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CASE NO.:

Appeal (civil) 7405 of 2000

PETITIONER:

KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD

RESPONDENT:

SRI C. KENCHAPPA & ORS.

DATE OF JUDGMENT: 12/05/2006

BENCH:

RUMA PAL & DALVEER BHANDARI

JUDGMENT:

JUDGMENT

DALVEER BHANDARI, J. :

In consonance with the principle of `Sustainable Development', a serious

endeavour has been made in the impugned judgment to strike a golden balance

between the industrial development and ecological preservation.

This appeal is directed against the judgment passed in writ petition no.

36638 of 1999 dated 26.11.1999 by the High Court of Karnataka at Bangalore.

The respondent agriculturists, who were affected by the acquisition of

lands of different villages, filed a writ petition under Article 226 of the

Constitution with a prayer that the appellant Karnataka Industrial Areas

Development Board (in short KIADB) be directed to refrain from converting

the lands of the respondents for any industrial or other purposes and to

retain the lands for use by the respondents for grazing their cattle. The

respondents have filed a writ petition indicating that they are residents

of villages and their lands bearing Survey Nos. 79 and 80 of Nallurahalli

village are gomal lands (grazing lands for cattle), Survey No. 81 is part

of the green-belt in the comprehensive development plan and Survey No. 34

is reserved for the residential purposes. According to the respondents, if

the entire land is acquired and an industrial area is developed, the

villagers would lose the gomal lands, causing grave hardship to them as

well as their cattle. It was also submitted that there would be an adverse

impact on the environment of the villages as the industrial area increases.

Their prayer in the petition was that the gomal lands and the lands

reserved for the residential purposes in the green-belt should not be

acquired and allotted for non-agricultural purposes, including industrial

purposes.

It was submitted by the respondents that deprivation of their land is

violative of their fundamental rights guaranteed under Articles 14 and 21

of the Constitution. The respondents have alleged that the appellant and

the State of Karnataka have violated the zonal regulations in allotting the

lands to Gee India Technology Centre Pvt. Ltd. (respondent no. 3 in the

writ petition). It was submitted that the allotment was made hurriedly

without following the regular procedure and therefore, the same was illegal

and arbitrary.

The respondents also submitted that without hearing the affected parties,

notification under Section 3(1) of the Karnataka Industrial Areas

Development Board Act, 1966 (for short the Act) has been issued.

The appellant and the State Government have denied the allegations levelled

in the writ petition. It was submitted by them that the said lands were not

used as gomal lands (as alleged) as urbanization had spread in the area and

a number of industries had come up.

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The appellant submitted that the State has ample power to issue

notification under Section 31 of the Act and acquire the land under Section

28 of the Act. It was submitted that the entire procedure of law was duly

followed by the appellant.

It was submitted that Gee India Technology Centre Pvt. Ltd. was going to

establish only a Research and Development Project and they were not

acquiring the lands for manufacturing process which may emit any polluted

air or create polluted atmosphere.

It was also stated in the counter affidavit filed by the appellant and the

state of Karnataka in the writ petition that the land allotted to Gee India

Technology Centre Pvt. Ltd. was a government land to the extent of 20 acres

and the remaining land was acquired by the appellant from private owners.

In case, the respondents have any objection, it was open for them to take

appropriate steps in the proceedings when taken under Section 28 of the

Act. It was submitted that there was no provision under Section 3(1) of the

Act for issuing notice to the land owners before the declaration is

published under Section 3(1) of the Act. It was submitted that the

appellant has followed the entire procedure meticulously and there was no

violation of procedure or any irregularity in the declaration and allotment

of land to Gee India Technology Centre Pvt. Ltd.. It was submitted that Gee

India Technology Centre Pvt. Ltd. was going to set up Research and

Development Project built as per their world class environmental health and

safety standards employing latest technology in handling waste disposal.

Therefore, the apprehension of the respondents that the project would cause

environmental degradation is wholly misconceived. The environment, health

and safety standards of the present project, according to Gee India

Technology Centre Pvt. Ltd., would exceed or equal to their GE's

international standards. It was stated in the High Court that Gee India

Technology Centre Pvt. Ltd., recognizing the intellectual talent, has

established a world class research and development centre to conduct high

value research and development activities to reverse the process of `brain

drain' that is taking place in India. It was also submitted that they have

paid a price for allotment of the lands.

It was stated that Gee India Technology Centre Pvt. Ltd. was going to

employ about 500 scientists and 150 staff members and another additional

250 technical people.

The Division Bench specifically observed that having regard to the

circumstances of the case and the nature of establishment of Gee India

Technology Centre Pvt. Ltd. and its activities, which is essential for the

growth of the computer industry and research and development in information

technology, the Court did not wish to disturb the allotment of lands made

to Gee India Technology Centre Pvt. Ltd.. The Court in the impugned

judgment directed that the notification under Section 3(1) of the Act and

consequential proceedings or notification are orders issued in regard to

the other disputed lands in the writ petition are quashed, to the extent of

the lands which were reserved for gazing cattle, agricultural and

residential purposes.

The Division Bench in the impugned judgment held that for maintaining

ecological equilibrium and pollution free atmosphere of the villages, the

KIADB be directed to leave a land of one kilo metre (for short one k.m.) as

a buffer zone from the outer periphery of the village in order to maintain

a `green area' towards preservation of land for grazing of cattle,

agricultural operation and for development of social forestry and to

develop the area into a green belt. This measure would preserve the ecology

without hindering the much needed industrial growth, thus striking a

balance between the industrial development and ecological preservation. The

Court further directed that whenever there was an acquisition of land for

industrial, commercial or non-agricultural purposes, except for the

residential purposes, the authorities must leave one k.m. area from the

village limits as a free zone or green area to maintain ecological

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equilibrium.

The appellant KIADB preferred a special leave petition before this Court on

the ground that the directions given in the impugned judgment are contrary

to the express statutory provisions, in particular Section 3(1) and Section

47 of the KIADB Act.

According to the appellant, the High Court has committed a serious error in

issuing directions to leave one k.m. area from the village limits as a free

zone or for the green belt. According to the appellant, the effect of the

impugned judgment will be that, in future, the appellant would not be able

to acquire lands for the establishment and development of the industrial

area in the State of Karnataka.

The appellant also submitted that the High Court has exceeded its

jurisdiction under Article 226 of the Constitution by issuing blanket

directions which tantamount to judicial legislation.

The appellant further submitted that the High Court has failed to

appreciate that the lands in question have lost their agrarian character a

few decades ago. It was also submitted that the fact of the matter was

that, because of rapid urbanization; these villages have no longer remained

villages, but have become part and parcel of the city of Bangalore.

The appellant also mentioned that the High Court has failed to appreciate

`that the impugned notification was dated 24.11.1998 and thereafter, the

industrial layout was formed, earth work was done, roads were constructed,

water supply lines had been laid and other infrastructural facilities were

created spending substantial sum of money.

The respondents have kept quiet all the while when civil construction in

the area was going on. The appellant has prayed that the impugned judgment

of the High Court be set aside and, during the pendency of this appeal,

this Court may grant stay of the operation of the impugned judgment passed

by the High Court. This Court, on 28.2.2000, while issuing notice to the

respondents, directed stay of the operation of the impugned judgment of the

High Court.

Mr. K.K. Venugopal, learned senior counsel appearing for the appellant,

submitted that the entire compensation has been paid to the respondents and

in view of the stay of the impugned judgment of the High Court granted by

this Court, the entire developmental work has been completed and the

respondents' writ petition has now become infructuous. He submitted that,

perhaps, for this reason, the respondents had lost interest in this

litigation and have not appeared before this Court. Since, at the time of

hearing of this appeal, no one appeared on behalf of the respondents,

therefore, this Court requested Mr. A. R. Madhav Rao, advocate, to assist

the Court as an amicus curiae. The appeal was adjourned for a week to

enable Mr. Rao to prepare the case and when the case was taken up on

25.4.2006 again, no one appeared for the respondents.

Mr. Venugopal, submitted that, at the time of issuance of the notice under

Section 3(1) of the Act, no notice was required to be given to the land

owners at that stage according to the scheme of the Act.

Mr. Venugopal referred to the provisions of the Karnataka Industrial Areas

Development Act, 1966 and drew our attention to Section 28 of the Act which

armed the appellant to acquire any land for the development. The relevant

Section 28(1) of the Act reads as under:

"28. Acquisition of Land.- (1) If at any time in the opinion of the State

Government, any land is required, for the purpose of development by the

Board, or for any other purpose in furtherance of the objects of this Act,

the State Government may by notification, give notice of its intention to

acquire such land."

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Mr. Venugopal submitted that the KIADB can acquire `any land' for the

purpose of development or for any other purpose in furtherance of the

object of this Act. According to him, under this Act the appellant could

acquire even the gomal lands. At the stage of issuance of notification

under Section 28 of the Act notices have to be issued to the landowners.

Mr. Venugopal referred to Section 47 of the Act, which reads as under:

"47. Effect of provisions insistent with other laws.- The provisions of

this Act shall have effect notwithstanding anything inconsistent therewith

contained in any other law."

He submitted that, according to Section 47 of the said Act, the appellant

could acquire `any land'. In other words, `any land' shown either in the

`Master Plan' or `Town Planning Act' as green belt can be acquired by the

appellant according to the clear language, spirit and intention of Section

47 of the Act.

He also submitted that the appellant can also acquire the land earmarked

for the residential use under the `Comprehensive Area Development Plan'.

Mr. Venugopal further submitted that both the development and protection of

environment were traceable to Article 21 of the Constitution.

Mr. Venugopal contended that the High Court has erroneously applied the

ratio of the judgment of M.C. Mehta v. Union of India, [1997] 3 SCC 715.

The fact of that case has no application so far as this case is concerned.

He also placed reliance on the other decided cases of this Court.

Mr. A. R. Madhav Rao, learned amicus curiae, submitted that while acquiring

the land by the appellant, the impact of industrialization on environment

of the concerned area has to be taken into consideration in the larger

public interest.

Mr. Rao also submitted that there must be a proper assessment of the impact

and implications on environment and ecology. He has also drawn our

attention to Clause 12 of the allotment letter which, according to him,

requires modification. The relevant Clause 12 reads as under:

"You are requested to obtain necessary clearance for your project from the

Karnataka State Pollution Control Board and the Department of Ecology and

Environment before execution of agreement wherever applicable."

He submitted that the allottee cannot have discretion in the matter of

obtaining necessary clearance for the project from the Karnataka State

Pollution Control Board and the Department of Ecology and Environment for

execution of the agreement, but it has to be made a mandatory condition.

We have heard Mr. Venugopal and Mr. Rao, the learned amicus curiae. We are

of the considered view that before acquisition of the land; the appellant

must carry out necessary exercise regarding the impact of development on

ecology and environment. Development and environment have to go hand in

hand.

We are also clearly of the considered view that it should be made mandatory

for the allottee to obtain necessary clearance for the project from the

Karnataka State Pollution Control Board and the Department of Ecology and

Environment before execution of the agreement. Consequently, we direct the

appellant to incorporate this condition in the letter of allotment

requiring the allottee to obtain clearance before putting up any industry.

The condition has to be mandatory.

It may be pertinent to mention that the High Court had an occasion to

examine the impact of Section 47 of the Act. The Court observed that, by

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reading the said provision, it is evident that Section 47 has got an

overriding effect.

In this case, since the respondents have not appeared before us, in our

opinion, this Court's decision on Section 47 of the Act may have far

reaching impact and ramification, therefore, we are reserving our opinion.

on the validity of Section 47 of the Act to be decided in an appropriate

case.

Environment and Constitutional Provisions

Professor Michael von Hauff of the Institute for Economics and Economic

Policy, University of Kaiserlantern, Germany, in his article "The

Contribution of Environmental Management Systems to Sustainable

Development: Relevance of the Environmental Management and Audit Scheme"

aptly observed that, "it is remarkable that India was the first country in

the world to enshrine environmental protection as a state goal in its

Constitution".

In the impugned judgment serious concern regarding degradation, of ecology

and environment has been seriously articulated.

According to the impugned judgment, preservation and protection of

environment are part of Article 21 of the Constitution. Article 21 reads as

under:

"21. Protection of life and personal liberty. - No person shall be deprived

of his life or personal liberty except according to procedure established

by law."

In the impugned judgment; the High Court also gave reference to the

Directive Principles of the State Policy. In articles 48A and 51-A(g) of

the Constitution, a strong foundation has been laid down pertaining to

environment, preservation of forests, wild life, rivers and lakes.

The Constitutional philosophy enshrined in these Constitutional Provisions

must be implemented. Articles 48A reads as under :

"48A. Protection and improvement of environment and safeguarding of forests

and wild life. - The State shall endeavour to protect and improve the

environment and to safeguard the forests and wild life of the country."

The framers of the Constitution expressed concern and importance of

protection and improvement of forests, lakes, rivers and wild life for

preserving the environment. According to the spirit of the Constitution, it

is the bounden duty of all to protect our natural environment. Reference to

Article 51-A(g) is also very important.

Article 51-A(g) reads as under:

"51-A(g) ......to protect and improve the natural environment including

forests, lakes, rivers and wild life, and to have compassion for living

creatures'

Environment degradation and its consequences:

Experience of the recent past has brought to us the realization of the

deadly effects of development on ecosystem. The entire world is facing a

serious problem of environmental degradation due to indiscriminate

development. Industrialization, burning of fossil fuels and massive

deforestation are leading to degradation of environment. Today the

atmospheric level of carbon dioxide, the principal source of global

warming, is 26% higher than pre-industrial concentration.

The earth's surface reached its record level of warming in 1990. In fact,

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six of the seven warmest years on record have occurred since 1980,

according to the World Watch Institute's 1992 report. The rise in global

temperature has also been confirmed by the Inter-Governmental Panel on

Climate Change set up by the United Nations in its final report published

in August 1990. The Global warming has led to unprecedented rise in the sea

level. Apart from melting of the polar ice it has led to inundation of low-

lying coastal regions. Global warming is expected to profoundly affect

species and ecosystem. Melting of polar ice and glaciers, thermal expansion

of seas would cause worldwide flooding and unprecedented rise in the sea

level if gas emissions continue at the present rate. Enormous amount of

gases and chemicals emitted by the industrial plants and automobiles have

led to depletion of ozone layers which serve as a shield to protect life on

the earth from the ultra-violet rays of the sun.

The dumping of hazardous and toxic wastes, both solid and liquid, released

by the industrial plants is also the result of environment degradation in

our country.

The problem of "acid rain" which is caused mainly by the emissions of

sulphur dioxide and nitrogen oxides from power stations and industrial

installations is a graphic example of it. The ill-effects of acid rain can

be found on vegetation, soil, marine resources; monuments as well as on

humans. Air pollutants and acids generated by the industrial activities are

now entering forests at an unprecedented scale.

Sir Edmund Hillary (Tenzing and Edmund Hillary, who scaled Mount Everest

for the first time in world history) in his article "Learning About the

Problems" published in Ecology 2000 - The changing face of Earth, has

mentioned as under:

"Thirty years ago conservation had not really been heard of. On our

1953 Everest expedition we just threw our empty tins and any trash

into a heap on the rubble-covered ice at Base Camp. We cut huge

quantities of the beautiful juniper shrub for our fires; and on the

South Col at 26,000 feet we left a scattered pile of empty oxygen

bottles, torn tents and the remnants of food containers.

The expeditions of today are not much better in this respect, with

only a few expectations. Mount Everest is littered with junk from

the bottom to the top"

He also mentioned that, "one thing that has deeply conerned me has been the

severe destruction that is taking place in the natural environment".

The 1972 Stockholm Conference on `Human Environment' secured its place in

the history of our times with the adoption of the first global action plan

for the environment. Yet, as increasingly grim statistics indicate, over

the past decades our global environment and the living conditions for most

of the inhabitants of the planet continue to deteriorate. This process has

meant significant setback for both rich and poor.

The Declaration of the 1972 Stockholm Conference referred; obliquely to

man's environment, adding that `both aspects of man's environment; the

natural and the man-made, are essential for his well-being and enjoyment of

basic human rights'.

In Essar Oil Ltd. v. Halar Utkarsh Samiti and Ors., [2004] 2 SCC 392, this

Court aptly observed Stockholm Declaration as "Magna Carta of our

environment". First time at the international level importance of

environment has been articulated.

In the Stockholm Declaration principle number two provides that the natural

resources of the earth including air, water, land, flora and fauna should

be protected. The fourth principle of Stockholm Declaration reminds us

about out responsibility to safeguard and wisely manage the heritage of

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wildlife and its habitat.

The Court in said judgment also observed that "this, therefore, is the aim,

namely, to balance economic and social needs on the one hand with

environmental considerations on the other. But in a sense all development

is an environmental threat. Indeed, the very existence of humanity and the

rapid increase in the population together with consequential demands to

sustain the population has resulted in the concreting of open lands,

cutting down of forests, the filling up of lakes and pollution of water

resources and the very air which we breathe. However, there need not

necessarily be a deadlock between development on the one hand and the

environment on the other. The objective of all laws on environment should

be to create harmony between the two since neither one can be sacrificed at

the altar of the other."

In the said judgment, the passage has been quoted from Indian Council for

Enviro-Legal Action v. Union of India, [1996] 5 SCC 281. We deem it

appropriate to reproduce the same. Para 31 at page 296 in the said judgment

reads as under:

"While economic development should not be allowed to take place at

the cost of ecology or by causing widespread environment

destruction and violation; at the same time the necessity to

preserve ecology and environment should not hamper economic and

other developments. Both development and environment must go hand

in hand, in other words, there should not be development at the

cost of environment and vice versa, but there should be development

while taking due care and ensuring the protection of environment."

The Stockholm Conference recognized the links between environment and

development. But little was done to integrate this concept for

international action until 1987 when the Brundtland Report, `Our Common

Future' was presented to the United Nations General Assembly. The

Brundtland Report stimulated debate on development policies and practices

in developing and industrialized countries alike and called for an

integration of our understanding of the environment and development into

practical measures of action.

Armed with three years of testimony from people at hearings on five

continents, the Commission came to one central conclusion:

i) The present development trends leave, increasing numbers of people

poor and vulnerable, while at the same time degrading the environment;

ii) Poverty is a major cause and effect of global environmental

problems and, therefore, it is futile to attempt to deal with environmental

problems without a broader perspective that encompasses the factors

underlying world poverty and international inequality; and;

iii) A new development was required, one that sustained human progress

for the entire planet into the distant future and that sustainable

development becomes a goal not just for the developing nations but for the

industrialized ones as well.

The Earth Summit held in Rio de Janeiro in 1992 altered the discourses of

environmentalism in significant ways. Sustainability, introduced in the

1987 Brundtland Report Our Common Future - and enacted Rio agreements,

became a new and accepted code word for development.

The United Nations Conference on Environment and Development, held in Rio

de Janeiro in 1992, provided the fundamental principles and the programme

of action for achieving sustainable development.

Peace, security, stability and respect for human rights and fundamental

freedoms, including the right to development, as well as respect for

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cultural diversity, are essential for achieving sustainable development and

ensuring that sustainable development benefits all.

The 1992 Rio Declaration on `Environment and Development' recognizes the

element of integration of environmental and developmental aspects,

particularly in principles 3 & 4, which are set as under:

"Principle 3

The right to development must be fulfilled so as to equitably meet

developmental and environmental needs of present and future generations.

Principle 4

In order to achieve sustainable development, environmental protection shall

constitute an integral part of the development process and cannot be

considered in isolation from it."

The 1992 Rio Declaration on Environment and Development refers at many

points to environmental needs, environmental protection, environmental

degradation and so, but nowhere identifies what these include.

Interestingly it eschews the term `entirely' in Principle l, declaring

instead that human beings `are entitled to a healthy and productive life in

harmony with nature'. One of the few bodies to proffer a definition is the

European Commission. In developing an `Action Programme on the

Environment', it defined "environment as the combination of elements whose

complex inter-relationships make up the settings, the surroundings and the

conditions of life of the individual and of society as they are and as they

are felt."

Some understanding of what `the environment' may encompass can be discerned

from other treaty provisions. Those agreements which define `environmental

effects' `environmental impacts' or `environmental damage' typically

include harm to flora, fauna, soil, water, air landscape, cultural

heritage, and any interaction between these factors.

"The World Summit on Sustainable Development' was held in Johannesburg in

2002. The purpose of the same was to evaluate the

obstacles to progress and the results achieved since the 1992 World Summit

at Rio de Janeiro. The same was expected to present "an opportunity to

build on the knowledge gained, over the past decade, and provides a new

impetus for commitments of resources and specific action towards global

sustainability."

The priority of developing nations is urgent industrialization and

development. We have reached at a point where it is necessary to strike a

golden balance between the development and ecology.

The development should be such as it can be sustained by ecology. All this

has given rise to the concept of sustainable development.

`The World Conservation Union' and `the World Wide . Fund for Nature'

prepared jointly by UNEP described that "sustainable development,

therefore, depends upon accepting a duty to seek harmony with other people

and with nature" according to `Caring for the Earth', A strategy for

Sustainable Living. The guiding rules are:

i) People must share with each other and care for the earth;

ii) Humanity must take no more from nature than man can replenish; and,

iii) People must adopt life styles and development paths that respect

and work within nature's limits.

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The International community expressed its commitment to treat environment

and development in an integrated manner and to cooperate "in the further

development of international law in the field of sustainable development.

This was part of the Rio Declaration on Environment and Development.

[Principle 27; Report of the UN Conference on Environment and Development]

P. Sands in his celebrated book `International Law in the field of

Sustainable Development" mentioned that the sustainable development

requires the States to ensure that they develop and use their natural

resources in ` a manner which is sustainable. According to him, sustainable

development has four objectives:

First, it refers to a commitment to preserve natural resources for the

benefit of present and future generations.

Second, sustainable development refers to appropriate standards for the

exploitation of natural resources based upon harvests or use (examples

include use which is "sustainable," "prudent," or "rational," or "wise" or

"appropriate") .

Third, yet other agreements require an "equitable" use of natural

resources, suggesting that the use by any State must take account of the

needs of other States and people.

And a fourth category of agreements require that environmental

considerations be integrated into economic and other development plans,

programmes, and projects, and that the development needs are taken into

account in applying environmental objectives.

Sustainable Development: Contribution of Judiciary and Others

This Court, in Vellore Citizens Welfare Forum v. Union of India, [1996] 5

SCC 647, acknowledged that the traditional concept that development and

ecology are opposed to each other, is no longer acceptable. Sustainable

development is the answer. Some of the salient principles of "Sustainable

Development" as culled out from Brundtland Report and other international

documents, are Inter-Generational Equity. This Court observed that "the

Precautionary Principle" and "the Polluter Pays Principle" are essential

features of "Sustainable Development."

Nation's progress largely depends on development, therefore, the

development cannot be stopped, but we need to control it rationally. No

government can cope with the problem of environmental repair by itself

alone; peoples' voluntary participation in environmental management is a

must for sustainable development. There is a need to create environmental

awareness which may be propagated through formal and informal education. We

must scientifically assess the ecological impact of various developmental

schemes. To meet the challenge of current environmental issues; the entire

globe should be considered the proper arena for environmental adjustment.

Unity of mankind is not just a dream of the enlightenment but a biophysical

fact.

In Subhas Kumar v. State of Bihar, AIR (1991) SC 420, this Court has given

directions that, under Article 21 of the Constitution, pollution free water

and air are the fundamental rights of the people.

In the case of A.P. Pollution Control Board II v. M.V. Nayudu, [2001] 2 SCC

62, this Court observed that the right to have access to drinking water is

fundamental to life and it is the duty of the State under Article 21 to

provide clean drinking water to its citizens.

The United Nations Water Conference in 1977 observed as under:

"All people, whatever their stage of development and their social

and economic conditions, have the right to have access to drinking

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water in quantum and of a quality equal to their basic needs."

Similarly, this Court in Narmada Bachao Andolan v. Union of India, [2000]

10 SCC 664, observed as under:

"Water is the basic need for the survival of human beings and is

part of the right to life and human rights as enshrined in Article

21 of the Constitution of India....."

In M.C. Mehta v. Union of India, [1991] 2 SCC 137, this Court gave number

of directions to reduce the pollution created by vehicles.

The need of the hour is inculcating the sense of urgency in implementing

the rules relating to environmental protection which are not strictly

followed. Its result would be disastrous for the health and welfare of the

people.

The concept of sustainable development whose importance was the resolution

of environmental problems is profound and undisputed.

Professor Ben Boer, Environmental Law, Faculty of Law, University of

Sydney, New South Wales, Australia, in his article "Implementing

Sustainability" observed as under:

"Strategies for sustainable development have been formulated in

many countries in the past several years. Their implementation

through legal and administrative mechanisms is underway on a

national and regional basis. The impetus for these strategies has

come from documents such as the Stockholm Declaration of 1972, the

World Conservation Strategy, the World Charter for Nature of 1982

and the report of the World Commission on Environment and

Development, our Common Future. The initiatives are part of a world

wide movement for the introduction of National Conservation

Strategies based on the World Conservation Strategy. Over 50

National Conservation Strategies have been introduced over the past

decade, all of which incorporate concepts of sustainable

development. The document Caring for the Earth is the chief

successor to the World Conservation Strategy.

In the same article, Professor Boer further observed in the said article as

follows:

"Sustainability' is defined in `Caring for the Earth' as "a

characteristic or state that can be maintained indefinitely" whilst

"development" is defined as "increasing the capacity to meet human

needs and improve the quality of human life. What this seems to

mean is "to increase the efficiency of resource use in order to

improve human living standards".

In, `Caring for the Earth' the term "sustainable development" is

derived from a rough combination of these two definitions:

Improving the quality of human life while living within the

carrying capacity of supporting ecosystems."

Adherence to Following Principles is imperative for Preserving Ecology

(1) The Precautionary Principle:

This Court in Vellore Citizens' Welfare Forum (supra) has recognized the

Precautionary Principle. Again, this principle has been reiterated in the

case of M.C. Mehta v. Union of India, [1997] 2 SCC 353. In the said case,

the Precautionary Principle has' been explained in the context of municipal

law as under:

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"(i) Environmental measures - by the State Government and the

statutory authorities - must anticipate; prevent and attack the

causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage,

lack of scientific certainty should not be used as a reason for

postponing measures to prevent environment degradation.

(iii) The `onus of proof' is on the actor or the

developer/industrialist to show that his action is environmentally

benign."

The Precautionary Principle was stated in Article 7 of the Bergen

Ministerial Declaration on Sustainable Development in the ECE Region, May

1990, as incorporated in the said article of Professor Ben Boer. It reads

as follows:

"Environmental measures must anticipate prevent, and attack the

causes of environmental degradation. Where there are threats of

serious or irreversible damage; lack of scientific certainty should

not be used as a reason for postponing measures to prevent

environmental degradation."

The Precautionary Principle can be culled out from the following

observations of the Australian Conservation Foundation. (This also has been

incorporated in the Professor Boer's said article. )

"The implementation of this duty is that developers must assume

from the fact of development activity that harm to the environment

may occur, and that they should take the necessary action to

prevent that harm; the onus of proof is thus placed on developers

to show that their actions are environmentally benign."

(2) Polluter Pays:

This Court had an occasion to deal with this main principle of sustainable

development in the case of Indian Council for Environ-Legal Action v. Union

of India, [1996] 3 SCC 212. Carolyn Shelbourn in his article "Historic

Pollution - Does the Polluter Pay?" (published in the Journal of Planning

and Environmental Law, Aug. 1974 issue), mentioned that the question of

liability of the respondents to defray the costs of remedial measures can

be looked into from another angle, which has come to be accepted

universally as a sound principle, viz., the "Polluter Pays" principle.

The Court in the said judgment observed as under:

"The Polluter Pays principle demands that the financial costs of

preventing or remedying damage caused by pollution should lie with

the undertakings which cause the pollution, or produce the goods

which cause the pollution. Under the principle it is not the role

of Government to meet the costs involved in either prevention of

such damage or in carrying out remedial action, because the effect

of this would be to shift the financial burden of the pollution

incident to the taxpayer. The `Polluter Pays' principle was

promoted by the Organisation for Economic Cooperation and

Development (OECD) during the 1970s when there was great public

interest in environmental issues. During this, time there were

demands on Government and other institutions to introduce policies

and mechanisms for the protection of the environment and the public

from the threats posed by pollution in a modern industrialised

society. Since then there has been considerable discussion of the

nature of the Polluter Pays principle, but the precise scope of the

principle and its implications for those involved in past, or

potentially polluting activities have never been satisfactorily

agreed."

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This principle has also been held to be a sound principle in the case of

Vellore Citizens `Welfare Forum (supra). The Court observed that the

Precautionary Principle and the Polluter Pays Principle have been accepted

as part of the law of the land. The Court in the said judgment, on the

basis of the provisions of Articles 47, 48-A `and 51-A(g) of the

Constitution, observed that we have no hesitation in holding that the

Precautionary Principle and the Polluter Pays Principle are part of the

environmental laws of the country.

(3) The Public Trust Doctrine:

The concept of public trusteeship may be accepted as a basic principle for

the protection of natural resources of the land and sea. The Public Trust

Doctrine (which, found its way in the ancient Roman Empire) primarily rests

on the principle that certain resources like air, sea, water and the

forests have such a great importance to the people as a whole that it would

be wholly unjustified to make them a subject of private ownership. The said

resources being a gift of nature should be made freely available to

everyone irrespective of their status in life. The doctrine enjoins upon

the Government and its instrumentalities to protect the resources for the

enjoyment of the general public.

This Court in the case of A.P. Pollution Control Board II (supra) mentioned

that there is a need to take into account the right to a healthy

environment along with the right to sustainable development and balance

them.

In the case of M.C. Mehta v. Kamal Nath, [1997] 1 SCC 388, this Court dealt

with the Public Trust Doctrine in great detail: The Court observed: as

under:

"35. We are fully aware, that the issues presented in this case

illustrate the classic struggle between those members of the public

who would preserve our rivers, forests, parks and open lands in

their pristine purity and those charged with administrative

responsibilities, who, under the pressures of the changing needs of

an increasingly complex society, find it necessary to encroach to

some extent upon open lands heretofore considered inviolate to

change. The resolution of this conflict in any given case is for

the legislature and not the court. If there is a law made by

Parliament or the State Legislatures the courts can serve as an

instrument of determining legislative intent in the exercise of its

powers of judicial review under the Constitution. But in the

absence of any legislation, the executive acting under the doctrine

of public trust cannot abdicate the natural resources and convert

them into private ownership, or for commercial use. The aesthetic

use and the pristine glory of the natural resources, the

environment and the ecosystems of our country cannot be permitted

to be eroded for private, commercial or any other use unless the

courts find it necessary, in good faith, for the public good and in

public interest to encroach upon the said resources:" .

Joseph L. Sax, Professor of Law, University of Michigan - proponent of the

modern Public Trust Doctrine - in an erudite article "Public Trust Doctrine

in Natural Resource Law : Effective Judicial Intervention" Michigan Law

Review; Vol. 68, Part 1 p. 473, has given the historical background of the

Public Trust Doctrine as under:

"The source of modern public trust law is found in a concept that

received much attention in Roman and English law - the nature of

property rights in rivers, the sea, and the seashore. That history

has been given considerable attention in the legal literature, need

not be repeated in detail here. But two points should be

emphasized. First, certain interests, such as navigation and

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fishing, were sought to be presented for the benefit of the public;

accordingly; property used for those purposes was distinguished

from general public property which the sovereign could routinely

grant to private owners. Second, while it was understood that in

certain common properties - such as the seashore, highways and

running water - `perpetual use was dedicated to the public', it has

never been clear whether the public had an enforceable right to

prevent infringement of those interests. Although the State

apparently did protect public uses, no evidence is available that

pubic, rights could be legally asserted against a recalcitrant

government."

The Public Trust Doctrine primarily rests on the principle that certain

resources like air, sea, waters and the forests have such a great

importance to the people as a whole that it would be wholly unjustified to

make them a subject of private ownership. The, said resources being a gift

of nature, they should be made freely available to everyone irrespective of

the status in life. The doctrine enjoins upon the Government to protect the

resources for the enjoyment of the general public rather than to permit

their use for private ownership or commercial purposes. According to

Professor Sax the Public Trust Doctrine imposes the following restrictions

on governmental authority:

"Three types of restrictions on governmental authority are often

thought to be imposed by the public trust: first; the property

subject to the trust must not only be used for a public purpose,

but it must be held available for use by the general public;

second, the property may not be sold, even for a fair cash

equivalent; and third the property must be maintained for

particular types of uses."

The Supreme Court of California in National Audubon Society v. Superior

Court of Alpine County, (33 Cal. 3d 419) observed as under:

"Thus, the public trust is more than an affirmation of State power

to use public property for public purposes. It is an affirmation of

the duty of the State to protect the people's common heritage of

streams, lakes, marshlands and tidelands, surrendering that right

of protection only in rare cases when the abandonment of that right

is consistent with the purposes of the trust....."

In a recent case of Intellectuals Forum v. State of A. P., [2006] 3 SCC

549, this Court has reiterated the importance of the Doctrine of Public

Trust in maintaining sustainable development.

The right to sustainable development has been declared by the UN General

Assembly to be an inalienable human right (Declaration on the right to

Development) (1986).

Similarly, in 1992 Rio Conference it was declared that human beings are at

the centre of concerns for sustainable development. Human beings are

entitled to a healthy and productive life in harmony with nature. In order

to achieve sustainable development, environmental protection shall

constitute an integral part of development process and the same cannot be

considered in isolation of it.

The same principle was articulated in the 1997 "Earth Summit".

The European Court of Justice, emphasised in Portugal v. F.C. Council the

need to promote sustainable development while taking into account the

environment. (report in 3 C.M.L.R. 331) (1997) (ibid Columbia Journal of

Environmental Law, p.283)

In the case of M.C. Mehta v. Union of India, [1997] 2 SCC 353, this Court

gave a number of directions to 292 industries located nearby Taj Mahal.

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This Court, in this case, observed that the old concept that development

and ecology cannot go together is no longer acceptable. Sustainable

development is the answer. The development of industry is essential for the

economy of the country, but at the same time the environment and ecosystem

have to be protected. The pollution created as a consequence of environment

must be commensurate with the carrying capacity of our ecosystem. In any

case, in view of the precautionary principle, the environmental measures

must anticipate, prevent and attack the causes of environmental

degradation.

The directions which have been given in the impugned judgment are perhaps

on the lines of directions given by this Court in M.C. Mehta v. Union of

India, [1997] 3 SCC 715. This Court observed that the preventive measures

have to be taken keeping in view the carrying capacity of the ecosystem

operating in the environmental surroundings under consideration. Badkhal

and Surajkund lakes are popular tourist resorts almost next door to the

capital city of Delhi. Two expert opinions on the record - by the Central

Pollution Control Board and by the NEERI make it clear that the large-scale

construction activity in the close vicinity of the two lakes is bound to

cause adverse impact on the local ecology. NEERI has recommended green belt

at one k.m. radius all around the two lakes.

The directions given in the said judgment based on NEERI's recommendations

were capable of proper implementation.

If the directions given in the impugned judgment are properly implemented

then perhaps, the appellant cannot acquire any land for development, This

may not have been the underlying idea behind the judgment but it seems to

be the obvious consequence of a direction given by the Division Bench in

this case. In this view of the matter, the said directions given in the

impugned judgment are set aside.

We see significant developments when we carefully evaluate the entire

journey of judicial pilgrimage from the decade of 1960 till this date. In

the decade of 1960s, hardly anyone expressed concern about ecology and

environment. The statement of Sir Edmund Hillary quoted in the earlier part

of the judgment indicates that Mount Everest was littered with junk from

the bottom to the top, and nobody hardly spoke about it or was any serious

concern shown about environmental degradation. In the decade of I970s, a

serious concern about the degradation of ecology and environment was

articulated. The Stockholm Conference of 1972 was a major watershed in the

history of the world. It was realised that for a civilised world both

development and ecology are essential.

In the Rio Conference of 1992 great concern has been shown about

sustainable development. "Sustainable development" means `a development

which can be sustained by nature with or without mitigation'. In other

words; it is to maintain delicate balance between industrialization and

ecology. While development of industry is essential for the growth of

economy, at the same time, the environment and the ecosystem are required

to be protected. The pollution created as a consequence of development must

not exceed the carrying capacity of ecosystem. The Courts in various

judgments have developed the basic and essential features of sustainable

development. In order to protect sustainable development, it is necessary

to implement and enforce some of its main components and ingredients such

as - Precautionary Principle, Polluter Pays and Public Trust Doctrine. We

can trace foundation of these ingredients in number of judgments delivered

by this Court and the High Courts after the Rio Conference, 1992.

The importance and awareness of environment and ecology is becoming so

vital and important that we, in our judgment, want the appellant to insist

on the conditions emanating from the principle of `Sustainable

Development'.

(1) We direct that, in future, before acquisition of lands for development,

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the consequence and adverse impact of development on environment must be

properly comprehended and the lands be acquired for development that they

do not gravely impair the ecology and environment.

(2) We also direct the appellant to incorporate the condition of allotment

to obtain clearance from the Karnataka State Pollution Control Board before

the land is allotted for development. The said directory condition of

allotment of lands be converted into a mandatory condition for all the

projects to be sanctioned in future.

This has been an interesting judicial pilgrimage for the last four decades.

In our opinion, this is a significant contribution of the judiciary in

making serious endeavour to preserve and protect ecology and environment in

consonance with the provisions of the Constitution.

Sustainable use of natural resources should essentially be based on

maintaining a balance between development and ecosystem. Coordinated

efforts of all concerned would be required to solve the problem of

ecological crisis and pollution. Unless we adopt an approach of sustainable

use, the problem of environmental degradation cannot be solved.

The concept of sustainable development was propounded by the `World

Commission on Environment and Development', which very aptly and

comprehensively defined it as `development that meets the needs of the

present without compromising the ability of future generations to meet

their own needs'. Survival of mankind depends on following the said

definition in letter and spirit.

Before we part with this case, we would like to place on record our deep

appreciation for the able assistance rendered by Mr. A. R. Madhav Rao, the

learned amicus curiae.

The appeal is allowed and disposed of in terms of the aforementioned

directions. In the facts and circumstances of the case, we direct the

parties to bear their own costs.