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CASE NO.:

Writ Petition (civil) 202 of 1995

PETITIONER:

K.M. CHINNAPPA, T.N. Godavarman Thirumalpad

RESPONDENT:

Union of India and Ors.

DATE OF JUDGMENT: 30/10/2002

BENCH:

CJI, Y.K. SABHARWAL & ARIJIT PASAYAT.

JUDGMENT:

JUDGMENT

ARIJIT PASAYAT, J.

By destroying nature, environment, man is committing matricide,

having in a way killed Mother Earth. Technological excellence, growth of

industries, economical gains have led to depletion of natural resources

irreversibly. Indifference to the grave consequences, lack of concern and

foresight have contributed in large measures to the alarming position. In the

case at hand, the alleged victim is the flora and fauna in and around

Kudremukh National Park, a part of the Western Ghats. The forests in the

area are among 18 internationally recognized "Hotspots" for bio-diversity

conservation in the world. The I.A. 670 of 2001 was filed by Sri K.M.

Chinnappa describing himself as trustee, Wildlife First.

The said I.A. 670 of 2001 is an offshoot of I.A.548 filed by learned

Amicus Curiae questioning the correctness of orders issued by the States of

Karnataka and Uttar Pradesh respectively which according to him were in

violation of the provisions contained in the Wildlife (Protection) Act, 1972

(in short the 'Act'). By order dated 14.2.2000, operation of any order

permitting removal of certain trees from National Parks, Game Sanctuaries

and Forests was injuncted. Subsequently, the word 'forests' was deleted.

In the present I.A. learned Amicus Curiae has pointed out that

notwithstanding orders passed by this Court on 12.12.1996 and 14.2.2000

mining activities were being conducted by Kudremukh Iron Ore Co. Ltd.

(hereinafter referred to as a 'company') which were in clear violation of

orders passed by this Court. The main reliefs sought are:

"(a) to direct the MoEF to withdraw the illegal "temporary

working permission" issued by it and stop mining activities;

(b) direct KIOCL to stop polluting the Bhadra river due to open

cast mining;

(c) take action against KIOCL for illegal encroachment in the

forests and for destruction of forests in the Kudremukh National

Park; and

(d) to stop KIOCL from laying new slurry pipe line in the

forests of the National Park."

On 10.5.2001, this Court passed an order to the following effect:

"Issue notice returnable in the second week of July,

2001.Mr. A.D.N. Rao, Advocate accepts notice on behalf

of the Union of India. Service be effected on respondent

No. 2 through Mr. S.R. Hedge, A

dvocate and on respondent No. 3 by ordinary process and

by registered post.

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Union of India will file an affidavit within eight weeks

and in the affidavit they will also state the reason as to

why the Government of India having once notified the

area as a National Park then permit mining activity to be

carried out notwithstanding this Court's order of 12th

December, 1996."

It was noted that Kudremukh National Park in which mining activities

were being carried out was declared to be a National Park in terms of

Section 35(1) of the Act. The matter was referred to the Central Empowered

Committee (in short the 'Committee') constituted under Section 3 of the

Environment (Protection) Act, 1986 (in short the 'Environment Act'). After

hearing the parties and taking note of the materials placed before it the

Committee has recommended as follows:

"After carefully considering all the views and

suggestions, the exceedingly rich biodiversity of the area

and investment made by the KIOCL, suggestion made by

the learned Amicus Curiae, the Committee is of the view

that the KIOCL be asked to wind up its operations within

a period of five years or on the exhaustion of the oxidized

weathered secondary ore, whichever is earlier, in the

already broken up area. It is clarified that the period of 5

years would commence from 25-7-1999, when its lease

had expired.

The winding up period of five years shall be

subject to the following conditions:

(i) the MoEF should prepare or get a

rehabilitation and reclamation and a proper

eco-restoration plan prepared for the mined

area and project impact area through

appropriate agency at the cost of KIOCL;

(ii) KIOCL shall undertake to make available

funds necessary for implementing for the

aforesaid plans. The plans would be

implemented by the agencies selected by the

MoEF and under the supervision of the

MoEF;

(iii) a monetary compensation of Rs.25 crores @

Rs.5/- crores per year will have to be

deposited by KIOCL with MoEF in a

separate bank account which would be

utilized for the purposes of research,

monitoring and strengthening protection of

the Kudremukh National Park and for other

protected areas in the State of Karnataka;

(iv) a Monitoring Committee shall be constituted

by the MoEF comprising representative of

MoEF, representative of the State of

Karnataka, two NGO experts preferably

from Karnataka, which shall monitor the

implementation of the rehabilitation plans;

and

(v) after the winding up operations are

complete, the KIOCL will transfer all the

buildings and other infrastructure to the

Forest Department of the State of Karnataka

at book value.

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Transparent guidelines for dealing with development

projects in protected areas as recommended by Learned

Amicus Curiae and agreed to by the MoEF in its affidavit

filed by Shri S.C. Sharma, Additional Director General of

Forests shall be notified within 30 days with the

concurrence of the Central Empowered Committee."

One of the members of the Committee Shri Valmik Thaper gave a

dissenting note. According to him all mining operations must stop

immediately and the five years' period starting on 25th July, 1999 (on which

the original lease period expired) must be treated as a "Restoration and

Winding up period" so that the company can restore all mined lands, plant

indigenous species and protect the region and give back to one of the

world's finest forests what has been taken from it. All costs will be met by

the project proponent. When the matter was taken up, Shri Thaper was

requested to submit further materials, if any, to justify his dissenting note. A

photographic Report has been submitted. The Company has filed its

response in relation to the Committee's recommendation and connected

reports.

While contending that there was no violation of any law relating to

forests and environment certain legal issues were raised by the Company

which need to be dealt with first. With reference to Rule 24 (B) of the

Mineral Concession Rules, 1960 (in short the 'Concession Rules') framed

under the Mines and Minerals (Regulation and Development) Act, 1957 (in

short the 'Mines Act'), it was submitted that notwithstanding anything

provided under the Act, Conservation Act or the Environment Act, on an

application being made the lease was to be renewed for twenty years and

therefore, the recommendations made at a point of time for such period were

in order. Further, the draft Notification under Section 35(1) of the Act was

issued on 2.9.1987 and the final Notification was published on 16th June,

2001 under Section 35(4) of the Act, whereby the land under mining was

specifically excluded. In any event, 900 hectares of land was outside the

land covered by the Notification. The Notification dated 29.5.1982 issued

under Section 349 of the Karnataka Municipalities Act, 1964 (in short

'Municipalities Act') was also relevant. All these, according to Shri

Venugopal, took the land in question outside the purview of the operations

of the Act, Conservation Act and the Environment Act.

With reference to the order dated 14.11.2000 passed in W.P.337/2000,

it was submitted that the same was relatable to a stage under Section 35(5)

of the Act. Since there was an existing legal right to get a renewal, which

had already accrued, there was no question of any embargo on the renewal

of the mining lease. In this background, it was submitted that the State and

the Central Governments at earlier points of time had acceded to the request

of the company for renewing the lease for twenty years. Reference in this

context was made to a letter dated 6.7.1999 issued by the State Government.

It was pointed out that the company had subsisting contracts with foreign

buyers, and if the lease is not renewed or the mining activities are required to

be abandoned, there shall be large financial implications on account of

impossibility to perform the contracts. It was submitted that for the purpose

of renewal, no consent is necessary as an existing right is only to be

extended further. In any event, the period as suggested by the Committee

should be reckoned prospectively and not retrospectively and the two years'

period already covered by temporary working permit should be reckoned

while computing the period. It was pointed out that subsisting contracts with

some foreign countries are operative till 2005 and 2006 and at least adequate

time could be given to fulfill these contracts. Learned counsel for the State

of Karnataka has submitted that originally it had accepted the proposal for

the longer period, but taking into account the various circumstances, its final

stand is that five years period from 24.10.2001 would be adequate, equitable

and fair.

The company has taken a stand that it is earning valuable foreign

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exchange and discontinuous of its business activities would stop earning of

valuable foreign exchange in addition to rendering large number of

employees jobless. It is pointed out that some subsisting contracts are there

and in fact there is possibility of extracting 342 million tons of primary ores,

in addition to 119 million tons of secondary weathered ores. In fact, the

company's request is for permitting activities in some additional areas so

that the primary ores can be extracted and exported in addition to the

secondary weathered ores.

The main thrust of the Company's plea relating to environmental

issues which was highlighted by Shri Venugopal during hearing of the

application was that the Company has taken all possible steps to preserve

and conserve nature in its pristine glory. It is eco-friendly as would be

evident from the various activities undertaken by it and vast sums of money

spent for preservation of nature and environment in addition to efforts to

prevent pollution. It has received several awards for its admirable

achievements in the field of environmental protection. It was submitted that

sustainable development is permissible and is universally accepted

phenomenon. At the time the company was incorporated environment

impact assessment was conducted and detailed guidelines were formulated

to see that there was least degradation of the environment. The approach was

clearly environmental friendly. The approach in such matters is to see as to

what prevailed when the project was commenced. There has been a

substantial change in the approach and if the contemporaneous factual

backdrop is considered, it will be seen that the company's anxiety was to

protect nature and environment. Further, the various reports submitted by

expert bodies give a lie to the impressions created before the Committee

that there was continued destruction of nature of the flora and fauna by the

mining activities undertaken by the company. The reality is otherwise. With

reference to a Notification dated 29.5.1982 issued under Section 349 of the

Municipalities Act, it is submitted that the concerned area cannot be a

treated to be a forest land. A reference was also made to a decision in State

of Bihar v. Banshi Ram Modi and Ors. (1985(3) SCC 643) to contend that

the Act has no application.

Learned Amicus Curiae has pointed out that stands of the company

are per se not acceptable. The Committee has granted to the company much

more than what it deserves. With reference to the report of Shri Valmik, it is

pointed out that the situation is so grave that "hands off situation" has come

to play. It is pointed out that the role of the Karnataka State Government and

the Central Government in the Ministry of Environment and Forest is far

from satisfactory. Even without any Environment Impact Assessment report,

stand was taken for granting 20 years renewal period. There is no

consistency in the stand of the State and the Central Governments because

at one point of time they agreed to renewal period of 20 years and

subsequently turned around to five years period, and then again took

inconsistent stands. All these go to show that there is no proper application

of mind and without realizing the serious consequences involved,

recommendations are being made. In W.P.337/2000 by order dated

14.11.2000, it was, inter-alia, directed as follows:

"......Pending further orders, no de-reservation of

forests/sanctuaries/national parks shall be effected".

Action of the State Government in excluding land while issuing Notification

under Section 35(4) of the Act is in clear violation of this Courts' order.

Banshi Ram's case on which emphasis was laid by the company is not

good law in view of the subsequent decisions of this Court in Ambica

Quarry Works v. State of Gujarat and Ors. (1987 (1) SCC 213). Reference

may also made be made to the decisions in Tarun Bharat Sangh, Alwar v.

Union of India and Ors. (1992 Supp. (2) SCC 448), Tarun Bharat Sangh,

Alwar v. Union of India and Ors. ( 1993 Supp. (3) SCC 115) and two

reported orders in T.N. Godavarman Thirumulkpad v. Union of India and

Ors. (1997 (2) SCC 267) and T.N. Godavarman Thirumulkpad v. Union of

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India and Ors. (1997 (3) SCC 312). The stand of the company that

Notification dated 29.5.1982 excluded the land in question from being forest

land is clearly untenable in view of the Section 2(ii) of the Forest

(Conservation) Act, 1980 (in short the 'Conservation Act').

The seminal issue involved is whether the approach should be "dollar

friendly" or "eco friendly".

'Environment' is a difficult word to define. Its normal meaning relates

to the surroundings, but obviously that is a concept which is relatable to

whatever object it is which is surrounded. Einstein had once observed, "The

environment is everything that isn't me." About one and half century ago, in

1854, as the famous story goes the wise Indian Chief of Seattle replied to the

offer of the great White Chief in Washington to buy their land. The reply is

profound. It is beautiful. It is timeless. It contains the wisdom of the ages.

It is the first ever and the most understanding statement on environment.

The whole of it is worth quoting as any extract from it is to destroy its

beauty.

"How can you buy or sell the sky, the warmth of

the land? The idea is strange to us.

If we do not own the freshness of the air and the

sparkle of the water, how can you buy them?

Every part of the earth is sacred to my people.

Every shining pine needle, every sandy shore, every mist

in the dark woods, every clearing and humming insect is

holy in the memory and experience of my people. The

sap which courses through the trees carries the memories

of the red man.

'the white man's dead forget the country of their

birth when they go to walk among the stars. Our dead

never forget this beautiful earth, for it is the mother of the

red man. We are part of the earth and it is part of us.

The perfumed flowers are our sisters; the horse, the great

eagle, these are our brothers. The rocky crests, the juices

in the meadows, the body heat of the pony, and man all

belong to the same family.'

So, when the Great Chief in Washington sends

word and he wishes to buy our land, he asks much of us.

The Great Chief sends word he will reserve us a place so

that we can live comfortably to ourselves. He will be our

father and we will be his children. So we will consider

your offer to buy our land. But it will not be easy. For

this land is sacred to us.

This shining water moves is the streams and rivers

is not just water but the blood of our ancestors. If we sell

you land, you must remember that it is sacred, and you

must teach your children that it is sacred and that each

ghostly reflection in the clear water of the lakes tells of

events and memories in the life of my people. The

water's murmur is the voice of my father's father.

The rivers are our brothers, they quench our thirst.

The rivers carry our canoes, and feed our children. If we

sell you our land you must remember, and teach your

children, that the rivers are our brothers, and yours and

you must henceforth give the kindness you would give

any brother.

We know that the white man does not understand

our ways. One portion of land is the same to him as the

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next, for he is a stranger who comes in the night and

takes from the land whatever he needs. The earth is not

his brother but his enemy and when he has conquered it,

he moves on. He leaves his father's graves behind, and

he does not care.

He kidnaps the earth from his children. His

father's grave and his children's birthright are forgotten.

He treats his mother, the earth, and his brother, the sky,

as things to be bought, plundered, sold like sheep or

bright beads. His appetite will devour the earth and leave

behind only a desert.

I do not know. Our ways are different from your

ways. The sight of your cities pains the eyes of the red

man. But perhaps it is because the red man is a savage

and does not understand.

There is no quiet place in the white man's cities.

No place to hear the unfurling of leaves in spring or the

rustle of in insect's wings. But perhaps it is because I am

a savage and do not understand. The clatter only seems

to insult the ears. And what is there in life if a man

cannot hear the lonely cry of the whippoorwill or the

arguments of the frogs around a pond at night? I am a red

man and do not understand. The Indian prefers the soft

sound of the wind darting over the face of a pond, and the

smell of the wind itself, cleansed by a mid-day rain, or

scented with the pinon pine.

The air is precious to the red man, for all things

share the same breath the beast, the tree, the man, they

all share the same breath. The white man does not seem

to notice the air he breathes. Like a man lying for many

days, he is numb to the stench. But if we sell you our

land, you must remember that the air is precious to us,

that the air shares its spirit with all the life it supports.

The wind that gave our grandfather his first breath also

receives the last sign. And if we sell you our land, you

must keep it apart and sacred as a place where even the

white man can go to taste the wind that is sweetened by

the meadow's flowers.

So we will consider your offer to buy our land. If

we decide to accept, I will make one condition. The

white man must treat the beasts of this land as his

brothers.

I am a savage and I do not understand any other

way. I have seen thousand rotting buffaloes on the

prairie, left by the white man who shot them from a

passing train. I am a savage and I do not understand how

the smoking iron horse can be more important than the

buffalo that we kill only to stay alive.

What is man without the beasts? If all the beasts

were gone, man would die from a great loneliness of

spirit. For whatever happens to the beasts soon happens

to man. All things are connected.

You must teach your children that the ground

beneath their feet is the ashes of our grandfathers, so that

they will respect the land. Tell your children that the

earth is rich with the lives of our kin. Teach your

children what we have taught our children, that the earth

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is our mother. Whatever befalls the earth befalls the sons

of the earth. If man spit upon the ground, they spit upon

themselves.

This we know : The earth does not belong to man,

man belongs to the earth. This we know: All things are

connected like the blood which unites one family. All

things are connected.

Whatever befalls the earth befalls the sons of the

earth. Man did not wave the web of life; he is merely a

strand in it. Whatever he does to the web he does to

himself.

Even the white man, whose God walks and talks

with him as friend to friend cannot be exempt from the

common destiny. We may be brothers after all. We shall

see. One thing we know, which the white man may one

day discover our God is the same God. You may think

now that you own him as you wish to own our land; but

you cannot. He is the God of man, and his compassion is

equal for the red man and the white. This earth is

precious to him, and to harm the earth is to heap

contempt on the creator. The white too shall pass

perhaps sooner than all other tribes. Contaminate your

bed and you will one night suffocate in your own waste.

But in your perishing you will shine brightly, fired

by the strength of the God who brought you this land and

for some special purpose gave you dominion over this

land and over the red man. That destiny is a mystery to

us, for we do not understand when the wild buffaloes are

slaughtered, the wild horses are tamed, the secret corners

of the forest heavy with scent of many men and the view

of the ripe hills blotted by talking wires. Where is the

thicket? Gone, where is the eagle? Gone. The end of

living and the beginning of survival."

It would be hard to find out such dawn to earth description of nature.

"Nature hates monopolies and knows no exception. It has always some

levelling agency that puts the overbearing, the strong, the rich, the fortunate

substantially on the same ground with all others" said Zarathustra.

Environment is polycentric and multi-facet problem affecting the human

existence. The Stockholm Declaration of United Nations on Human

Environment, 1972, reads its Principle No.3, inter-alia, thus:

"Man has the fundamental right to freedom,

equality, and adequate conditions of life. In an

environment of equality that permits a life of dignity and

well being and bears a solemn responsibility to protect

and improve the environment for present and future

generations."

The Declaration, 'therefore, says that' in the developing countries,

most of the environmental problems are caused by underdevelopments. The

Declaration suggests to safe actions with prudent care for ecological balance.

It is necessary to avoid massive and irreversible harm to the earthly

environment and strife for achieving present generation and the posterity a

better life in an environment more in keeping with the needs and hopes. In

this context immediately comes to mind the words of Pythogarus who said:

"For so long as man continues to be the ruthless

destroyer of lower living beings, he will never know

health or peace. For so long as men massacre animals,

they will kill each other. Indeed, they who sow the seeds

of murder and pain cannot reap joy and love."

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Article 48-A in Part IV (Directive Principles) of the Constitution of

India, 1950 brought by the Constitution (42nd Amendment) Act, 1976,

enjoins that "State shall endeavour to protect and improve the environment

and to safeguard the forests and wild life of the country." Article 47 further

imposes the duty on the State to improve public health as its primary duty.

Article 51-A(g) imposes "a fundamental duty" on every citizen of India to

protect and improve the natural "environment" including forests, lakes,

rivers and wild life and to have compassion for living creatures. The word

"environment" is of broad spectrum which brings within its ambit "hygienic

atmosphere and ecological balance." It is, therefore, not only the duty of the

State but also the duty of every citizen to maintain hygienic environment.

The State, in particular has duty in that behalf and to shed its extravagant

unbridled sovereign power and to forge in its policy to maintain ecological

balance and hygienic environment. Article 21 protects right to life as a

fundamental right. Enjoyment of life and its attainment including their right

to life with human dignity encompasses within its ambit, the protection and

preservation of environment, ecological balance free from pollution of air

and water, sanitation without which life cannot be enjoyed. Any contra acts

or actions would cause environmental pollution. Therefore, hygienic

environment is an integral facet of right to healthy life and it would be

impossible to live with human dignity without a humane and healthy

environment. Environmental protection, therefore, has now become a matter

of grave concern for human existence. Promoting environmental protection

implies maintenance of the environment as a whole comprising the man-

made and the natural environment. Therefore, there is constitutional

imperative on the Central Government, State Governments and bodies like

Municipalities, not only to ensure and safeguard proper environment but also

an imperative duty to take adequate measure to promote, protect and

improve the environment man-made and natural environment.

Industrialisation, urbanisation, explosion of population, over-

exploitation of resources, depletion of traditional sources of energy and raw

materials, and the search for new sources of energy and raw materials, the

disruption of natural ecological balances, the destruction of multitude of

animal and plant species for economic reasons and sometimes for no good

reason at all are factors which have contributed to environmental

deterioration. While the scientific and technological progress of man has

invested him with immense power over nature, it has also resulted in the

unthinking use of the power, encroaching endlessly on nature. If man is able

to transform deserts into oasis, he is also leaving behind deserts in the place

of oasis. In the last century, a great German materialist philosopher warned

mankind : "Let us not, however, flatter ourselves over much on account of

our human victories over nature. For each such victory nature takes its

revenge on us. Each victory, it is true, in the first place brings about the

results we expected, but in the second and third places it has quite different,

unforeseen effects which only too often cancel the first. Ecologists are of

the opinion that the most important ecological and social problem is the

wide spread disappearance all over the world of certain species of living

organisms. Ecologists forecast the extinction of animal and plant species on

a scale that is incompatibly greater than their extinction over the course of

millions of years. It is said that over half the species which became extinct

over the last 2000 years did so after 1900. The International Association for

the Protection of Nature and Natural Resources calculates that now, on

average, one species or sub-species is lost every year. It is said that

approximately 1000 birds and animal species are facing extinction at

present. It is for this that the environmental questions have become urgent

and they have to be properly understood and squarely met by man. Nature

and history are two components of the environment in which we live, move

and prove ourselves. This Court in Sachindanand Pandey and Anr. v. State

of West Bengal and Ors. (AIR 1987 SC 1109) and Virender Gaur v. State of

Haryana, (1995 AIR SCW 306) has highlighted these aspects.

Environmental law is an instrument to protect and improve the

environment and to control or prevent any act or omission polluting or likely

to pollute the environment. In view of the enormous challenges thrown by

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the industrial revolution, the legislatures throughout the world are busy in

this exercise. Many have enacted laws long back and they are busy in

remodeling the environmental law. The others have moved their law making

machineries in this direction except the under-developed States who have

yet to come in this wave length. India was one of those few countries which

paid attention right from the ancient time down to the present age and till

date, the tailoring of the existing law to suit the changing conditions is going

on. The problem of law-making and amending is a difficult task in this area.

There are a variety of colours of this problem. For example, the industrial

revolution and the evolution of certain cultural and moral values of the

humanity and the rural and urban area developments in agricultural

technology, waste, barren or industrial belts; developed, developing and

under-developed parts of the lands; the rich and poor Indians; the population

explosion and the industrial implosion; the people's increasing awareness

and the decreasing State Exchequer; the promises in the political manifestos

and the State's development action. In this whole gamut of the problems the

Tiwari Committee came out with the date that we have in India "nearly five

hundred environmental laws" and the Committee pointed out that no

systematic study had been undertaken to evaluate those legislative

developments. Some legal controls and techniques have been adopted by the

legislatures in the field of Indian Environmental Laws. Different legislative

controls right from the ancient time, down to the modern period make

interesting reading. Attention has to be paid to identify the areas of great

concern to the legislature; the techniques adopted to solve those problems;

the pollutants which required continuous exercises; the role of legislature

and people's participation outside. These are some of many areas which

attract the attention in the study of history of the Indian Environmental Law.

Since time immemorial, natural objects like rivers enjoyed a high

position in the life of the society. They were considered as Goddesses

having not only the purifying capacity but also self-purifying ability.

Fouling of the water of a river was considered a sin and it attracted

punishments of different grades which included, penance, outcasting, fine,

etc. The earth or soil also equally had the same importance, and the ancient

literature provided the means to purify the polluted soil. The above are

some of the many illustrations to support the view that environmental

pollution was controlled rigidly in the ancient time. It was not an affair

limited to an individual or individuals but the society as a whole accepted its

duty to protect the environment. The 'dharma' of environment was to

sustain and ensure progress and welfare of all. The inner urge of the

individuals to follow the set norms of the society, motivated them to allow

the natural objects to remain in the natural state. Apart from this motivation,

there was the fear of punishment. There were efforts not just to punish the

culprit but to balance the eco-systems. The noteworthy development in this

period was that each individual knew his duty to protect the environment

and he tried to act accordingly. Those aspects have been highlighted by a

learned author C.M. Jariwala in his article "Changing Dimensions of the

Indian Environmental Law" in the book "Law and Environment" by P.

Leelakrishnan.

The Economic and Special Council of the United Nations passed a

resolution on 30th July, 1968 on the question of convening an International

Conference on problems of human environment. In the United Nations

Conference on Human Environment at Stockholm from 6th to 16th June,

1972, proclamation was made on United Nations on Human Environment. It

was stated in the proclamation in these profound words:

"Man is both creature and moulder of his

environment which gives his physical sustenance and

affords him the opportunity for intellectual, moral, social

and spiritual growth. In the long and tortuous evolution

of the human race on this planet a stage has been reached

when through the rapid acceleration of science and

technology, man has acquired the power to transform his

environment in countless ways and on an unprecedented

scale. Both aspects of men's environment, the natural

and the man made, are essential to his well being and to

the enjoyment of basic human rights even the right to life

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itself.

The protection and improvement of the human

environment is a major issue which affects the well being

of people and economic development throughout the

world, it is the urgent desire of the peoples of the whole

world and the duty of all Governments."

When the necessity to promote the environment turned grave, doubt

was expressed by some commentators whether the issue of the environment

would last. They have been proved wrong, since it is clearly one of the big

issues, perhaps the biggest issue of the 1990s. It is a big issue in political

terms, since protection of the environment is high on most people's priorities

for the 1990s. As a result political parties and Governments are falling over

each other in their eagerness to appear green, even if as yet their actions

rarely match their rhetoric. It is big in terms of the size of the problem faced

and the solutions required; global warning, the destruction of the ozone

layer, acid rain, deforestation, overpopulation and toxic waste are all global

issue which require an appropriately global response. It is big in terms of

the range of problems and issues air pollution, water pollution, noise

pollution, waste disposal radioactivity, pesticides, countryside protection,

conservation of wildlife the list is virtually endless. As observed by Simon

Bell and Stuart Bell in 'Environmental Law' :

"...........In the words of the White Paper on the

Environment. This Common Inheritance (cm. 1200,

1990) the issues range 'from the street corner to the

stratosphere.' Finally, it is big in terms of the knowledge

and skills required to understand a particular issue. Law

is only one element in what is a major cross-disciplinary

topic. Lawyers need some understanding of the

scientific, political and economic processes involved in

environmental degradation. Equally all those whose

activities and interests relate to the environment need to

acquire an understanding of the structure and content of

environmental law, since it has a large and increasing

role to play in environmental protection."

Apart from the direct cost to business of complying with stricter

regulatory controls, the potential liabilities for non-compliance are also

increasing. These liabilities fall into five general categories :

(a) Criminal liabilities;

The number of criminal offences for non-compliance with

environmental legislation is immense, and in recent years the regulation

agencies have shown an increased willingness to resort to prosecution.

Private prosecution is also a possibility. Fines will be the normal penalty,

though in a number of cases sentences of imprisonment have been imposed

(there is normally a potential personal liability for directors and senior

managers). Maximum fine levels have risen in recent years, as have actual

levels of fines imposed.

(b) Administrative sanctions :

In most regulatory systems there is a range of options available to the

regulator, including variation, suspension or revocation of a licence. Since

these steps may lead to the closure of a plant, they are obviously of great

importance.

(c) Clean up costs :

In most environmental legislation there is a power to clean up after a

pollution incident and receive the cost from the polluter or (in some cases)

the occupier.

(d) Civil liability :

There is growing interest in the toxic torts, although many of the

actions have in fact been around for a long time. Many environmental

actions rest upon strict liability. Although liability may often be difficult to

establish, the size of claims may be very high indeed.

(e) Adverse publicity :

In practice the publicity attracted as a result of infringements of the

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law may be as costly as any direct costs.

The tide of judicial considerations in environmental litigation in India

symbolizes the anxiety of Courts in finding out appropriate remedies for

environmental maladies. At global level, the right to live is now recognized

as a fundamental right to an environment adequate for health and well being

of human beings. (See World Commission on Environment and

Development - Our Common Future (1987). To commemorate the tenth

anniversary of the Stockholm Conference, the World Community of States

assembled in Nairobi (May 10-18, 1982) to review the action taken on to

implement Stockholm Declaration. It expressed serious concern about the

state of environment world wide and recognized the urgent need of

intensifying the effort at the global, regional and national levels to protect

and improve it.

Progress and pollution go together. As this Court observed in M.C.

Mehta and Anr. v. Union of India and Ors. (AIR 1987 SC 965), when

science and technology are increasingly employed in producing goods and

services calculated to improve the quality of life, there is certain element of

hazard or risk inherent in the very use of science and technology and it is not

possible to totally eliminate such hazard or risk altogether. We can only

hope to reduce the element of hazard or risk to the community by taking all

necessary steps for locating such industries in a manner which would pose

least risk of danger to the community and maximizing safety requirements.

As observed in the United Nations Conference held at Stockholm in June,

1972, economic and social development was essential for ensuring a

favourable living and working environment for man and for creating

condition on earth that were necessary for the improvement of the quality of

life.

The tragedy of the predicament of the civilized man is that 'Every

source from which man has 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 he cannot repair and

cannot foresee'. There is increase in awareness of the compelling need to

restore the serious ecological imbalances introduced by the depredations

inflicted on nature by man. The state to which the ecological imbalance and

the consequent environmental damage have reached is so alarming that

unless immediate, determined and effective steps were taken, the damage

might become irreversible. In his foreward to International Wild Life Law,

M.R.M. Prince Philip the Duke of Edinburgh said :

"Many people seem to think that the conservation of

nature is simply a matter of being kind to animals and

enjoying walks in the country-side. Sadly, perhaps, it is a

great deal more complicated than that................. As usual

with all legal systems, the crucial requirement is for the

terms of the conversions to be widely accepted and

rapidly implemented......Regretfully progress in this

direction is proving disastorously slow." (See

International Wildlife Law by Simon Lyster, Cambridge,

Grotius Publications Ltd. 1985 Edn.)

The United National General Assembly adopted on October 29, 1982,

'the World Charter for Nature'. The Chapter declares the Awareness that :

"(a) Mankind is a part of nature and life depends on the

uninterrupted functioning of natural systems which

ensure the supply of energy and nutrients.

(b) Civilization is rooted in nature, which has shaped

human culture and influenced all artistic and scientific

achievement, and living in harmony with nature gives

man the best opportunities for the development of his

creativity, and for rest and recreation."

Towards the end of his reign, King Asoka in the third century B.C.

issued a decree that it has a particularly contemporary ring in the matter of

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preservation of wild life and environment. He had written :

"Twenty-six years after my coronation, I declare that the

following animals were not to be killed, parrots, mynas,

the aruna, ruddy geese, wild geese, the nandimukha,

cranes, bats, queen, ants, terrapins, boneless fish,

rhinoceroses..... and all quadrupeds which are not useful

or edible.....Forest must not be burned."

To protect and improve the environment is a constitutional mandate.

It is a commitment for a country wedded to the ideas of a welfare State. The

world is under an impenetrable cloud. In view of enormous challenges

thrown by the Industrial revolution, the legislatures throughout the world are

busy in their exercise to find out means to protect the world. Every

individual in the society has a duty to protect the nature. People worship the

objects of nature. The trees, water, land and animals had gained important

positions in the ancient times. As Manu VIII, page 282 says different

punishments were prescribed for causing injuries to plants. Kautilya went a

step further and fixed the punishment on the basis of importance of the part

of the tree. (See Kautilya III, XIX, 197)

As observed by this Court in Rural Litigation and Entitlement Kendra

v. State of Uttar Pradesh (AIR 1987 SC 359), natural resources have got to

be tapped for the purpose of social development but one cannot forget at the

same time that tapping of resources has to be done with requisite attention

and care so that ecology and environment may not be affected in any serious

way; there may not be any depletion of water resources and long-term

planning must be undertaken to keep up the national wealth. It has always to

be remembered that these are permanent assets of mankind and are not

intended to be exhausted in one generation.

The Academy Law Review at pages 137-138 says that a recent

survey reveals that every day millions of gallons of trade wastes and

effluents are discharged into the rivers, steams, lake and sea etc.

Indiscriminate water pollution is a problem all over the world but is now

acute in densely populated industrial cities. Our country is no exception to

this. Air pollution has further added to the intensity and extent of the

problem. Every year millions of tons of gaseous and particulate pollutants

are injected into the atmosphere, both through natural processes and as a

direct result of human activity. Scientists have pointed out that earth's

atmosphere cannot absorb such unlimited amount of pollutant materials

without undergoing changes which may be of an adverse nature with respect

to human welfare. Man in order to survive in his planetary home will have

to strike the harmonious balance with nature. There may be boundless

progress scientifically which may ultimate lead to destruction of man's

valued position in life. The Constitution has laid the foundation of Articles

48-A and 51-A for a jurisprudence of environmental protection. Today, the

State and the citizen are under a fundamental obligation to protect and

improve the environment, including forests, lakes, rivers, wildlife and to

have compassion for living creatures.

A learned Jurist has said, the Rig Veda praises the beauty of the dawn

(usha) and worships Nature in all its glory. And yet today a bath in the

Yamuna and Ganga is a sin against bodily health, not a salvation for the soul

so polluted and noxious are these 'Holy' waters now. "One hospital bed

out of four in the world is occupied by a patient who is ill because of

polluted water.....Provision of a safe and convenient water supply is the most

important activity that could be undertaken to improve the health of people

living in rural areas of the developing world." (W.H.O.) "Nature never did

betray. That heart that loved her." (Wordsworth). The anxiety to save the

environment manifested in the Constitution (Forty-Second Amendment)

Act, 1976 by the introduction of a specific provision for the first time to

"protect and improve" the environment. Man is Nature's best promise and

worst enemy. If industry is necessity, pollution inevitable. Since progress

and pollution go together, there can be no end of progress, and consequently,

no escape from pollution. If industry is necessary evil, pollution surest

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sufferance. Several enactments have been made to combat pollution.

"Pollution" is noun derived from the transitive verb "pollute" which means

to make foul or unclean, dirty, to make impure or morally unclean. In

Halsbury's Laws of England (Forth Edition, Volume 38, para 66)

"pollution" means the direct or indirect discharge by man of substances or

energy into the aquatic environment resulting in hazard to human health,

harm to living resources and aquatic ecosystems, damage to amenities on

interference with other legitimate use of water.

In Divisional Forest Officer and Ors. v. S. Nageswaramma (1996 (6)

SCC 442) it was observed that the renewal of lease is not a vested right of

the lessee. There is a total prohibition against the grant of mining lease in a

forest area without concurrence of the Central Government. As was

observed by this Court in M.C. Mehta v. Kamal Nath and Ors. ( 1997 (1)

SCC 388), our legal system based on English Common Law includes the

public trust doctrine as part of its jurisprudence. The State is the trustee of all

natural resources which are by nature meant for public use and enjoyment.

Public at large is the beneficiary of the sea-shore, running waters, airs,

forests and ecologically fragile lands. The State as a trustee is under a legal

duty to protect the natural resources. These resources meant for public use

cannot be converted into private ownership.

The aesthetic use and the pristine glory cannot be permitted to

be eroded for private, commercial or any other use unless the courts find it

necessary, in good faith, for public good and in public interest to encroach

upon the said resources.

It cannot be disputed that no development is possible without some

adverse effect on the ecology and environment, and the projects of public

utility cannot be abandoned and it 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 bypassed. The comparative

hardships have to be balanced and the convenience and benefit to a larger

section of the people has to get primacy over comparatively lesser hardship.

In this background, the Environment Impact Assessment reports are of

great importance. The Council on European Economic Committee in their

directive to the member States highlighted objectives of such assessments as

follows:

"The effect of a project on the environment must

be assessed in order to take action of the concerns to

protect human health, to contribute by means of a better

environment to the quality of life, to ensure maintenance

of the diversity of species and to maintain the

reproductive capacity of the eco-system as a basic

resource of life."

A few decisions taken at the Convention on Biological Diversity dated

5th June, 1992 would be relevant.

The Preamble, inter-alia, contains the following:

"Concerned that biological diversity is being

significantly reduced by certain human activities. Aware

of the general lack of information and knowledge

regarding biological diversity and of the urgent need to

develop scientific, technical and institutional capacities to

provide the basic understanding upon which to plan and

implement appropriate measures. Noting that it is vital to

anticipate, prevent and attack the causes of significant

reduction or loss of biological diversity at source. Noting

further that the fundamental requirement for the

conservation of biological diversity is the in-situ

conservation of ecosystems and natural habitats and the

maintenance and recovery of viable populations of

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species in their natural surroundings."

Articles 1, 6, 7 and 14(a) are also important.

Article 1: Objectives-

The objectives of this Convention to be pursued in

accordance with its relevant provisions are the

conservation of biological diversity, the sustainable use

of its components and the fair and equitable sharing of

the benefits arising out of the utilization of genetic

resources including by appropriate access to genetic

resources and by appropriate transfer of relevant

technologies, taking into account all rights over those

resources and to technologies, and by appropriate

funding.

Article 6: General measures for conservation and

sustainable use-

Each contracting party shall, in accordance with its

particular conditions and capabilities:

(a) develop national strategies, plans or

programmes for the conservation and sustainable use of

biological diversity or adopt for this purpose existing

strategies, plans or programmes which shall reflect, inter

alia, the measures set out in this Convention relevant to

the contracting party concerned; and

(b) integrate, as far as possible and as

appropriate, the conservation and sustainable use of

biological diversity into relevant sectoral or cross-

sectoral plans, programmes and policies.

Article 7: Identification and Monitoring

Each contracting party shall, as far as possible and

as appropriate, in particular for the purposes of Articles 8

to 10:

(a) identify components of biological diversity

important for its conservation and sustainable use having

regard to the indicative list of categories set down in

Annexure 1;

(b) Monitor, through sampling and other

techniques, the components of biological diversity

identified pursuant to sub-paragraph (a) above, paying

particular attention to those requiring urgent conservation

measures and those which offer the greatest potential for

sustainable use;

(c) identify processes and categories of

activities which have or are likely to have significant

adverse impacts on the conservation and sustainable use

of biological diversity, and monitor their effects through

sampling and other techniques; and

(d) maintain and organize, by any mechanism

data, derived from identification and monitoring

activities pursuant to sub-paragraphs (a), (b) and (c)

above.

Article 14(a): Impact Assessment and Minimizing

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Adverse Impacts-

Each contracting party, as far as possible and as

appropriate, shall:

(a) introduce appropriate procedures requiring

environment impact assessment of its proposed projects

that are likely to have significant adverse effects on

biological diversity with a view to avoiding or

minimizing such effects and, where appropriate, allow

for public participation in such procedures."

Sustainable development is essentially a policy and strategy for

continued economic and social development without detriment to the

environment and natural resources on the quality of which continued activity

and further development depend. Therefore, while thinking of the

developmental measures the needs of the present and the ability of the future

to meet its own needs and requirements have to be kept in view. While

thinking of the present, the future should not be forgotten. We owe a duty to

future generations and for a bright today, bleak tomorrow cannot be

countenanced. We must learn from our experiences of past to make both the

present and the future brighter. We learn from our experiences, mistakes

from the past, so that they can be rectified for a better present and the future.

It cannot be lost sight of that while today is yesterday's tomorrow, it is

tomorrow's yesterday.

The greenery of India should not be allowed to be perished, to be

replaced by deserts. Euthopia which at a point of time was considered to be

one of the greenest countries, is virtually a vast desert today.

The Union Government framed National Forest Policy in 1988.

Though the basic objectives are very laudable, it is sad to note that it has

virtually been confined in papers containing it, and not much has been done

to translate them into reality. Nevertheless, it reflects anxiety of the Union

Government to protect and preserve natural forests with vast variety of flora

and fauna, representing biological diversity and genetic resources of the

country.

Duty is cast upon the Government under Article 21 of the Constitution

of India to protect the environment and the two salutary principles which

govern the law of environment are: (i) the principles of sustainable

development and (ii) the precautionary principle. It needs to be highlighted

that the Convention on Biological Diversity has been acceded to by our

country and, therefore, it has to implement the same. As was observed by

this Court in Vishaka and Ors. v. State of Rajasthan and Ors. ( 1997 (6) SCC

241), in the absence of any inconsistency between the domestic law and the

international conventions, the rule of judicial construction is that regard

must be had to international convention and norms even in construing the

domestic law. It is, therefore, necessary for the Government to keep in view

the international obligations while exercising discretionary powers under the

Conservation Act unless there are compelling reasons to depart therefrom.

The United Nations Conference on Human Environment held in

Stockholm during June 1972 brought into focus several alarming situations

and highlighted the immediate need to take steps to control menace of

pollution to the Mother Earth, air and of space failing which, the Conference

cautioned the mankind, it should be ready to face the disastrous

consequences. The suggestions noted in this Conference were reaffirmed in

successive Conference followed by Earth Summit held at Rio-de Janeiro

(Brazil) in 1992.

So far as the effect of Rule 24B of the Minerals Rules is concerned, it

is to be noted that Section 2(ii) of the Conservation Act rules out non-forest

activities. The Section begins with a non-obstante clause providing that

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notwithstanding anything contained in any other law for the time being in

force in a State, no State Government or other authority shall make, except

with the prior approval of the Central Government any order of the nature

enumerated in the provision. Section 3 of the Conservation Act deals with

constitution of Advisory Committee and Section 4 deals with power to make

rules. Rules 4, 5 and 6 of the Forest Conservation Rules, 1981 (in short

'Conservation Rules') are relevant. Rule 4 deals with procedure to make

proposal by a State Government or their authority. Rule 5 deals with the

powers of the Committee to advise on proposals received by the Central

Government. The Committee referred to therein is the one constituted under

Section 3 of the Act. Rule 6 deals with action of the Central Government on

the advise of the Committee. Admittedly, the Central Government has not

accorded the approval for use of any forest land or any portion thereof for

being used for any non forest purpose. That being so, Rule 29(b) of the

Mineral Rules cannot be of any assistance to the company. So far as the

order dated 14.11.2000 in W.P. 337/2000 is concerned, it is clear therefrom

that de-reservation of forests, sanctuaries and national parks was prohibited.

Therefore, exclusion of company's land in terms of the Notification under

Section 35(4) of the Act though same was being used for mining by the

company, was not in order to that extent.

So far as the letter dated 6th July, 1999 of the Government of

Karnataka is concerned, it does not in any way help the company and on the

contrary makes its case more brittle. A few paragraphs of the said letter need

to be noted here:

x x x x x x x

"Considering the above and as the present lease

will expire on 24.7.99, the P.C.C.F. has recommended for

grant of temporary working permission to the above

company to carry out the mining activities for a period of

2 years so as to avoid hardship to it, which is a

Government of India Undertaking. Further, Environment

Impact Assessment and studies on impact of mining on

flora and fauna in this sensitive area is to be carried out

by the reputed Environmental Institute and Wildlife

Institute respectively that is by Environmental Research

Institute, Nehrunagar, Nagpur (Maharashtra) and Wild

Life Institute, Dehradun (Uttar Pradesh). After these

studies are conducted and based on the recommendations

to be made by these Institutes to minimize the

environmental damage it can be decided whether to allow

the mining and renew the lease or otherwise in favour of

M/s. Kudremukh Iron Ore Company Ltd., in this

sensitive area of Western Ghat Region.

x x x x x x x

Under the circumstances explained above, I am

directed to request you to kindly communicate the

approval of Government of India on the following

proposals:

(i) for renewal of lease of 1452.74 hectares of

forest land which is already broken up in favour of

M/s. Kudremukh Iron Ore Company Ltd for a

period of 20 years with effect from 25.7.1999.

(ii) to grant temporary working permission in

the already broken up area of 1452.74 hectares

forest land to the above company to carry out

mining activities for a period of 2 years since the

lease of forest land will expire on 24.7.1999."

x x x x x x x

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It is an accepted fact that the Environment Impact Assessment Reports

of the two named institutes have not been obtained. Therefore, in reality

there was no Environment Impact Assessment report either before the State

or the Central Government. Further, the request of the State Government

was to grant temporary working permission in respect of already broken up

area, pending fulfillment of conditions enumerated.

Coming to plea that in case of a renewal there is no requirement of

compliance of Section 2 of the Conservation Act, the stand is clearly

untenable in view of decisions in Ambica Quarry's case (supra) and Rural

Litigation and Entitlement Kendera v. State of U.P. ( AIR 1988 SC 2187)

where at page 2201 it was observed that 'whether it is a case of first grant or

renewal following exercise of option by the lessee, the compliance of

Section 2 of the Conservation Act is necessary as a condition precedent'. It

may be noted here that the area in question was declared to be a reserved

area in 1960 and in 1987 the Notification under Section 35(1) was issued.

It is of significance that in the present case the Forest Advisory

Committee under the Conservation Act on 11.7.2001 examined the renewal

proposal in respect of the company's mining lease. It recommended that the

mining may be allowed for a period of four years i.e. upto the year 2005 by

which time the weathered secondary ore available in the already broken up

area would be exhausted. The Ministry of Environment and Forests deferred

a formal decision on the said recommendation as the matter was pending

before this Court.

On consideration of the materials on record we find no reason to vary

the majority view of the Committee, a statutory one when its findings and

conclusions are based on assessments of the factual aspects and after duly

considering the materials and Reports placed before it by the parties. We

have also taken note of the period indicated by the Forest Advisory

Committee, which is also a statutory Committee.

Taking note of the factual background and the legal position

highlighted above, we think it proper to accept the time period fixed by the

Forest Advisory Committee constituted under Section 3 of the Conservation

Act. That means mining should be allowed till the end of 2005 by which

time the weathered secondary ore available in the already broken area should

be exhausted. This is, however, subject to fulfillment of the

recommendations made by the Committee on eco-logical and other aspects.

The modalities as to how these have to be worked out shall be done in

the manner recommended by the Committee. It was submitted by the learned

counsel for the State of Karnataka that the recommendation made about

transfer of buildings and other infrastructure to the Forest Department of the

State Government at book value is not acceptable to it. This is a matter

which can be considered by the Committee on an appropriate motion being

made by the State before it. The modalities to be adopted to effectuate the

order passed by this Court and recommendations of the Committee shall be

worked out by the Ministry of Environment and Forests, the State

Government and the company under the supervision and guidance and

monitoring of the Committee.

Before we part with the case, we note with concern that the State and

the Central Government were not very consistent in their approach about the

period for which the activities can be permitted. Reasons have been

highlighted to justify the somersault. Whatever be the justification, it was

but imperative that due application of mind should have been made before

taking a particular stand and not to change colour like a Chameleon, and that

too not infrequently.

Certain proceedings have been initiated against the company for

alleged violation of various statutes. These proceedings shall be considered

by the respective forums/Courts in their proper perspective, uninfluenced by

any observation made hereinbefore in this judgment.

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The Interlocutory application is disposed of accordingly.