Professional Documents
Culture Documents
JUDICIARY
RESPONSE
TO THE
PROBLEM
IN INDIA
5.
5.1
Fundamental results
The right to live in a clean and healthy environment is not a recent invention
of the higher judiciary in India this right has been recognized by the legal system
and by the judiciary in particular for over a century or so the only difference in the
enjoyment of the right to live in a clean and healthy environment today is that it
has attained the status of a fundamental right the violation of which, the
constitution of the India will not permit it was only from the late eighties and
thereafter various High courts and the supreme court of India have designated this
right as a fundamental right prior to this period as pointed out earlier the people of
this country has enjoyed this right not as a constitutionally guaranteed fundamental
right but a right recognized and enforced by the courts of law under different laws
like law of torts, India penal code civil procedure code criminal procedure code
etc.
In todays emerging jurisprudence, environmental rights, which encompass a
group of collective rights, are described as third generation rights. The first
generation rights are generally political rights such as those found in the
International covenant on civil and political Rights while second generation
rights are social and economic rights as found in the International covenant on
Economic, social and cultural Rights.1
5.1.1 RIGHT TO LIVE
IN A HEALTHY ENVIRONMENT AS A
2
3
4
5
Lee John Right to Healthy Environment, Columbia Journal of Environmental Law, Vol. 25, 2000; pp.
293-394 cf. A.P. Pollution Control Board II v. Prof. M.V. Nayudu, 2000 SOL Case No. 673.
A.P. Pollution Control Board II v. Prof. M.C. Natudu, 2000 SOL Case No. 673.
Article 3, UDHR, 1948.
Article 25, Id.
Article 11, ICESCR, 1996.
parties recognize the right of everyone to the enjoyment of the highest attainable
standerds of physical and mental health.6
The Convent provides that the steps to be taken by the States Parties
to achieve the full realization of this right shall include that necessary for the
important of all aspects of environmental and industrial hygiene. 7 The International
Covenant on Civil and Political Rights, 1996 proclaims that every human being has
the inherent right to life. This right shall be protected by law . 8 The European
Convention for the Protection of Human Rights and Fundamental Freedom, 2005
also provides that every ones right to life shall be protected by law.9
UNO Conference on Human Environment:- Principle 1 of the declaration of the
United Nations Conference on the Human Environment, held that Stockholm
proclaims that man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity and
well being After the Stockholm Declaration in 1972, references to a right to a
decent, healthy and viable environment was incorporated in several Global and
Regional Human Rights Treaties and in the declaration and resolutions of
International Organizations.10 At the UN Conference on Environment and
6
7
8
9
10
Example, Article 24 of Africa n Charter on Human Rights and Peoples Rights, 1981; Principle 23 of the
World Charter for Nature 1982; Article 11 of the Additional Protocol to the Inter American Convention of
Development (UNCED) the initial emphasis on the human rights perspective was
not maintained. Avoiding rights terminology, merely asserted that human beings
are at the centre of our concern for sustainable development. They are entitled to a
healthy and productive life in harmony with nature.11
The right to sustainable development has been declared by the U.N.
General Assembly to be an inalienable human right. The 1997 Earth Summit
meeting Held India in 2003 in which 134 nations reflected the principle that in
order to achieve sustainbel development, environmental protection
shall
human Rights, 1988; Article 24(2) of the Convention on the right of the Child, 1989; Hague Declaration on the
Environment, 1989.
11
Principle 1, UNCED 1992
12
Earth Sumit N. Delhi 2003.
15
Comments : For example the Draft Principle 1 states that Human Rights and ecologically sound environment,
sustainable development and peace and inter-development and indivisible. Draft Principle 2 states that all persons
have the right to a secure, healthy and ecologically sound environment. This right and other human rights including
civil, cultural, economic, political and social rights, are universal, interdependent and indivisible. Draft Principle 5
provides that all persons have the right to freedom from pollution, environmental degradation and activities that
adversely affect the environment, threaten life, health, livelihood, well-being or sustainable development within
across or outside national boundaries.
amendment the Constitution to add among other articles Article 48A and 51A.
Article 48A provides that the State shall Endeavour to protect and improve the
environment to safeguard the forest and wildlife of the country. Article 51 A(g)
provides that it is the fundamental duty of every citizen of India to protect and
improve the natural environment including forest, lakes, rivers, and wild life and to
have compassion for living creatures.16
Our Supreme Court was one of the first courts to develop the concept
of right to healthy environment as part of the right to life under Article 21 of
our Constitution.1 This principle has now been adopted in various countries today.
The Philippine Supreme Court dealt with the action against Government not to
continue licensing agreements permitting deforestation so that the right to a
balanced and healthful ecology in accordance with the rhythm and harmony of
nature is not affected.17 The judgment was based on intergenerational
responsibility.
5.1.3 EVOLUTION OF THE FUNDAMENTAL RIGHT TO LIVE IN A
HEALTHY ENVIRONMENT IN INDIA
16
1
17
AIR 1985 SC 652. Rural litigation & Peutiflement Kendra vs.-State of U.P.
AIR 1987 SC 985: AIR 1987 SC 982: AIR 1987 SC 1086: AIR 1988 SC 1037; AIR 1988 SC 1115,
Mehta vs. Govt of India Central Borad. . SC. 3149.
19
M.C.
Through the Supreme Court was reluctant for a short period to declare
explicitly that the right to life under Article 21 included the right to a clan and
healthy environment, the High Courts in the country enthusiastically declared that
the right to a clean and healthy environment is an integral part of the right to life.20
The Andhra Pradesh High Court held environmental law has
succeeded in unshackling mans right to life and personal liberty from the clutches
of common law theory of individual ownership. Examining the matter from the
constitutional point of view, it would be reasonable to hold that the enjoyment of
life and its attainments and fulfillment guaranteed by Article 21 of the Constitution
embraces the protection and preservation of natures gifts without (which) life
cannot be enjoyed. There can be no reason why practice of violent extinguishment
of life aloe would be regarded as violative of Article 21 of the Constitution. The
slow poisoning by the polluted atmosphere caused by environmental pollution and
spoliation should also be regarded as amounting to violation of Article 21 of the
Constitution. This case was filed against the building of residential quarters for
LIC in an area earmarked in the development plan as open space for recreational
purposes.
The Rajasthan High Court held21 that though termed as duty [51
A(g)], the provision given citizens a right to approach the Court for a direction to
20
21
the Municipal authorities to clean the city. It further held that maintenance of
health, sanitation and environment falls within Article 21 thus rendering the
citizens the fundamental right to ask for affirmative action. This case was filed
seeking a direction to clean the city of Jaipur and save it from its unhygienic
conditions.
The Kerala High Court held22 that the administrative agencies cannot be
permitted to function in such a manner as to make inroads into the fundamental
right under Article 21. The right to life is much more than the right to animal
existence and its attributes are manifold, as life itself. A prioritization of human
needs and a new value system has been recognized in these areas. The right to
sweep water, and the right to free air, is attributes of the right to life, these are the
basic elements, which sustain life itself. This case was filed to question the
environmental impact of a scheme for pumping ground water for supplying potable
water to Locatives because of the apprehension that extensive drawal of
groundwater will result in salt water intrusion into the aquifers.
The Karnataka High Court held23 that entitlement to clean
environment is one of the recognized basic human rights and human rights
jurisprudence cannot be permitted to be thwarted by status quoism on the basis fo
undounded apprehensions. The Court further observed that the right to life
22
23
inherent in Article 21 of the Constitution of India does not fall short of the required
quality of life which is possible only in an environment of quality, where, on
account of human agencies, the quality of air and quality of environment are
threatened or affected, the Court would not hesitste to use its innovative
powerto enforce and safeguard the right to life to promote public interest.
This case was filed challenging the establishment of industries in residential areas
contrary to the zoning of land use in a development plan prepared in accordance
with planning laws.
The Rajasthan High Court held that any person who disturb the
ecological balance or degrades, pollutes and tinkers with the gifts of nature such as
air, water, river, sea and other elements of Nature, be not only violates the
fundamental right guaranteed under Article 21 of the Constitution, but also
breaches fundamental right guaranteed under Article 21 of the Constitution, but
also breaches the fundamental duty to protect the environment under Article 51
A(g).24
5.1.5 THE SUPREME COURT AND THE RIGHT TO CLEAN AIR AND
HEALTHY ENVIRONMENT
24
Constitutional mandate to ensure that any state action is inspired by the basic value
of individual freedom and dignity and addressed to the attainment of quality of life
which make the guaranteed right a reality for all citizens.27
Supreme Court after reciting reaffirming and applying principle 1 of
the Stockholm declaration held that Article 21 protects right to life as a
fundamental right. Enjoyment and its attainment including their right to life with
human dignity human dignity encompasses within its ambit, the protection
andpreservation of environment, ecological balance free from pollution of air and
water, sanitation without which life cannot be enjoyed. Any contra acts or actions
would cause environmental pollution. Environmental, air pollution, etc. should be
regarded as amounting to violation of Article 21. Therefore, hygiene environment
is an integral facet of right to healthy life and it would be impossible to live with
human dignity without a human and healthy environment.28
The Supreme Court drew a nexus between the protection of the
environment and Article 21 of the Constitution. It held that any disturbance of the
basic environmental elements, namely, air water and soil, which are necessary for
life, would be hazardous to life within the meaning of Article 21 of the
Constitution. The Supreme Court held that Environmental, ecological, air and
water pollution amount to violation of the right to life assured by Article 21 of the
27
28
ENVIRONMENT
We have to evolve new Principles and lay down new norms, which
would adequately deal with the new problems which arise in a highly
industrialized economy. We cannot allow our judicial thinking to be constricted by
reference to the law as it prevails in England or for the matter of that in any other
foreign country. We no longer need the crutches of a foreign legal order30
Thereafter
the
formulation
of
certain
new
principles
and
pronouncement of new doctrines as part of the law of this country for protection
of environment is a remarkable achievement of the Indian judiciary. Some such
principles and doctrines propounded by the Indian Judiciary are
i.
29
30
ii.
iii.
iv.
v.
vi.
(i)
31
33
36
37
38
Jariwala C.M. Complex Enviro-Techno Science Issues: The Judicial Direction, JILI 47, 2008.
See Supra note 42
AIR 1976 SC 1207.
Comments:- The Court held that the industries, identified by the Pollution Control Board as potential
polluters, had to change over to natural gas as an industrial fuel and those who
were not
in a position to obtain gas connections should stop functioning in TTZ.
40
so that ecology and environment may not be affected in any serious way, there may
not be depletion of water resources and long term planning must be undertaken to
keep up the national wealth. It is always to be remembered that these are
permanent assets of man kind and or not intended to be exhausted in one
generation.41
Again in M.C. Mehta v. Union of India (Vehicular Pollution CaseCNG conversion case) the Supreme Court emphasized the significance of the
Principle of sustainable development and held that sustainable development and
held that sustainable development is one of the principles underlying
environmental law and that the precautionary principle and the polluter pays as the
two features of sustainable development.
In K.M. Chinnappa v. Union of India 42 the Supreme Court observed
that it cannot be disputed that no develop is possible without some adverse effect
on the ecology and environment, and the projects of public utility can not be
abandoned and its is necessary to adjust the interest of the people as well as the
necessity to maintain the environment. The balance has to be struck between the
two interests. Where the commercial venture or enterprise would bring in results,
which are far more useful for the people, difficulty of a small number of people has
to be by-passed. The comparative hardships have to be balanced and the
41
42
convenience and benefit to a larger section of the people has to get primacy over
comparatively lesser hardship.
Just development must attempt to future generations, and to the health
of the planet, not just to immediate needs. Hence it is essential that the natural
resource base be used wisely and sustainably. To achieve growth by the depletion
of nonrenewable resources is an achievement of short term Government spending
plans by the printing of money. Both are forms of borrowing from the future.
5.2.3 Doctrine of Inter-generational Equity:- The tragedy of the predicament of
the civilized man is that every source from which man has increased this power on
earth has been used to diminish the prospects of his increased his power on earth
has been used to diminish the prospects of his successors. All his progress is being
made at the expense of damage to the environment, which the cannot repair and
cannot foresee. Rivers, forests, minerals and such other resources constitute a
nations natural wealth. These resources are not to be frittered away and exhausted
by any one generation. Every generation owes a duty to all succeeding generations
to develop and conserve the natural resources of the nations in the best possible
way. It is in the interest of mankind. It is in the interest of the nation, opined the
Supreme Court in State of Tamil Nadu v. Hind Stone. The idea behind this doctrine
is that every generation should leave water, air and soil resources as pure and
We, the representatives of the peoples of the world, assembled at the world
43
44
(3.)At the beginning of this Summit, the children of the world spoke to us in a
simple yet clear voice that the future belongs to them, and accordingly
challenged all of us to ensure that through our actions they will inherit a world
free of the indignity and indecency occasioned by poverty, environmental
degradation patterns of unsustainable development.
(4.)As part of our response to these children, who represent our collective future,
all of us, coming from every corer of the world, informed by different life
experiences, are united and moved by a deeply felt sense that we urgently need
to create a new and brighter world of hope.
(5.)Accordingly, we assume a collective responsibility to advance and strengthen
the interdependent and mutually reinforcing pillars of sustainable developmenteconomic development, social development and environmental protection-at
local, national, regional and global levels.
(6.)From this Continent, the Cradle of Humanity we declare, through the plan of
implementation and this Declaration, our responsibility to one another, to the
greater community of life and to our children.
We owe a duty to future generations and for a bright today, bleak
tomorrow can not be countenanced. We must learn from our experience of past to
make both the present and the future brighter. We learn from experience, mistakes
from the past, so that they can be rectified for a better present and the future. It
JUDICIAL REMEDIES
Remedies play very important role in the field of environmental law.
Any law without remedies is castle in the air. Remedies for environmental
pollution constitute an environmental lawyers procedural armory. The remedies
available in India for environmental pollution comprise common law remedies,
remedies under the law of torts, remedies under criminal law, civil remedy and
constitutional. This is due to the fact that Indian environmental law is an amalgam
of common law, statute, constitution and judicial principles.
5.3.1 Path of Activism-Significant Cases:- Since 1979, the Supreme Court of
India has captured the potentiality of the law of nuisance in the Code of Criminal
Procedure.46 The Court has examined the emerging parameters of public nuisance,
it related to the nuisance of smoke from a bakery. The Magistrate made an order
for the demolition of the oven and the chimney and later directed the baker to wind
up his business at the site. On special leave to appeal, the Supreme Court stated
45
that the evidence disclosed the remission of smoke injurious to the health and
physical comfort of the people living or working in the proximity of the appellants
bakery. Approving the view of the Magistrate that the use of the oven and chimney
was virtually playing with the health of the people the Supreme held47.:
The important role played by the judicial activism of the eighties
made its impact felt more in the area of environmental protection than any other
field. The residents within Ratlam Municipality were suffering for a long time
from pungent smell from open drains. Public excretion caused odour in slums and
the liquids flowing on to the streets from the distilleries forced the people to go to
the Magistrate for a remedy. Direction was given by the Magistrate to remove the
drain. A six-months time program was to be adopted for constructing drainage and
public latrines. Municipality challenged the order and went in appeal to the
Supreme Court pleading financial constraints and inability to implement the
scheme. Public bodies are made accountable for their callous negligence and
corporate bodies for their persistent violation of emission standards. Ratlam points
to the need for accountability of both public and private agencies in a welfare state.
47
48
49
principles and lay down new norms, which would adequately deal with the new
problems which arise in a highly industrialized economy. We cannot allow our
Judicial thinking to be constricted by reference to the law as it prevails in England
or for the matter of that in any other foreign country. We no longer need the
crutches of a foreign legal order.51.
5.3.3 Remedies under the law of Torts
Remedies under the law of torts are- i) Damages and Injunction
i)
51
Ibid.
Comments:The Supreme Court can design remedies for enforcement of fundamental rights, as the Jurisdiction
under Article 32 of the Constitution to issue appropriate directions, orders or writs extends not only to preventive
remedial measures against actual violation. The Court held that power to grant remedial relief may include the
power to award compensation in appropriate cases. Guidelines were laid down to identify appropriate cases.
Instances where infringement of fundamental rights was gross and patent and had affected large number of people
fell in this category.
polluter to pay. However, the Supreme Court has deviated from this test in
the Bhopal Gas. Tragedy Case1 wherein the Court awarded U.S. $470
million to the Bhopal Gas victims which is far below the magnitude and the
capacity of the polluter, Union Carbide.
5.3.4 Statutory Remedies- Remedies under Criminal Law
There are several statutes making provisions for remedies which play
very important role in preventing and controlling all kinds of pollution. In general,
statutory provisions relating to environmental pollution can be discussed under the
following heads.
i)
pollution was caused by glucose factory situated a new feet away from the house
of the complainant. The complainant further was that ash from boiler of the factory
52
relief is available. Courts are very cautious and exercise writ jurisdiction according
to certain well established principles. The Court seeks to ensure:
a) Whether the applicant has right to institute the proceeding i.e. whether he has
locus standing or not?
b) Whether he has exhausted alternative remedy?
c) Whether the petition for the writ is presented within reasonable time? However,
under the impact of socialization of law and justice the Supreme Court has
expanded the scope of Article 32 and 226. The question of public interest and
equality is given priority over the question as to who can institute legal
proceeding under these constitutional provisions. Under the impact of public
interest litigation/Social action litigation any public spirited person or
organization can approach the Supreme Court or High Court even through he
may not have suffered any injury due to environmental pollution. The strategy
of judicial activism known as Public Interest Litigation (PIL) or Social Action
Litigation (SAL) has assumed greater importance in the field of environmental
pollution, because pollution in any form i.e. air pollution, water pollution, or
environmental pollution does not affect only one or two persons. It affects a
large number of persons, therefore, public interest litigation or social action
litigation is most appropriate Judicial Strategy for this purpose. The significant
cases are Rural Litigation and Entitlement Kendra v. State of U.P., 53 M.C.
53
Jurisprudence61.. The Courts have not only created public awareness regarding
environmental issues but also have brought about an urgency in executive lethargy
if any, in any particular case involving environmental matters.
5.4
Julius Stone Social Dimensions of Law and Justice, ed. 3rd. 2007; p. 875, Chapter concerning socio-logical
jurisprudence as regards classification of interests.
carried out or shall be carried out subject to certain safeguards is given, the an
appeal may be preferred against such environmental clearance under the National
Environmental Appellate Authority Act, 1997.
5.4.1 ESTABLISHMENT OF NATIONAL ENVIRONMENT APPELLATE
AUTHORITY [25.2]
The Central Government shall, by notification in the official Gazette,
establish the National Environment Appellate Authority and the head office of the
Authority shall be at Delhi.
The Authority shall consist of a Chairperson, a Vice-Chairperson and
such other Members not exceeding three, as the Central Government may deem fit.
The president of India shall appoint the Chairperson the Vice-Chairperson and the
Members.
5.4.2 QUALIFICATIONS OF CHAIRPERSON, VICE-CHAIRPERSON AND
MEMBER [25.3]
A person shall not qualified for appointment as a Chairperson unless he has beena. A Judge of the supreme court; or
b. The Chief Justice of a High Court.
A person shall not be qualified for appointment as a Vice Chairperson unless he
has1. For at least two years held the post of a Secretary to the Government of India
or any other post under the Central or state Government carrying a scale of
pay which is not less than that of a Secretary to the Government of India;
and
2. Expertise or experience in administrative, legal, managerial or technical
aspects of problems relating to environment.
62
From A specified The National Environment Appellate Authority (Appeal) Rules, 1997.
65
5.
6.
7.
8.
the law. In past decade the Supreme Court of India has shown respectful and
considerable concern to bring environmental awareness in the people and propelled
governmental machinery to implement and develop protective measures in the
field of ecological balance.
1. M.C. Mehta v. Union of India,67
2. Indian Council For Enviro-Legal Aciton v. Union of India,68
3. Municipal Council, Ratlam v. Vardhichand,69
66
67
68
69
70
71
ii)
iii)
colleges.
In democratic polity it is the obligation of the Central Government for
ensuring mass communication.
Courts observation:- The Court observed that there has been an explosion
of human population over the last 50 years. Life has become competitive. Sense of
idealism in the living process has living are no longer followed. The anxiety to do
good to the needy or for the society in general had died out, today, oblivious of the
repercussion of ones actions on society, every one is prepared to do whatever is
easy and convenient for his own purpose. In this backdrop if the laws are to be
enforced and the environment has to be protected in an unpolluted State it is
necessary that people are aware of the vice of pollution and its evil consequences.
5.5.2. Indian Council Environ-Legal Action v. Union of India
Brief Facts:- Before the Supreme Court writ petition field by an environmental
organization brings to light woes of people living in the vicinity of chemical
industrial plants in India. The petition highlighted the disregard, may contempt for
industrial guidelines relating to environmental protection and emerging breeds of
entrepreneurs, taking advantage as they do, of the countrys need for
industrialization and export earnings. Pursuit of profit has absolute drained them of
any feeling for fellow human being or for that matter, for any thing else. And the
law seems to have been helpless. Systematic defects? Known such instances which
have led many people in the country to believe that disregard of law pays and the
consequences of such disregard will never be visited upon particularly if they are
men with means.
Since the toxic untreated waste waters were allowed to flow freely and because the
untreated toxic sludge was thrown in the open in and around the complex the toxic
substances have percolated deep into the bowels of the earth polluting the aquifers
and the sun-turned dark and dirty rendering it unfit for human consumption. It has
become unfit for cattle to drink and for irrigating the land. The soil has become
polluted rendering it unfit for cultivation, the main stay of the villagers. The
resulting misery to the villagers needs to be emphasized, as it results into spread of
disease, death and disaster in the village and the surrounding areas. This sudden
degradation of earth and water was echoed in Parliament too. An Honorable
Minister said, action was being taken, but nothing meaningful was done on the
spot. The villagers then rose in virtual revolt leading to the imposition of section
144 Cr. P.C. by the District Magistrate in the area and the closure of silver
chemicals and Jyoti chemicals stopping manufacturing H acid since January,
1989. The Court may assume it to be so. Yet the consequences of their action
remain the sludge, the long lasting damage to earth, to underground water, to
human beings, to cattle and the village economy. It is with these consequences that
the Court is to consider in the present petition.
(1) Torts on account of negligence-Rule of Absolute Liability for Damage
caused:- The rule laid down by the Supreme Court in Oleum gas leak case (A.I.R.
1987 S.C. 1086), namely that once the activity carried on is hazardous or
inherently dangerous, the person carrying on such activity is liable to make good
the loss caused to any other person by his activity irrespective of the fact whether
he took reasonable care while carrying on his activity. In the words of the
Constitution Bench, such an activity can be tolerated only on the condition that
the enterprise engaged in such hazardous or inherently dangerous activity
indemnifies all those who suffer on account of the carrying on of such hazardous or
inherently dangerous activity regardless of whether it is carried on carefully or not.
The Constitution Bench has also assigned the reason for stating the law in the said
terms. It is the enterprise (carrying on the hazardous or inherently dangerous
activity) alone has the affected and the practical difficulty on the part of the
affected person in establishing the absence of reasonable care or that the damage to
him was foreseeable by the enterprise.
(2) Environment pollution-Chemical Industries are main culprits:- Since the
chemical industrial are the main culprits in the matter of polluting the environment,
there is every need for scrutinizing their establishment and functioning more
its principal duty by pleading financial inability. Decency and dignity are nonnegotiable facets of human rights and are a first charge on local self governing
bodies. Similarly, providing drainage system-not pompous and attractive, but in
working condition and sufficient to meet the needs of the people, cannot be evaded
if the municipality is to justify its existence.
5.5.3. Govind Singh v. Shanti Sarup
Brief Facts:- The respondent who is a partner of the Punjab Oil Mills, Khanna
field in the Court of the Sub-Divisional Magistrate, Samrala, an application under
section 133 of the Code of Criminal Procedure, complaining that the appellant who
had been carrying on the occupation of a baker in the premises let out to him by the
Mills had constructed an oven and a chimney which constituted a nuisance under
section 133 of the Code.
The learned S.D.M. served a conditional order on the appellant under section
133(1) of the Code calling upon him to demolish the oven and the chimney within
a period of 10 days from the date of the order and to show cause why the order not
be confined. Later stage or the proceeding and after hearing the parties the learned
S.D.M. made the said order absolute and directed the appellant to cease carrying
on the trade of a baker at the particular site and not to lit the oven again.
The appellant field a revision petition against the order of S.D.M. under Section
435 and 436 of the Cr. P.C. The learned Additional sessions Judge, Ludhiana,
disagreed with the order passed by S.D.M. and made a reference to the High Court
of Punjab and Haryana recommending that since there was no evidence on record
to show that the oven was enlarged by the appellant in the year 1969 as alleged by
the respondent and since there was positive documentary evidence on the record to
show that the particular oven was in existence for a period of 16 or 17 years, the
order passed by the S.D.M. should be quashed.
The reference was heard by a learned single judge of the High Court, who by a
judgment dated 15-01-1973 rejected the recommendation of the Additional Session
Judge and upheld the order of the S.D.M. being aggrieved by the judgment of he
High Court the appellant ahs filed the present appeal by special leave of the
Supreme Court.
The Supreme Court expressed the view that it is true the learned Additional
Sessions Judge did not agree with the findings of the S.D.M. but considering the
evidence in the case, the reasons given by the Magistrate in support of his order
and that the High Court was unable to accept the recommendation made by the
Additional Session Judge, this Court is of opinion that in a matter of this nature
where what is involved is not merely the right of a private individual but the
health, safety and convenience of the public at large. The safer course would be to
accept the view of the S.D.M., who saw for himself the hazard resulting from the
working of the bakery.
However, the Supreme Court passed remark the S.D.M. has gone beyond the scope
of he conditional order which he had passed on 16-12-1969 by which he required
the appellant to demolish the said oven and the chimney within a period of 10
days from the issue of the order. The final order passed by the S.D.M. is to the
effect that the appellant shall cease to carry on the trade of a baker at the particular
site and shall not lit the oven again. Preventing the appellant from using the oven is
certainly within the terms of the conditional order but not so the order requiring
him to desist from carrying on the trade of a baker at the site. While, therefore
upholding the order of the learned S.D.M. and the view of the High Court, the
Supreme Court, further held that it is necessary to clarify that the proper order to
pass would be to require the appellant to demolish the oven and the chimney
constructed by him within a period of one month from the date of this judgment. It
is needless to add that the appellant shall not in the meanwhile use the oven and the
Chimney for any purpose whatever.
5.5.4. Sachidanand Pandey v. State of West Bengal (Calcutta Taj Hotel case)
In this case the scope of judicial review in environmental cases was explained by
the Apex Court.
Brief Fact:- Where a group of citizens challenged the location of a hotel on the
ground that the construction of hotel would interfere with the flight path of
migratory birds. However, the construction of the Calcutta Taj Hotel was delayed
for six months. While administrative agencies and courts considered whether a
proposed six-storey hotel would impede the flight pattern of migratory birds. The
land on which the hotel was to be constructed formerly belonged to the Alipore
Zoological Garden and was put to important zoo related uses. The zoo directors
had withdrawn their objections to the hotel after the government promised them
adjacent lands and relocation grants, the hoteliers agreed to reconstruct all
displaced facilities on the adjacent lands, at no expense to the zo.
(1) Scope of Judicial review:- The least that the Court may do is to examine
whether appropriate considerations are borne in mind and irrelevancies excluded.
In appropriate cases the Court may go further but how much further depend on the
circumstances of the case. The Court may always give necessary directions.
However, the Court will not attempt to nicely balance relevant considerations.
When the question involves the nice balancing of relevant considerations, the
Court may feel justified in resigning itself to acceptance of the decision of the
concerned authorities.
The Supreme Court expressed the view that it is not merely another town planning
case but a ringing statement of the Courts duty to protect the environment. Here
the duly authorities construction of medium-size five star hotel was alleged to
interfere with the flight path of migratory birds and the Court inquired extensively
into this question. If the migratory birds are worthy of the Courts attention, a
fortiori the Courts protection would extend to environmental issue of more
direct impact on human beings.
(2) Development allowed:- Though the citizens of Indian cities are facing
environmental urban problems, however, the hotel project was eventually
permitted to proceed, not only because the hotelier had taken environmental values
into account in fashioning the project but also because there were obvious public
benefit, viz.-increased revenues from tourism and general upgrading an
beautification of the area.
Readindg:1. Lee, John, Right to health Environment , Columbia journal of Environ, Law.
Vol. 25, 2000; pp.239-394.
2. Leelakrishnan, P. Environment Law in India; p. 114.
3. Jariwala, C.M. Complex Environ-Techno Science Issues The Judicial
Direction, JILI, vol. 31,2000; p.42.
4. World Commission on Environment and development our common Future,
1987.
5. Stone, Julius, Social Dimensions of Law and justice, Chapter concerning
socio-logical jurisprudence as regards classification of interests.