TMI Blog2002 (10) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esearch, 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. 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 Windin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued 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 exchange and discontinuou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rfumed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loes 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 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, whos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 extravaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered 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 En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 step ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ives 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 Eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 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 environm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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