spirit and no citizens; right is affected.

Smt. C Uma Devi v Government of A. P AIR 2001 A. P 460

Writ Petn. No. 4598 of 2000, D/-21-6-2001

Satya Brata Sinha, C. J and V. V. Rao. J

Environmental Protection Act [29 of 1986], Sec. 3,6,25

A.P Municipalities Acct [6of 1965]

Municipal Solid Waste [Management and Handling] Rules [1999] Rule 8

This writ petition portrays how Visakhapatna Municipal Corporation, a local authority within the meaning of Art. 12 of theConstitution, acts in the matter of maintenance of public hygiene and ecological balance.

A park commonly known as Green Park, was situated adjacent to Ramakrishna Street, old City, Visakhapatnam. It was alleged by thepetitioner that the respondent Corporation had converted the said park into Garbage Dumping yard.

The A.P Pollution Control Board had received a complaint from the petitioner about the dumping of garbage in the park by thecorporation and the same was brought to the notice of the Commissioner. It was alleged in the complaint that the dumping of thegarbage was affecting the health of the residents, which was originally designated for a park, it would tend to increase infectiousdiseases like Cholera, malaria. It was requested to shift the dumping yard to a safer locality.

During an inspection by the PCB, it was reported that large quantity of garbage existed in the yard and from the surrounding areasall the garbage was collected and dumped and the area was used as an intermediate storage yard. More than 200 truck loads ofgarbage was lying, which resulted in heavy fly and mosquito prevailing in this area.

It is not disputed that the Ministry of Environment and Forest has issued the Municipal Solid Waste [Management and Handling]Rules, 1999, which was applicable to every Municipal Authority responsible for collection, segregation, storage, transportation,processing and disposal of municipal solid waste.



processing and disposal of municipal solid waste.

The Corporation on its part disputed that only a part of the land was used for dumping garbage, and the land had a compound wallerected on three sides and gates also provided on the southern side and northern side of the road to restrict vehicular movement.They also contended that the land was used only for transitory phase of collection and storage of garbage in the city.

After due deliberations, the Court held that Parks as is well known, acts as lungs of the cities/localities, and therefore, under nocircumstances they should be allowed to be used for purposes other than recreation. The obligatory function leave no manner ofdoubt that the park being a property having vested in the Municipality, it has the duty to maintain and develop the same. It, ofcourse, has a discretionary duty, inter alia to construct and maintain a community hall, but the same cannot be done at the cost ofecological greenery. The State, as noticed herein has a duty to look after the environment safety and its further improvement.

Further the Court held that it is the statutory duty and function of a local authority, including a Municipal Corporation, to see thatthe health and hygiene of the members of the general public is maintained. The Corporation which is responsible for providing goodcivic amenities and maintain hygiene of the surrounding, cannot itself take recourse to such activities, which creates pollution of theenvironment and unhygienic conditions for its citizens to live in.

The Court directed the Corporation to restrict itself from any further dumping and directed the Corporation to restore the lost gloryof the Green Park and to maintain it properly and asked the A. P Pollution Control Board to act as the monitoring authority on aregular basis to restore the greenery of the park.

Union of India v. National Hydroelectric Power Corpn.Chairman. H. P SPCB v. National Hydroelectric Power Corpn.M. P Pollution Control Board v. M. P Electricity Board. AIR 2001 SC 2512

Civil Appeals Nos. 2885 with 4659-4668 and 4516 and 4517 of 2000, D/-25-7-2001.

B. N Kirpal, N. Santosh Hedge and K. G Balakrishnan, JJ

Water [Prevention and Control of Pollution] Cess Act [36 of 1977] Sec. 3,16

The short question which arised for consideration in all the above cases was: Whether on the hydro power generating industry,there can be valid levy of Cess under the provisions of the Water Cess Act, 1977?

The aforesaid Act was promulgated with a view to levy and collect Cess from the units which are thought to cause pollution and thefunds so realized were to be entrusted to appropriate authorities, inter alia for remedial measures.

Acc. to sec. 3 of the above Act, Cess was payable by every person carrying on any specified industry and by every local authority.When the Act was promulgated, hydel power generation industry was not included in the Schedule. In order to bring it under theCess an order was issued in 1993 under sec. 16 of the Act.

The respondents filed writ petitions challenging the imposition of cess on the hydro power generating industry. Amongst other

grounds which were raised, it was contended on behalf of the respondent that there had been no valid amendment of schedule I ofthe Act and therefore no cess could be imposed. Sec. 16 entrusts power with the Central government, which may by notification inthe official gazette amend Schedule I and add any industry having regard to the consumption of water in the carrying on of suchindustry and the consequent discharge thereof resulting in pollution of any stream. Every notification shall be laid before each houseof parliament, if it is sitting as soon as may be after the issue of the notification and if not sitting, within seven days of itsreassembly and the Central Government shall seek the approval of the Parliament to the notification by a resolution within a periodof fifteen days.

It was observed by the Court that no such resolution relating to the notification had been moved in the Parliament. If no resolutionhad been moved the question of the Parliament giving approval does not arise. Though the first step of placing the notification ineach house of the Parliament had been taken, subsequent steps leading to passing of the resolution were not even commenced withthe moving of the resolution.

The Court held that non-compliance with requirement of Sec. 16 (2), makes the notification amending schedule invalid, as the samewas not approved by Parliament, hence the imposition of cess on hydro power generating industry was without authority of law andhence illegal.

N. R Nair v. Union of India AIR 2001 SC 2337

Civil Appeals Nos. 3609-3620 of 2001 [arising out of S.L.P. © Nos. 11867-11878 of 2000], d/-5-1-2001

B. N Kirpal, Umesh C. Banerjee and Brijest Kumar, JJ.

Prevention of Cruelty to Animals Act [59 of 1960], Sec. 22

Constitution of India, Art. 14.

The validity of the amended Notification to Sec. 22, Prevention of Cruelty of Animals Act, 1960 was challenged. The amendedSection prohibits training or exhibition of specified animals, which may cause unnecessary pain and suffering--the petitioner findsthe amendment objectionable--held that the said amendment was made after due consultation of an Expert Committee, hencevalid as well as justified. The Amendment protects the interest of these animals from inhuman torture.

The main challenge in these appeals, by a special leave petition, from the judgment of the Kerala High Court, is to question thevalidity of Sec. 22 of the Prevention of Cruelty to Animals Act, 1960 and the Notification issued under Sec. 22, to the effect that'no person shall train or exhibit any animals specified therein, namely, bears, monkeys, tigers, panthers and lions'.

The Central Government issued a Notification in March 1991 under Sec. 22 of the above Act [Prevention of Cruelty to Animals Act,1960], banning the training and exhibition of specified animals, which alleged causes unnecessary pain or suffering to the animals.

This Notification was challenged by the Indian Circus Federation before the High Court of Delhi. The Delhi Court had requested theGovernment to have a fresh look into the Notification, after which a Committee was constituted by the Government consisting ofthe Add. Inspector General [Wildlife], Director, Wildlife Institute of India, Member Secretary, Central Zoo Authority, Add IGF andDirector, Animal Welfare. The said Committee gave a detailed report and in pursuance thereto, the impugned Notification in Oct.



Director, Animal Welfare. The said Committee gave a detailed report and in pursuance thereto, the impugned Notification in Oct.1998 was issued under Sec. 22. The said Notification was challenged in the Kerala High Court in June 2000, from where the sameappeal was preferred to the Supreme Court.

The Court held that it is the welfare of the animals which is of paramount consideration and it is only if the government is satisfiedon the basis of the material on record that unnecessary pain or suffering is inflicted on an animal during the course of training or atthe time when it is exhibited that a notification is issued. The Court further held that they do not concur with the contention thatthe power under sec. 22 is unguided as the reading of the Act as a whole clearly shows that implicit in sec. 22 is the necessity forthe government to come to the conclusion that its notification under the said section is not issued there would be unnecessary painor suffering in the training or exhibition of the animals. The existence of the said fact is a precondition to the issuance of theNotification. The Court observed that, in such matter of exercise of judicial review, the Court cannot go into the correctness of thedecision of the Government. It is the duty of the Court to look into the matter that the government had arrived at the said decisionafter considering all the facts relevant for it to make that decision. A High Power Committee had been constituted, and only afterthe committee report was submitted that a decision was taken on the above matter. The Court was also satisfied that the impugnedNotification was within the parameters of the Prevention of Cruelty to Animals Act, 1960.

M. C Mehta v Union of India AIR 2001 SC 1846

Writ Petn. [Civil] No. 13029 of 1985, D/26-3-2001

Dr. A. S Anand, C. J.I, B. N Kirpal and V. N Khare, JJ.

Environment [Protection]Act, 1986, Sec. 3

Constitution of India Art. 21

Motor vehicles Act, 1988 Sec. 56

Air pollution in Delhi--Direction to convert entire Delhi city bus fleet to single fule of CNG by 31-3-2001--As also direction that no 8years old bus shall ply except on CNG or other clean fuel after 1-4-2001 passed by the SC in 1998 AIR SCW 2813--Application forextension of dead line fixed for compliance--Blanket extension refused--Binds all bus operators--however to mitigate sufferings ofcommuter public relaxation given to schools, DTC, contract carriage operators and others including autos by allowing them tooperate vehicles equal to number of vehicles for which steps for conversion has been taken--low sulphur diesel- clean fuel -question referred to committee set up under Act.

On 28th July, 1998, the Supreme Court had directed inter alia, that the entire fleet of city buses which are operating in Delhi be

converted to single fule CNG mode by 31st March, 2001. Despite this direction, given nearly 3 years back, the government of Delhi'sresponse has been extremely tardy to say the least. No serious attention was paid to the order by the administration and it appearsthat even the private operators got encouraged by this tardy response and they also did to take appropriate steps to comply witthe order of the Supreme Court.

It was after taking note of the submissions made at the bar, to mitigate to whatever extent possible, the hardship which the

commuter public would have been put to particularly the school going children, that on 26th March, 2001, certain relaxations weregiven by the Supreme Court. It was directed, inter alia that all those vehicle owners who have taken effective steps or shall take soby 31st March, 2001, for the purpose of either acquiring new buses which would operate on CNG fuel mode or to convert theirexisting buses to operate on CNG fuel mode could be granted permits/authorizations after filing proper affidavits/undertakings in the

Supreme Court, to ply their existing vehicles not more than eight years old, equal in number, till 30th Sept. 2001. This dispensationwas also extended to other commercial vehicles which were required to switch over to CNG fuel mode.

The Court also took note of the fact that as the existing ground realities shows a near breakdown of the transport system in Delhi,primarily due to inaction on the part of Delhi Administration to take timely effective steps, the citizens should not be made to sufferfor somebody else follies. The Court also observed that the Delhi administration was duty bound under the Constitution Art. 144 toact in aid of the Supreme Court directives and any failure, shall be seriously treated by the Apex Court.

Goa Foundation v State of Goa AIR 2001 Bom. 318

Writ Petn. No. 113 of 1992, D/-21-7-2000

F. I Rebello and V. C Daga, JJ.

Forest Conservation Act 1980 [69 of 1980] Sec. 2

Forest Conservation Rules -[1981], Rr. 5,6

Environment Protection Act 1986


The case involved the question of grant of lease of land, --designated as dry land, but consisting forest cover,-- for setting upbeneficiation plant for iron ore in favor of respondent-- the Industry had permission under the Industrial [Development andregulation] Act-- held that the grant of lease void.

The petitioner were a registered society under the Society Registration Act. They are also a Society working towards environmentalprotection. The objection of the petitioner was that the State government had granted lease of a land in Sanguem Taluka for thepurpose of erecting a beneficiation plant and purposes related therewith. The petitioners pleaded that a rich forest wealth in GoaState particularly the conservation of ecological fragile areas falls in the leased land. The plot in question constitutes one of the lastremaining vestiges of primary forest in the ecologically sensitive region of the Western Ghats. The plot leased has more than 60 %density of trees which means the forest land is of the nature of a closed forest system and the Forest department intends toconvert the same into Reserve Forest. The petitioner contended that overnight the lease was granted under mysteriouscircumstances, when the revenue authorities filed a report underestimating the density of trees in the plot. When the lease wasgranted the diversion of forest land to non-forest purposes in private land or so called private forest and revenue lands was thoughtnot to come in the purview of the Forest [Conservation] Act, 1980. But now the position has been altered and the State of Goa is



governed by the Preservation of Trees Act, 1984.

The petitioner also alleged that the respondents had already felled 2 hectares of rich forest illegally and without any permission fromany of the statutory authorities. Further monstrous act of environmental terrorism was followed by using a bulldozer to remove allthe roots of the trees. Pits were dug to lay foundation stone for the beneficiation plant without any permission from any authoritiesunder the law.

The government on its part contended that the grant of lease for setting up a beneficiation plant for iron ore was done way back in1988 at Tudow. It is estimated that the Tudow mines contain 78 million tons o law grade iron ore. Hence 12 hectares of land wasdelivered and heavy investment were already being done for starting the company. The company's project is worth Rs. 25 croresand the company will not occupy more than one hectare. Only 49 trees had been felled and they denied the petitioners claim thatan average 250 tree per hectare was covered by forest.

The Court went in detailed the various International Conventions and treaties to which India is a party and held that the State ofGoa should have taken prior approval from the Central Government in terms of Forest [Conservation] Rules, 1981. The Courtobserved that the 1980 Act was an Act in recognition of the awareness that deforestation and ecological imbalance as a result ofsuch deforestation have become social menaces and further deforestation and ecological imbalances should be prevented. It is,therefore, clear that merely because one of the Ministries of the Government had granted permission, that permission would not bepermission for the purposes of the Forest [Conservation] Act, 1980. The Court rejected the contention of the respondents that theland under contention was not forest land, as the land was undisputed a forest land, with enough number of trees on it and anyaction taken in contravention of sec. 2 of the Forest Act, 1980 contemplates prior permission of the Central Government. Evenotherwise the land is situated to an adjacent Government forest and the land is sought to be used for setting up of a beneficiationplant which involves dust and water pollution and consequent destruction of the adjoining forest. It will substantially effect theenvironment and ecology of the area. This, in fact, would affect the right to life. The petitioner have averred that the cutting oftrees without obtaining permission was resorted to. In matters of ecology and environment and considering the principle ofsustainable development, no person or organization, however, high and mighty they may be, can be permitted to flout the law of theland.

Following the above observation the Court held that the lease granted in favour of the respondent is born null and void The Courtdirected the authorities to restore the land to its original use.

M/s Stella Silks Ltd.v/s State of Karnataka AIR 2001 Kar. 219

Writ Petn.No 17537 of 1999 [GM-Pollution],D/-19-1-2001.

D. V Shylendra Kumar, J.

Water ]Prevention and Control of Pollution] Act, 1974, Sec. 33-A

Civil Procedure Code [5 of 1908], Sec. 35

Water [Prevention and Control of Pollution] Act, 1974, Sec. 33-A-Direction for closure of industry-Discharge of contaminated waterby industry-violations of various provisions of Act and conditions imposed there under--it also flouts orders of Court and violates itsown undertaking given before the Court- Orders of closure of Industry-not liable to be interfered with.

This is a writ petition was filed by a limited company which carried on certain manufacturing activity of silk fabrics under the nameand style of M/s. Stella Silks

and had manufacturing unit located at no.411, Telugarahalli road, Anekal taluk, Bangalore district. It was contended by thepetitioner that in the course of its manufacturing activity, the petitioner's unit, also having a dyeing unit, was used for the purposeof dyeing the silk fabrics. In the activity of dyeing, water was extensively used and quite naturally, in the process, water getscontaminated and the petitioner has to get rid of this contaminated water. It appears, that the petitioner sought the consent of thePollution Control Board under the Water Act and the same was granted with conditions for compliment. However, it appears, thepetitioner having not complied with various conditions that had been imposed on it by the Board in the matter of dischargingpollutants from its factory premises, particularly, discharge of contaminated water, had been put on notice by the Pollution ControlBoard to take remedial steps immediately and in the alternative, the Board was constrained to pass appropriate orders in this regard.A show notice was issued with certain directions under sec. 33-A of the Act directing the Management of the petitioner industry toclose down the industrial operation or process forthwith until further orders and with further directions to the Chairman/ Secretary ofthe Karnataka Electricity Board to stop the power supply to the industry forthwith and until further orders and for cancellation of thelicense that had been granted by the Government of Karnataka and for such other allied actions.

The petitioners assured that they had taken all steps to ensure compliance with conditions imposed by the Board, particularly forensuring that discharged effluents conform to the technical specifications and quality stipulated by the Board. At the moment it was

obvious that the petitioner was running the industry without valid consent from the Pollution Control Board. After giving anopportunity for hearing, the Board confirmed the order in the show cause notice.

The petitioner hence forth moved a writ of certiorari to quash the same. The main contention of the petitioner was that they hadnot been adequate opportunity of being heard, and hence this order has violated the principles of natural justice. They also pleadedthat if 2 or 3 weeks time is granted by the Hon'ble Court, they would take steps and care to bring the effluent treatment plant inconformity with the norms and standards laid down by the PCB. More over the company is a 100% EOU employing more than 400persons in the industry, hence the order could affect a growing concern.

The Court observed that the interest of a particular person or a particular industry is not the concern with which the Act has beenenacted by the legislature. It is for the protecting the interest of society and for ensuring the ecological preservation of nature suchenactments are made. When persons like the petitioner flout the various provisions of the Act and conditions imposed there underonly for their own private benefits, such acts cannot be entertained. More so, in the instant case, the conduct of the petitioner hasbeen far from bonafide and being one of continuing to flout the orders passed by the Judiciary and violating its own undertakingsfiled before the Court and Continue to run the industry even without any enabling power or order in their favour in as much as onand after 18/8/1999 there was no interim orders which enabled the petitioner to continue the industry. Nevertheless, the petitionerhas continued to run the industry, continued to pollute the environment by discharging contaminated water.

The Court observed the inaction of the Board, which allowed the industry to continue to flouting the water, and blamed them forlack of sensitivity and one of total inaction. The Court held that the petition had no merits and does not deserve any indulgence attheir hands. Though the Court held that the conduct of the Board officials definitely does to entitle them for award of any costs,costs were imposed more as a measure of deterrent on the persons like the petitioner who not only abuse the process of Court with



costs were imposed more as a measure of deterrent on the persons like the petitioner who not only abuse the process of Court withfalse and frivolous causes, but also flout with impunity the undertakings given before the Court. Further the Court awarded theKarnataka State Pollution Control Board the cost and opined that the Board is at liberty to take action as is open to them in law forenforcing various provision of law in preventing causing of pollution.

K. R Krishnaiah v. Mandal Executive Magistrate, Muthukur AIR 2001 A. P 190

W.P Nos, 19785, 20339, 20704, 20820, 20991 and 25502 of 2000, D/-12-3-2001

B. Sudershan Reddy, J.

Constitution of India, Art.19-

Water Act [6 of 1974] sec. 17, 24.

Petitioner dug fish/prawn ponds in their land-pollution of water-commenced functioning without obtaining authorization fromcompetent authorities-discharging organic effluents by units resulting in damage to agricultural lands and food production- carryingon aqua culture-petitioners dug fish/prawn ponds in their land located in tank bed to avoid the submergence of their land-interfering with feeder channels and the irrigation systems-Court finds no fault in authorities from interfering in matter.

The petitioners claim to be owners of the land, designated and classified as agricultural lands. Thereafter the petitioners haveadmittedly converted the lands into Fish/Prawn ponds. It is admitted that the petitioners got the lands under their occupationexcavated and have been doing Fish/Prawn cultivation for quite some time.

The land in question are located in the water storage area of the tank and there is no dispute as to the land ownership, but there issome dispute with regard to the exact extent of the tank bed and ayacut under the said tank. Landowners used to cultivate paddycrops in their lands whenever they were available for such cultivation depending upon the water levels in the tank. All of a suddenthey have started aqua culture by forming Fish? Prawn ponds with 3 to 4 mts. high bunds causing irreparable damage to theirrigation system of the tank by reducing the storage area. The landowners are alleged to have damaged the surplus weir of the tankwith an intention to make the tank dry so as to continue with their fish/Prawn cultivation. The said activities of the petitioners inthe tank bed area are adversely affecting the total ayacut under the tank and ayacutdars are very much agitated about the threatto their livelihood.

The District Collector reported on inspection that "�commercial interests are ravaging the interests of the agricultural farmers andlabour and every day, attempts are being made to buy directly or by benami transactions every land yielding ground water to makethe most profit. Fertile lands are being taken over and converted for prawn culture which will ultimately result in converting it into awaste land, while simultaneously pauperizing the agricultural farmer and agricultural labourer. This serious problem has to be tackledimmediately with every law and power which can fight for justice". The Court appreciated the DC concern. The Court also took noteof the fact that the farmers under the ayacut are receiving the polluted water discharged from the prawn tanks and not fresh waterfrom the irrigation tanks. The DC also warned about the emergence of new prawn tanks coming up anywhere and everywhere, whichwas seriously undermining underground water resource in the region. The evil effect of Corporatisation of every conceivable

economic activity and its spread into agricultural sector is succinctly noticed by the DC. It is observed by him that the demolition ofthe existing system of the tank has brought in harmful economic change. It is observed by the DC, sometimes big money from theCorporate bodies is flowing as an investment into fresh water prawn culture with a view to reap big commercial profits on a landwhere they do not live and have no interest except to reap the benefit of the investment. The Collector noticed that the saidactivity is nothing but an act of ravaging the land depriving the traditional agriculture of his legitimate right to cultivate the lands.The farmers are being displaced out of their occupation depriving them of their livelihood.

The Court on the basis of the material available on record and the details furnished in the counter-affidavit filed by the responsibleofficers, concluded that it is inescapable that the lands of the petitioner under aqua culture are located within the tank bed ofKrishnapatnam. May be they were the owners of the land in question. But they cannot be permitted to indulge in any destructiveactivities adversely affecting the very existence of the irrigation system and the tank itself. It was very obvious that to avoid thesubmergence of their land the petitioner raised the bunds from 3 to 4 feet for the purpose of aquaculture. Though the petitioner arewell within their right to do ever possible thing on their land, but they cannot be permitted to destroy the very irrigation system witha view to see that their land do not get submerged in the tank. Hence the act of the petitioner is deplorable.

The Court also reflected on the issue of Pollution; the A.P Pollution Control Board had issued notices to those units discharging largequalities of organic effluents. Further it was alleged that the petitioners had commenced aquaculture farming without obtainingauthorization from the Central Aqua Authority, Chennai. The Board was seriously concerned with the tampering of surplus weir tofacilitate the discharge of effluents. Unconsumed organic feed, dead seed, excretes, chemicals, antibiotics used in the culture werethe major sources of pollution. The replaced water was finding its way into irrigation channel, which was also a major source ofpollution.

The Court relied on the Jagannath Case and held that the tank bed is meant for public purposes. Any conversion of such land forconstruction of shrimp culture ponds is prohibited. Such conversion would be contrary to the directions of the Supreme Court. TheCourt held that the petitioner is engaging in activities which lends to nothing but occupation of public irrigation tanks for practicingaquaculture. The conversion has resulted in deprivation of the legitimate rights of the ayacutdars to utilize water from publicirrigation tank. The petitioners were directed to take appropriate measures to restrict themselves from such activities in future.

Goa Foundation, Goa v Diksha Holding Pvt. Ltd AIR 2001 SC 184

Civil Appeal no. 401 of 2000, D/-10-11-2000

G. B Pattaniak and U. C Banerjee, JJ.

Environment [Protection]Act [29 of 1986], Sec. 3

Coastal Regulation Zone Notification, 1991

Development activities and protection of Environment-Approach of Court in such matters-should be to strike a balance the two--Hotel in coastal area-permission to construct-validity-disputed hotel situated in area of Nagorcem, Palolem, Goa-entire areclassified as CRZ-I except settlement which are classified as CRZ III-plot of land in question located beyond 200 meters of HighTide line- held disputed plot is situate in CRZ III, hence available for development.



The focal point for consideration in this appeal was the environmental degradation said to by reason of disturbance of existing sanddunes on the sea front of Goa.

The appeal by the Goa Foundation, as Public Interest Litigation, objecting to the construction of a hotel on a plot of land situated inthe area of Nagorcem, Palolem, Taluka-Cancona, Goa, inter alia, on the ground that the land in question comes within CRZ_I, and assuch it is not permissible to have any construction on the same plot of land. It was also contended that the plan and sanctionobtained for such construction from the competent authority, are in contravention of the provision of the Environmental ProtectionAct, 1986 and such permission has been granted by the concerned authority without application of mind and without considering therelevant materials and therefore, the Court should issue mandamus, injuncting the hotelier-Diksha Holdings Pvt. Ltd., fromconstructing the proposed hotel on the disputed pot of land. It was also contended before the High Court that there exist largenumber of sand dunes and by permitting the respondent to have the hotel complex on the plot of land will ultimately lead toirreversible ecological damage of the coastal area, and therefore, the Court should prevent such construction. The High Court in theimpugned judgment, took into consideration the balancing task of maintaining and preserving the environment and ecology of thepristine beach with sand dunes and the development of hotels and holiday resorts for economical development of the State. It alsotook into account several Acts and Regulations like Town and Country Planning Act, the CRZ Notification, the Coastal ZoneManagement Plan. The High Court followed the report of many inspection Committees, which stated that construction of the hotelwill not affect the sand dunes. The High Court also took into account the report submitted by Dr. N. P S. Varde, the Director ofScience, Technology and Environment, Goa, who had categorically indicated that the Hotel project is located on undisturbed beacheco-system which has mostly gradually undulating land cape covered with stable dune vegetation which in a strict technical view is

taken, no development can ever be taken place along the sea coast of Goa. On the basis of the above finding the High Court foundno merits in the writ petition. The High Court recorded the finding that the State Authorities as well as the Central Government wereaware of the existence of sand dunes formation upto 200 meters strip from the shore line where no construction is permitted andbeyond the said 200 meters strip within the hotel complex is proposed to be build up is under category CRZ III and as such there isno prohibition for construction of the hotel within that area.

The Supreme Court during its observation said that, with a view to protect the ecological balance in the coastal areas, notificationhaving been issued by the Government, there ought not to be any violation and the prohibited activities should not be allowed tocome up within the area declared as CRZ notification. The Court also emphasized that no activities which would ultimately lead tounscientific and unsustainable development and ecological destruction should at all be allowed and the Courts must scrupulously tryto protect the ecology and environment and should shoulder greater responsibility of which the Court can have closer awarenessand easy monitoring.

In the State of Goa, so far as Cancona Taluka is concerned, in which Taluka, the proposed hotel of the respondent situates, thewhole of Cancona Taluka is classified as CRZ-I, except settlement area, which is classified as CRZ-III and in Nagorcem area, theentire area is classified as CRZ-I, except the settlement area which is classified as CRZ III. According to various reports submittedby the State Government to the Government of India as well as reports obtained by the Union of India through its own scientists, inthe area, where the permission has been accorded for construction of hotel, lot of settlement and built up structures are availablelike temples, schools etc. and that the plot of land is located beyond 200 meters of the High Tide Line.

No activities which would ultimately lead to unscientific and unsustainable development and ecological destruction should at all beallowed and the Courts must scrupulously try to protect the ecology and environment. On going through the aforesaid CRZnotification issued by the Government as also the approved Coastal Management Plan of the State of Goa, the Court held that it didnot find any merit in the arguments presented by the Petitioner, and concluded that by allowing construction of hotel on land, theauthorities have allowed certain prohibited activity.

Nitin Walia v. Union of India AIR 2001 Delhi 140

R.F.A. No. 220 of 1996, D/-19-10-2000

Arun Kumar and A. K Sikri, JJ.

Wild Life [Protection] Act [53 of 1972], Sec. 38 C, 38H.

Tort law of Negligence

Torts-Negligence-compensation-child of three years age visiting the zoo-Tigress inside bars suddenly grabbed his hand throughrailing and pulled it in--Resulting in amputation of hand and it in permanent disability-Negligence of zoo authorities proved-claim forcompensation of Rs. 5 lacs with interest-Not unreasonable in view of gravity of injury and physical pain and mental agony sufferedby child.

At the tender age of three years, NitinWalia, appellant in the present case lost his right arm in an unfortunate incident. It has

crippled him for life. It happened on 29th March, 1988. This boy of three years of age was feeling excited and jubilant when hevisited National Zoological Park, Delhi along with his family members to see various animals kept in the Zoo. His joy was boundlesswhen he reached the enclosure where the white tigress was being kept. He was with his father and other family members. All thefamily members were keenly watching the tigress, while the boy reached near the railing. The white tigress all of a sudden grabbedhis hand through the railing and pulled it in. Other family members reached out to rescue and tried to put the tigress away.However, by that time irreversible harm had been done. Tigress had bit the right arm of the appellant. Profusely bleeding, in severpain and agony the child was taken to the hospital situated in the Zoo but the doctors in the zoo expressed their inability to provideany treatment for want of any medicine or facilities for that purpose. It is irony that the Zoological Park of National fame wherelarge species of animals are kept, which include ferocious ones, there are no medical facilities to meet such eventualities. Traumaticand tensed, father of the appellant rushed to the All India Institute of Medical Sciences. Right arm of the appellant had to beamputated up to two and half inches from the shoulder to avoid further loss of nay of the limbs or child's life. Appellant remained an

indoor patient for more than one month and was discharged only on 25th April, 1988. He has not to spend rest of his life without avital organ of the body which impairs and affects the proper functioning of a person. He has been rendered permanently disabled tothe extent of 100 %. The appellant considered the respondent, namely, Zoo authorities responsible for the incident in not takingproper care to confine wild animals in the zoo, suit for damages was filed. Initially the claim was made for Rs. 7,10,000, later it wasconfined to Rs. 5 lacs and interest @ 18 % p. a. During the pendency of the proceeding in the trial court an interim compensation ofRs. 40,000/ was granted.

It was argued on behalf of the appellant that in case of dangerous animals, the liability to take care is absolute and it is only onaccount of carelessness of the authorities of the Zoological Park of the Government of India, Mathura Road, New Delhi in not

providing fine wiremesh in the cage that resulted in appellant putting his hand through the bars and losing his arm for which he was



providing fine wiremesh in the cage that resulted in appellant putting his hand through the bars and losing his arm for which he wasentitled to damages.

The question to be decided is as to whether it was the negligence of three years old boy in reaching up to the railing and exposinghimself to the risk of being attacked by the tigress or was it the negligence of the zoo authorities in no taking proper care to ensurethat such incidents do not take place.

The Court had not hesitation in holding that the authorities had to take the brunt of the responsibility as it is their bounden duty toensure that wild animals in the Zoo are kept and confined in such a manner that they are incapable of causing damage or injury tothe visitors to the Zoo. Zoological park is a place where animals and birds, which may be brought from all parts of the world, arekept. The purpose of visiting zoo and see these animals is not only entertainment but education to the visitors. They are able tosee, amuse themselves and learn about these animals without having the trouble of going to different places where these animalsare the natural habitants. Animals are of various species. They include wild and ferocious animals as well. Zoo authorities are wellaware of the fact that people of all ages would visit the Zoo. They are well aware about the habits of various animals. They are alsowell aware of the danger in letting loose wild animals i.e. the reason that wild and ferocious animals are kept behind iron bars and incages. The Zoo authorities have to keep these animals in such a manner that under no circumstance these animals are able tocause any damage or injury to any visitors. The respondents and their employees were aware of the mischievous propensity of thewhite tigress kept in the Zoo. It was , therefore, their responsibility to keep it in such a manner that no such untoward incidenttakes place. After this incident respondents have fenced the area by putting wire mesh on iron bars. This itself shows that type ofcaution which was required was not taken earlier.

The Court examined the case on the test of Negligence vis-à-vis, Duty of care by the respondent, Strict liability: As keeper ofdangerous animals, and Duty as occupier of the premises, viz. Zoological Park. The Court concluded, on the basis of the common lawrules, which to a very large extent influence legislations in India, that the rule Res Ipsa Loquitur was established and the same shallcome to the rescue to award damages to the appellant. The Court had no hesitation in holding the respondents absolute liable tothe above incident.

The Court had no hesitation is awarding an compensation of Rs. 5 lacs, and thought that it was totally reasonable, from which Rs.75,000 could be attributed to pain and suffering, Rs. 75,000 for loss of amenities or happiness, Rs. 1,00,000 towards disfigurement,Rs. 1,00,000 for loss of expectation of life. In so far as pecuniary damages are concerned, the appellant produced the evidence toshow Medical expenses to the tune of Rs. 8,000. Thus a Decree in the sum of Rs. 5 lacs along with interest at the rate of 12%p.awas awarded.

Biju.V.G. Vs. Thalassery Municipality and others.G. vs. Thalassery 10/24/2001IN THE HIGH COURT OF KERALA, AT ERNAKULAM

Present:

The Honourable Mr. Justice P.K.Balasubramanyan

&

The Honourable Mr. Justice M. Ramachandran

Wednesday, the 24th October, 2001/2nd Karthika, 1923.

O.P.No...2 9 8 0 7...OF 2000-W

Biju.V.G. Vs. Thalassery Municipality and others

This Original Petition having been finally heard on 21-8-2001, the court on 24-10-2001 delivered the following:-

J U D G M E N T

BALASUBRAMANYAN, J.

1.This Original Petition is filed by the petitioner, who is the Secretary of the Kerala Sasthra Sahithya Parishad, Thalassery Unit.According to the petitione,r the Original Petition is filed in public interest and in discharge of the duties of the petitioner under Article48A of the Constitution of India. The petitioner complains that no proper steps are taken by the State of Kerala, the UnionGovernment and the authorities concerned to enforce strictly the notification issued by the Government of India on 19-2-1991 underSections 3(1) and 3(2) of the Environment (Protection) Act, 1986. the petitioner is specifically complaining of the violation of thatnotification by respondents 2 and 3 in the Original Petition. He is also complaining of the attidtude of respondent No.1, theMunicipality, in the matter of enforcing the notification and ensuring its compliance. The prayers in the Original Petition are forsetting aside the orders permitting a construction by respondents 2 and 3 in alleged violation of the Coastal Zone Regulationnotification and for reliefs arising out of the quashing of those orders that are consequential thereto. There is also a contention that

there has been no proper constitution of the relevant bodies under the Environment (Protection) Act and a direction is sought for toensure that proper bodies are constituted as envisaged by the Act, the Rules and the notifications.

2. The Original Petition is opposed by respondents 2 and 3, who have constructed the building, the construction of which ischallenged in the Original Petition. The Union of India has adopted a stand more or less indicating that the implementation of theregulation by the State leaves much to be desired. The Municipality has adopted some sort of lukewarm attitude towardsenvironment protection.

3. Exhibit P1 marked in the Original Petition is the notification published on 20-2-1991 by the Ministry of Environment & Forests underSections 3(1) and 3(2)(v) of the Environment (Protection) Act and Rule 5(3)(d) of the Environment (Protection ) Rules, 1986declaring coastal stretches as Coastal Regulation Zone (CRZ) and regulating activities in the CRZ. Under Clause-2 of the notification,construction activities are prohibited and under Clause-3 permissible activities are regulated. In other words, all activities notprohibited by Clause-2 of the notification are regulated by Clause-3 of the notification. For any permissible activity, clearance has tobe given when the activity is within the Coastal Regulation Zone and if it requires water front and foreshore facility. The notificationalso contemplates the preparation of Coastal Zone Management Plans by the States and the Union Territories within one year fromthe date of that notification. It is also provided that pending the preparation and publication of the Coastal Zone Management Planand their approval, all developments and activities within the CRZ shall not violate the provisions of the notification. Clause-4provides that the Ministry of Environment and Forests and the Governments of States or Union Territories or such authorities, asmaybe designated for the purpose, shall be responsible for monitoring and enforcement of the provisions of the notification withintheir respective jurisdictions. Annexure-I contains coastal area classification and development regulations. In this case, we areconcerned with Category-II, shortly described as "CRZ-II". The areas included therein are areas that have been developed unto orclose to the shore-line. A "developed area" is understood as that area within the Municipal limits or in other legally designated urban



close to the shore-line. A "developed area" is understood as that area within the Municipal limits or in other legally designated urbanarea which is already substantially built up and which have been provided with drainage and approach roads and other infrastructuralfacilities, such as water supply and sewerage mains. As regards CRZ-II, the norms for regulation of activities under Clause 6 isprovided as follows:-

(i) Buildings shall be permitted only on the landward side of the existing road (or roads proposed in the approved Coastal ZoneManagement Plan of the area) or on the landward side of the existing authorised structures. Buildings permitted on the landward sideof the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country. PlanningRegulations including the existing norms or Floor Space Index/Floor Area Ratio.

Provided that no permission for construction of buildings shall be given on the landward side of any new roads (except road proposedin the approved Coastal Zone Management Plan) which are constructed on the seaward side of an existing road".

4. Respondents 2 and 3, acting through their power of attorney, sought to put up a multi-storied building (non-residential) on thebanks of Eranholi River in the property blocked in Survey No.140/2, 140/4 and 141/1A of Thalassery village. The construction wasattempted admittedly within CRZ-II zone. Special permissions or exemptions were obtained from the Kerala Building Rules for theconstruction of the complex. The petitioner in this Original Petition had approached this Court with O.P.No.10485/1997 praying forthe issue of a direction to the Thalassery Municipality to restrain all constructions which are in violation of the CRZ notification,Exhibit P.1. By Judgment dated 18-2-1998, this Court directed that the issue raised by the petitioner be decided on the basis of therepresentation made by the petitioner. It was thereafter, that by the proceeding, marked as Exhibit P3 in the Original Petition, dated3-9-1998, the Municipal Council, Thalassery found that the construction attempted by respondents 2 and 3 was within theprohibited area going by the Coastal Zone Regulation. Respondents 2 and 3 challenged the Coastal Zone Regulation notification byfiling O.P.1991 of 1998. In that Original Petition, they moved C.M.P.3541 of 1998 and this Court by an interim order permitted themto proceed with the construction of a hotel, but qualified it by saying "if there is a road separating the petitioner's property and theriver". Of course, being only an interim order, the construction was subject to the result of the Original Petition or the consequencesarising from the final disposal of the Original Petition. When the original petition finally came up for hearing, respondents 2 and 3 didnot pursue their challenge to the notification. The Division Bench in its judgment dated 18-1-2000 did not go into the merits. Itnoticed that a Coastal Zone Management Committee should examine the stand of respondents 2 and 3 herein taking into accountthe report of the Tahsildar and other relevant materials. The report of the Tahsildar relied on by respondents 2 and 3 herein was insupport of their claim that there was a public road in between their property and the Eranholi River.

5. The proceedings of the Committee referred to in the judgment of this Court in O.P.No.1991 of 1998 was made available forperusal. It was only a minutes produced before us by anyone. But, a letter dated 31-3-2000 was sent by the Secretary toGovernment to the Secretary to the Thalassery Municipality referring to the claim of respondents 2 and 3 informing him that applyingthe provisions contained in CRZ-III(i) of annexure I of CRZ Notification, the Coastal Zone Management Committee agrees for theissuance of CRZ clearance for the construction. We may notice here that what is referred to in the communication, which is markedas Exhibit P.8, is the Original Petition filed by respondent No.2 herein and the counter affidavit filed by the Tahsildar in that OriginalPetition. It may be noted that there is no reference to the "other relevant materials" referred to in the judgment of the DivisionBench in O.P.No.1991 of 1998. the objector, the present petitioner, had filed O.P.No.17443 of 1998 before this Court seeking ademolition of the constructions put up by respondents 2 and 3 and another person. Another Division Bench of this Court byJudgment dated 26-6-2000 stated that since the Committee had already taken a decision and that was accepted by the

Government of Kerala, the Original Petition had become infructuous and that the petitioner can be given opportunity to challengethe order granting permission to respondents 2 and 3. The Division Bench noticed that if the petitioner felt aggrieved by the Orders,it was for him to challenge the same. Meanwhile, the Government called for a report from the Thalassery Nagara Sabha on theunauthorised constructions in violation of the Coastal Zone Regulations going on within that Panchayat. A report was sent up, acopy of which is marked as Exhibit P.10, in which it was recommended that the construction by respondents 2 and 3 was in violationof the Coastal Zone Regulation (CRZ-II) and that an interim order permitting construction was obtained by misleading the High Courtand that an appeal has to be filed against the continuance of the construction in violation. It was also reported that if theconstruction was effected, the construction would be against the terms of Section410 of the Municipalities Act. It was alsorecommended that since the construction was against the plan submitted to the Government and was against the plan submitted tothe Government and approved by the Municipality, Section 393(10 of the Municipalities Act could also be invoked to cancel thebuilding permit. Meanwhile, respondents 2 and 3 had also obtained an order from the Govenrment giving them exemptions from theKerala Building Rules on the terms set out in Exhibit P11. The petitioner has again approached this Court with the present OriginalPetition praying for the issue of a writ of certiorari to quash the permissions and exemptions granted to respondents 2 and 3 and forthe issue of a mandamus directing the Thalassery Municipality and the State of Kerala to take immediate steps to demolish thebuildings which are constructed by the respondents 2 and 3 pursuant to the order Exhibit P8 and for other incidental reliefs. There isalso a prayer for the issue of a writ mandamus directing the Union of India to replace the members of the Committee constitutedunder Exhibit P6 notification with others since they were also in the committee constituted under Exhibit P7 order and to ensure thatthose who were included in the Committee are really interested in protecting the environment and ecology of the country. The caseof the petitioner, in short, is that the construction made and being made by respondents 2 and 3 on the banks of Eranholi Riverclearly violates the Coastal Zone Regulation and the notification issued there under and that the authority constituted as KeralaCoastal Zone Management Committee includes in it members who have absolutely no commitment to the environment and itsprotection and it is just and necessary to reconstitute the Committee with fit persons.

6. The Thalassery Municipality has filed a counter affidavit denying that it had acted without bonafides. Some of the allegationsmade by the Municipality in its counter affidavit indicate that it is more loyal than the King. According to the Municipality theconstruction by respondents 2 and 3 was on the landward side of a building that existed in Survey No.140/4 as far back as the year1935. It had to concede that when a report was sent up earlier, it was seen that there was no road in existence between the siteof the building and the Eranholi River and that the construction was not shown as on the landward side of an existing road. It is alsostated that no evidence of existence of a road or a building was produced when a report was sent up by the Chariman on the earlieroccasion. The counter affidavit winds up by saying that there was a footpath through or by the side of the river and the buildingsare situated in the landward side of the footpath. then it is asserted that there is no violation of CRZ Rules as reported by theSenior Town Planner (Vigilance). It may be noted that even as per this counter affidavit, there is a clear assertion that there wasonly a footpath in between the site where the construction is put up and the Eranholi River.

7. In the statement filed on behalf of the Union of India, it is stated that as per the Coastal Regulation Zone notification, buildingsare not permissible in Coastal Regulations Zone Areas on the seaward side of the existing road or existing authorised structures. It isalso stated that the Kerala State coastal Zone Management Authority had been constituted to monitor violation of the notification.The notification dated 26-11-1998 supersedes any notification brought out by the State Government. All development activitiesshould be as per the provisions laid down in Coastal Regulation Zone Notification, 1991 along the coastal stretches. The violationcommitted under the notification are monitored by the Coastal Zone Management Authority, which has been empowered under theEnvironment Authority, which has been empowered under the Environment (Protection) Act to take action against violation. Theauthority is expected to fulfil the responsibilities entrusted to it. The Union of India had issued necessary notifications and orders forimplementing Coastal Regulation Zone Notification from time to time. It was a duty of the State Government and the authority



implementing Coastal Regulation Zone Notification from time to time. It was a duty of the State Government and the authoritycreated by the State Government to take necessary action against violations. It is significant to note that there is no statementthat the Coastal Zone Management Authority is fulfilling its responsibilities properly or that the State Government or the authorityconstituted by it are properly implementing the Environment (Protection) Act and the concerned regulation.

8. In the counter affidavit filed on behalf of respondents 4 and 5, it is asserted that the concerned authority has gone by the standadopted by the Tahsildar in the counter affidavit in O.P.1991 of 1998 filed in this Court. A reference is made to the direction of theDivision Bench in that Original Petition to consider the question in the light of the counter affidavit filed on behalf of the Tahsildar.But, the counter affidavit does not indicate that the committee examined the other relevant materials that were also referred to bythe Division Bench in its judgment in O.P.No.1991 of 1998 as matters to be considered. Nor does the affidavit indicate what werethe facts that induced the committee to come to the conclusion that there was no violation of the notification. We may reiteratehere that in spite of being directed to do so, the Government Pleader did not produce the file relating to the alleged decision takenby the Coastal Zone Management Committee. What we have is only the following:-

"Item No.9/5 Tellichery Municipality-Construction of File No.5079/ Hotel Buildings and Lodge by Shri. A.M.B1/99/STED Raveendran -CRZ clearance reg.

Relying on the report of the Tahasildar agreed for issuance of CRZ clearance".

From the side of the Kerala Coastal Zone Management Authority what we have is this:-

"Item No.9/3 File No.5392/B1/2000/STED

Sub:- Coastal Zone Management Authority-Confirmation of the decisions take by the Coastal Zone Management Committee.

The Coastal Zone Management Authority confirmed all the decision taken by the Coastal Zone Management Committee,

when the Committee and Authority were in co-existence".

What we mean to say here is that the file showing what were the materials considered was not made available for perusal in spite pfdirection of the Coastal zone Management committee meeting on 21-3-2000, the entire reliance for the clearance was placed on thereport of the Tahsildar and relied on by respondent 2 and 3 before us and no other material in spite of the Division Bench statingthat the Committee should examine the stand of the petitioner taking into account the report of the Tahsildar and other relevantmaterial (emphasis supplied). Nothing was shown to us that the other relevant materials were considered and if considere, whatwere those materials.

9. Respondents 2 and 3 in their counter affidavits to the various Civil Miscellaneous Petitions adopted the stand that they haveconstructed the building based on the clearance issued by the Coastal Zone Management Committee as well as the Kerala coastalZone Management Authority and that considerable investment has been made by them. There was no justification in interfering atthe instance of the petitioner at this stage. The construction was not on the seaward side of any existing road. On the other hand,there was a pathway used by the public between the construction and the Eranholi River. There was also an old construction on theseaward side of the building put up by respondents 2 and 3. Hence, the construction was authorised and it did not violate thenotification. On 8-8-2001, an additional counter affidavit was filed stating that the committee that granted the clearance had thenecessary experts in it and the terms of reference were also specified. the allegations of the petitioner had been examined by thatcommittee of experts and they had given the clearance. There was no violation of the Building Rules as alleged. In a further counteraffidavit filed on 21-8-2001, respondents 2 and 3 asserted that there was no violation on their part and producing therewith thereport of the Senior Town Planner (Vigilance) dated 10-8-1999.

10. We may dispose of one preliminary argument even at this stage. The contention of respondents 2 and 3 that since they havealready constructed the building no relief can be granted to the petitioner cannot be accepted. Respondents 2 and 3, actingthrough their power of attorney, constructed the building pursuant to an interim order obtained in O.P.1991 of 1998. It must bynoted that O.P.1991 of 1998 was filed challenging the Coastal Regulation Zone notification, since the land in which respondents 2and 3 were proposing to construct the building for commercial purpose fell within the Coastal Regulation Zone. In fact , it isconceded on all hands that the area comes under CRZ-II. While challenging the notification, respondents 2 and 3 made an interimapplication seeking permission to construct. That permission can only be an interim permission and the permission stated that ifthere was a road between the construction of respondents 2 and 3 and the river, respondents 2 and 3 could construct.Respondents 2 and 3 thereafter did not pursue their challenge to the validity of the notification when O.P.1991 of 1998 came up forhearing. They bargained for an order from the Division Bench directing the Coastal Zone Management committee to examine thestand of respondents 2 and 3 herein (the petitioners in that Original Petition) by taking into account the report of the Tahsildar andother relevant materials. Therefore, the construction completed by respondents 2 and 3 pending the earlier Original Petition andsubsequently is at the risk of respondents 2 and 3 and has to abide by the final adjudication. By putting up a construction on thebasis of an interim order, respondents 2 and 3 cannot over-reach the Environment (Protection) Act or the Court. The argument thatinvestments have been made is no answer. These aspects are now clear from the decision of the Supreme Court in M.I. Buildings PvtLtd. v. Radhey Shyam Sahu (AIR 1999 SC 2468) and the subsequent decision following it. The fact, therefore, that respondents 2and 3 have put up a construction under the cover of the interim order of this Court in the earlier Original Petition is therefore, of noavail and that cannot stand in the way of this Court examining the legal sustainability or otherwise of the permission granted by theCoastal Zone Management Committee and adopted by the Kerala Coastal Zone Management Authority.

11. In Exhibit P5 judgment, as we have noted, this Court directed the Committee to consider all the aspects including the stand ofrespondents 2 and 3, the report of the Tahsildar produced along with the counter is that Original Petition and other relevantmaterials. Both the decision of the Committee and that of the Authority quoted by us earlier, show that the Committee had actedonly on the basis of the report of the Tahsildar produced along with the counter affidavit in the earlier Original Petition. Theauthority had only adopted the decision of the Committee without any independent application of mind. On behalf of the Committee,the learned Government Pleader could not show that any other relevant materials were considered or that a considered decision wastaken by the Committee based on the materials available. Therefore, the decision of the Committee relied on by respondents 2 and 3is clearly against the terms of the directions contained in Exhibit P5 judgment. Its infirmity is, therefore, clear on its face.

12. There is also another aspect. The Coastal Zone Management Plan does not appear to show that there was any road in betweenthe construction put up by respondents 2 and 3 and the Eranholi River. What is contended before us is that there was a pathway.There is a dispute whether such a pathway existed at all and if it existed, whether it is public pathway which could be considered assufficient to permit construction on the landward side of that pathway in terms of the CRZ notification. There is considerable doubtabout the existence of a pathway in this case in view of the fact that when respondents 2 and 3 applied for permission to put upthe present construction, in the plan that they submitted, they did not show the existence of any road or pathway between the

River and the proposed construction. That, it was absolutely necessary to show the existence of any such road or pathway, if itexisted, is clear from the scheme of the Kerala Building Rules, 1984 under which the permission was sought. rule 7 of the rules



existed, is clear from the scheme of the Kerala Building Rules, 1984 under which the permission was sought. rule 7 of the rulescontemplated an application for Development permit and Rule 7(2), which provided for an application for a Development Permit,insisted that the same should be accompanied by a site plan and service plan together with details and specifications andc4ertificate of supervision as prescribed. Clause (a) of Rule 7(2) provided for the production of a site plan drawn to a scale of notless than 1:400. rule 8 of the Rules provided that an application for Building Permit shall be accompanied by documentary evidenceof plot ownership, the site plan, building plan, service plan, specifications and certificate of supervision as prescribed. Clause (a) ofRule 8(3) indicated how the site plan should be drawn and what all details should be shown. It had to show (i) the boundaries of theplot and of any contiguous land belonging to the owners thereof; including the revenue survey particulars, (ii) the position of theplot in relation to neighboring street, (iii) the name, if any, of the street along which the building is proposed to be constructed. Ithad also to show all adjacent streets within a distance of 12 meters of the plot and the nearest existing street Under Rule 2(104),'street' means an access to building or site. Therefore, if there was a public footpath, public pathway or a road in between the plotof respondents 2 and 3 and the Eranholi River, it was the duty of respondents 2 and 3 to show that pathway or public road in theirsite plan while applying for building permit. It is admitted that in the building plan submitted by respondents 2 and 3, no suchfootpath, public pathway or road is shown. this throws considerable doubt on the question whether there did exist a public pathwayas claimed by respondents 2 and 3. therefore, it was an important question for the committee to consider whether, as a matter offact, there was a public road or public pathway on the seaward side of the proposed construction of respondents 2 and 3. It mustbe noted that the relevant plan produced by the Municipality before this Court as per the direction issued by this Court did not showthat there was a public road in between the site of respondents 2 and 3 and the Eranholi River. What was attempted to be statedon behalf of the Municipality was that there was a public pathway. As we have noted, even the existence of such a pathway isdoubtful in view of the site plan produced by respondents 2 and 3 themselves while seeking permission for putting up a constructionin their plot. It is not seen that the Committee, which was directed to consider all relevant materials, had even applied their mindsto the relevant aspects.

13. In this context, it may also be noted that in the order of the Chairman of the Thalassery Muncipal Council dated 3-8-1998pursuant to a direction issued by this Court in O.P.10485/1997, it is clearly stated that the construction was even in violation of theexemptions granted by the government and that the exemption granted does not appear to be proper in view of the CRZnotification. In that order Exhibit P3 regarding the existence of a road in between the plot of respondents 2 and 3 and the River, it isstated thus:-

"The said road is not shown in the plan submitted by Sri. Raveendran and Divakaran. Further as and when this road and a compoundwall unauthorisedly constructed by them, the Municipality issued a notice to them requiring to demolish the same. Hence I am tostate that there was no such road at the time of notification coming into force and the road now seeing there is a one recentlymade by the respondent-applicants (respondents 2 and 3 here)".

This also indicates that the claim of respondents 2 and 3 that there was a public pathway or a road in between their plot and theEranholi River remains only a claim which should have been seriously investigated by the Committee directed to consider thequestion by a Division Bench of this Court before deciding whether there was violation of CRZ notification or not. In thecircumstances, we find a clear abdication of duty by the Management Committee to consider all the relevant aspects and in thatview, the decision taken by the Committee on 21-3-2000 relying solely on the report of the Tahasildar and agreeing to the issue ofCRZ clearance has to be set aside. Similarly, the decision of the Management Authority, merely adopting the decision of theManagement Committee at its meeting on 22-12-2000, has also to be quashed or set aside.

14. There is the further contention of respondents 2 and 3 that there was already and existing building between their plot and theriver and in view of the existence of that building, the construction cannot be considered to be objectionable in terms of thenotification. On the other hand, on the side of the petitioner it is contended that the building was not in between the building ofrespondents 2 and 3 and the Eranholi River and it is only on one side of it and that it was not a building which would enablerespondents 2 and 3 to claim that their construction was on the landward side of an existing building. It is also contended that whatis contemplated is the existence of buildings and the existence of a single structure or shed that is unused is not sufficient. It is alsocontended that even in that case, the construction must be consistent with the local architecture and the surrounding structuresand it cannot be said that the present construction conforms to such a thing. Obviously this aspect has also to be considered bythe Authority when it reconsiders the case of respondents 2 and 3 for clearance. As of now, the Committee has not applied its mindto this aspect as well.

15. Now it is the common case that the authority now vests, now with the Costal Zone Management Committee constituted by theState Government, but with the Kerala Coastal Zone Management Authority duly constituted. Of course, there is a challenge for thepetitioner to the constitution of that Committee by submitting that the members are not persons committed to the protection of theenvironment and that they should be replaced. The decision of the Supreme Court in Indian Council for Enviro-Legal Action v. Unionof India & ors. (JT 1996 (4) SC 263) is relied on to emphasis the point that protection of the environment was in public interest andenforcement of the Coastal Regulation Zone rules and adherence to the Coastal Management Plan are part of the duties of theState and the High court can interfere and a citizen can approach the High Court for relief's in that regard. On behalf of the State,the contention that some of the members of the Authority are not persons sufficiently committed to the cause of environment is

disputed. We do not think that, for the purpose of this case, it is necessary to go into that aspect. Since we have found that therehas been no proper application of mind by the Committee pursuant to Exhibit P5 judgment and no proper decision was taken and nomaterial can be produced before us to show that there was proper application of mind by the Committee in deciding to grantclearance and the matter has to be directed to be reconsidered, we do not think that this aspect need be pursued further in thiscase. But, it is now clear that any fresh decision on the question of clearance should be taken by the Kerala Coastal ZoneManagement Authority and not by the Coastal Zone Management Committee. We have every reason to hope that they will showproper and needed concern for environmental protection and commitment to the strict enforcement of the concerned laws, Rulesand notifications.

16. An argument is raised that the petitioner's approach to this Court lacks bonafides and that the petitioner has singled outrespondents 2 and 3 in his complaint about violation of the CRZ notification and that there are other buildings in Thalassery whichequally come under the notification. If the argument of respondents 2 and 3 that others have been spared, we can only say thatthe authorites concerned, namely, the Committee at the relevant time, has been guilty of clear impropriety and it is unfortunatethat the State Government has not insisted on the Coastal Regulation Zone Rules and Coastal Zone Management Map being strictlyimplemented and the environment protection laws strictly implemented. The petitioner claims that he is representing an organisationwhich is committed to the protection of the environment is the State, where, according to the petitioner, there is blatant violationof the environment protection laws on all fronts. Even assuming that there is substance in the contention of respondents 2 and 3that the petitioner's approach to this Court is not fully bonafide, we find that when aspects like the oncs projected in this Court arebrought to the notice of this Court and violation or infringement of environment protection laws are alleged, this Court has the futyto look into those complaints, of course, along with the motive of the petitioner in approaching this Court. But, in our view, whenfacts are brought out which are capable of suggesting that there has been a violation of the environment protection laws and theCRZ Notification, this court cannot shut its eyes to the complaint merely on the basis of a plea by the alleged violator of theRegulation that the petitioner has no bonafides in approaching this court. In paragraph 37 of the judgment of the Supreme Court in



Regulation that the petitioner has no bonafides in approaching this court. In paragraph 37 of the judgment of the Supreme Court inIndian Council for Enviro-Legal Action v. Union of India & ors. (JT 1996 (4) SC 263), the Supreme Court has said:-

"There is likelihood that there will be instances of infringement of the main Notification and also the Management Plans, as and whenframed, taking place in different parts of the country. In our opinion, instead of agitating these questions before this court, nowthat the general principles have been laid down and are well-established, it will be more appropriate that action with regard to suchinfringement even if they relate to the violation of fundamental rights, should first be raised before the High Court having territorialjurisdiction over the area in question. We are sure and we expect that each High Court will deal with such issues urgently".

This Court is, therefore, expected to look into complaints of violation of the environment protection laws including the CoastalRegulation Zone Notification and the Coastal Management Plan and has to take appropriate action, if the case is established for it,to ensure that there are no violations of the laws, the Regulations, the notifications and the plans. Moreover, the body representedby the petitioner is not shown to be not one interested in environment. There is also no particular malafides on the side of thepetitioner shown except based on the fact that the petitioner had picked and chosen respondents 2 and 3 alone and has notinitiated action against others. We are confident that the authorites concerned, including the District Collector, Kannur would takethe necessary action to get rid of all violations of the environment protection laws, the Coastal regulation Zone notification and theManagement Plan within the area of his operation. The relief's cannot be denied in this case on the ground that the petitioner hasapproached this court without bonafides.

17. It is also seen that various exemptions have been granted by the Government exempting respondents 2 and 3 from Building Rulesand even those orders of exemptions have been alleged to have violated. That is a matter to be looked into by the local authority,the Municipality. there is a duty in any builder to comply with the terms of an exemption if he has obtained an exemption. Of course,elsewhere we have expressed our apprehension about the blanket power of the Government to grant exemption which boarders on aright to annihilate the very Building Rules. But, that aspect is not relevant for the purpose of this Original Petition.

In this situation, we allow this original petition and quash the permission granted by the Coastal Zone Management Committee andadopted by the Kerala Coastal Zone Management Authority to respondents 2 and 3 to put up hotel buildings. Now that the KeralaCoastal Zone Management Authority is in existence, we direct the Kerala Coastal Zone Management Authority to reconsider theentire issue of grant of clearance to respondents 2 and 3 after hearing respondents 2 and 3 and the petitioner in this OriginalPetition and after considering all relevant matters and to take a fresh decision in accordance with law in the light of the directions inO.P.No.1991 of 1998 and the directions contained herein. A proper quasi-judicial decision taken by it after considering and discussingall relevant aspects may put an end to the controversy. The fresh decision should be taken by the authority within five months fromtoday. Pending any further decision by the Authority, there will be no right in respondents 2 and 3 to carry on any construction,alteration or modification to the building in the property in question. The local authority and the District Collector, Kannur aredirected to ensure that no construction activity is carried on by respondents 2 and 3 until the fresh decision and to ensure that thedecision of the Authority to be taken in fully and properly implemented.

Sd/- [P.K.BALASUBRAMANYAN, JUDGE]

Sd/- M. RAMACHANDRAN, JUDGE.]

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