Orissa Mining Corporation Ltd.

v Ministry of
Environment and Forest
Background:
The company Sterlite Industrial sought permission to construct a bauxite ore mine on
forrest land in Niyamgiri Hills, in Orissa, a region inhabited by a local indigenous tribe
called the Dongria Kondh, numbering 8,000 people including many children. The
Ministry of Environment and Forests granted provisional environmental clearance, to be
made final subject to an assessment of the planned construction’s impact on the
Dongria Kondh community.

Subsequent impact studies conducted by various official bodies concluded that the
proposed construction would interfere with the Dongria community’s rights and should
be rejected. However, the project was already embarked upon and a refinery was built
at the bottom of the Niyamgiri Hills by Vedanta.

The Ministry officially rejected Sterlite’s application for environmental clearance, stating
that the venture had displayed a blatant and shocking disregard for the rights of the
tribal groups concerned, which are protected by the Forest Rights Act. In the present
case, the company is asking the Court to overturn the Ministry’s rejection.

Issue and resolution:

Business and human rights. Whether the decision to reject environmental clearance for
the construction of a mine because of its impact on indigenous tribes is lawful. The
Court upheld the rejection on the basis that some places can – and must – be off limits
to mining activities.

Court Reasoning:
The Court considered the entitlement of tribal people to land which is owned by the
company. However, the Court went on to clarify that the State holds the natural
resources as a trustee of the people; as such, local populations must give consent to
any efforts to extract these resources. Following a series of 12 village consultations
regarding the Vedanta project, the Dongria unanimously rejected the proposal.
The Court noted that agriculture was the only source of livelihood for the tribes
concerned, apart from the collection and sale of minor forest produce to supplement
their income. The tribes had great emotional attachments to their lands. The United
Nations Declaration on Rights of Indigenous Peoples notes that tribal forest dwellers
have a right to maintain their distinctive spiritual relationship with their traditionally
owned or otherwise occupied and used lands.

Vedanta had repeatedly argued that their project would help bring ‘development’ to the
Dongria, a mainstream line about the beneficial impact that such a venture would have
on a ‘backward or primitive tribe’. However, the construction of an open-pit mine would
have devastated their habitat, resulting in negligible ‘development’. The mine’s
accompanying initiatives were also all geared towards the permanent alteration of the
Dongria’s way of life and independence.

While disposing of the Writ Petition, the Apex Court, in Para 15 of the Judgement,
observed as follows:

"The blatant disregard displayed by the project proponents with regard to rights of the
tribals and primitive tribal groups dependant on the area for their livelihood, as they
have proceeded to seek clearance is shocking. Primitive Tribal Groups have specifically
been provided for in the Forest Rights Act, 2006 and this case should leave no one in
doubt that they will enjoy full protection of their rights under the law. The narrow
definition of the Project Affected People by the State Government runs contrary to the
letter and spirit of the Forest Rights Act, 2006. Simply because they did not live on the
hills does not mean that they have no rights there. The Forest Rights Act, 2006
specifically provides for such rights but these were not recognized and were sought to
be denied."

T.N. Godavarman Thirumulkpad v. Union of

India
Facts of the Cases

1. The petitioner T.N. Godavarman has filed a writ petition in 1995 at Supreme
Court of India to protect the Nilgiris forest land from deforestation by the illegal
ways for timber operations. So, keeping in mind, about the importance of
protection and conservation of the forests throughout the country. So the court
has recommended to conduct a proper hearing about the matter to examine the
depth of the case in regard to the National Forest Policy.

2. So, according to the section-2, any activity within any forest in any state all over
the country will be done with the approval of the central government and if not,
the central government has the authority to cease the premises.

Issues Raised

1. Areas that fall under the category of ‘FOREST’ should be identified, any law that
should classify such forest irrespective of the ownership of the land.

2. That areas should also be classified or identified which were earlier forests but at
recent they were standed out to be degraded, denuded or cleared.

3. Areas covered with plantation trees should also segregated between government
and private belongings.

Judgement

 On 12 December 1996, a bench led by Chief Justice J.S. Verma passed an

interim order coordinating that tree-felling and non-forestry service movement in
forestland the nation over be halted.

 It set out that ‘forests’ will be perceived by its word reference meaning, and the
provision of the Forest (Conservation) Act 1980, will apply to all thickly wooded
regions. States were coordinated to form master councils to distinguish forests as
defined and document reports.

 new definition and is subject to Section 2 of the Forest Conservation Act 1980.
This section states that no state government or any other authority can make use
 of land of the forest for any non-forestry activities through the prior permission of
the Central Government. Concerning the new interpretation of Section 2 of the
Forest Conservation Act and forest land, it can not de-reserve safeguarded forest
for commercial activities without consent. This means all forest ventures require
the permission of the Central Government. For example activities such as a
sawmill, mining and plywood factory can function with the approval of the Central
Government.

 The court has observed that the land belongs to the defendant and he has full
right over his property or premises but the activity that was happening at the
premises was illegal as according to the Forest (Conservation) Act, 1980, the
deforestation of the plantations was considered as illegal without the prior
permission of the central government or the forest department of the concerned
district or area whether the property belongs to government or an private
individual.

 With the above decision, in addition to it the court has also observed that there
should be a complete ban on the cutting of any kind of trees without the approval
to maintain the proper ecological balance and to preserve the bio-diversity.

 The cutting or felling of trees shall be applicable on everyone whether the

railways, roadways or the waterways need it. The state government has the
authority to cut trees that too with reasonable measures to ensure the proper the
ecological balance. No other private individual was allowed to cut the trees.

 A complete restriction is there on the transportation of cut trees and timber from
any part of the seven northeastern states of India. There should be no movement
of wood through rail, road or waterways from these parts. The India railways and
the state authorities have taken restrictive measures to protect and ensure there
is no violation. The defendants were also asked to find substitutes for wood.

 Further more. The court has constituted different committees comprising of

Principal Chief Conservator of Forests and another Senior Officer to oversee the
functioning of the committees to ensure proper functioning of the system.
 1. State of Jammu and Kashmir

2. State of Himachal Pradesh and the Hill Areas of the U.P and West Bengal

3. State of Tamil Nadu

 These are the states who were directed by the committees formed by the court
for the maintenance of the forests and to protect the mother nature.

Rule of Law

The basic rule of law that was followed in the above case, that whether land is owned
by an individual or it is a government property, the deforestation will not be acceptable
by the system as it was degrading the environment and will also create ecological
imbalance in the nature which was already stated under the Forest (Conservation) Act,
1980.

Comment

It was made clear that the environment should not be compromised at any cost whether
the matter of development or anything else. The cutting of trees should only be done
with approval of state government and forest department who should take proper
reasonable measures which would also ensure the ecological balance and maintain the
bio-diversity. It was also proved that the Forest (Conservation) Act, 1980 stuck down the
Property rights Act.

Negative aspects of the Judgment

The judgment made by the Supreme Court led to the creation of a large black market of
timber. This facilitated illegal activities in the forest land such as deforestation to make
use of the land for non-forestry activities. There was excessive intervention made by the
court in the functioning and working of the Ministry of Environment and Forest. Due to
this, the Ministry of Environment and Forest did not have a voice of their own; they were
always overpowered by the directions made by the court and its authorities. This case
led to the monopolisation of all powers in the hands of the Central Government. Now
only the Central Government had the authority to decide concerning environmental laws
in India.
Although these stated above are the negative aspects of the judgement. But there are
numerous benefits concerning the conservation of forest land from the vicious timber
mafia. This case showcases the relevance of environmental justice in the court. And
also the role of environmental authorities. It highlighted the role played by the judicial
authorities and the court in exercising their intervention on aspects of environmental
matters. This case witnessed the role played by environmental authorities, courts and
other related stakeholders.

2005 case
Background

On 23rd November, 2001, after considering the affidavits that had been filed, it was
noted that large sums of money had been realized by various States from the user-
agency to whom permits were granted to use forest land for non-forest purposes. The
moneys were paid by user agencies to the State Governments for compensatory
afforestation but the utilization was only about 83% of the funds actually realized by the
State Governments, the shortfall being of nearly Rs.200 crores. The Ministry of
Environment and Forests (MOEF) was directed to formulate a scheme providing that
whenever any permission is granted for change of use of forest land for non-forest
purposes and one of the conditions of the permission is that there should be
compensatory afforestation, then the responsibility of the same should be that of user-
agency and it should be required to set apart a sum of money for doing the needful.

The Central Empowered Committee (CEC) on consideration of relevant material

including the scheme submitted by MOEF made its report (IA 826) containing
recommendations dated 9th August, 2002. The report, taking note of the present system
of compensatory afforestation as per guidelines issued by MOEF from time to time
under the FC Act, the procedure for receipt and utilization of funds for compensatory
afforestation, activities permissible under compensatory afforestation, adequate
compensation for loss of forest land recovery of Net Present Value.
Notification dated 23rd April, 2004 issued by MOEF in exercise of the powers conferred
by sub-section (3) of Section 3 of the EP Act constituting an authority known as
Compensatory Afforestation Fund management and Planning Authority (hereinafter
referred to as 'CAMPA') for the purpose of management of money towards
compensatory afforestation, NPV and any other money recoverable in pursuance of this
Court's order and in compliance of the conditions stipulated by the Central Government
while according approval under the FC Act for non-forestry uses of the forest land.

LAWS APPLICABLE

Forest act S. 2

EPA S. 3 and 5

POINT IN ISSUE

The point in issue is whether before diversion of forest land for non- forest purposes and
consequential loss of benefits accruing from the forests should not the user agency of
such land be required to compensate for the diversion. If so, should not the user Agency
be required to make payment of Net Present Value (NPV) of such diverted land so as to
utilize the amounts so received for getting back in long run the benefits which are lost by
such diversion? What guidelines should be issued for determination of NPV? Should
guidelines apply uniformly to all? How to calculate NPV? Should some projects be
exempted from payment of NPV?

JUDGEMENT

Except for government projects like hospitals, dispensaries and schools referred to in
the body of the judgment, all other projects shall be required to pay NPV though final
decision on this matter will be taken after receipt of Expert Committee Report.
Indian Council for Enviro-Legal Action v.
Union of India
Facts

 This was a writ petition filed against a group of chemical factories (Respondents),
owned and run by the same group of individuals and situated in the same
geographical area, by an environmentalist organization named the Indian Council
for Enviro-Legal Action (Petitioner). This community was based in Bicchri, a small
village located in Rajasthan, India, in the Udaipur District.

 The first major industrial establishment, Hindustan Zinc Limited- a public sector,
was established north of this village. The real problem began in 1987 when a
chemical factory, Hindustan Argo Chemicals Limited, began producing chemicals
such as Oleum (a concentrated form of sulphuric acid) and Single Super
Phosphates.

 And the real calamity took place when a sister concern of it, Silver Chemicals,
began the production of ‘H’ acid in their plant exclusively for export purposes.
The manufacture of ‘H’ acid gave rise to enormous quantities of highly toxic
effluents, especially iron-based and gypsum-based sludge, which posed serious
threats and consequences to the Earth if not correctly handled. By-products were
poisonous.

 These all produced the development of toxic effluents in that particular area
which is not properly handled by the industries. Whether it is water, whether it is
air or everything that comes into contact with these industries has been polluted.
  According to a survey, during the processing of approximately 375 tonnes of ‘H’
acid, about 2500 tonnes of highly toxic sludge was released. The sludge was not
adequately disposed of by these facilities and was actually thrown out in the
open in the field areas instead.

 This has had seriously detrimental consequences. These harmful substances

started to drain deep into the earth over a period of time, causing the aquifers
and subterranean supply of water to become contaminated. In the village area,
the water in the wells and streams began to turn dark in color and was badly
affected, rendering it unfit for any use.

 The soil had also been degraded, making it unfit for cultivation, which was a huge
blow for the villagers for most of them relied on agriculture for their livelihoods.
Among the villagers, the chemicals caused death and sickness.

 Such catastrophic results raised an echo in the Parliament and the Minister
promised that action would be taken but nothing successful was done on the
spot. The villagers then revolted, leading to the imposition by the District
Magistrate of the region of Section 144 of the Criminal Procedure Code and the
shutdown of Silver Chemicals in January 1989.

Issues Raised in Indian Council For Enviro-Legal Action v. Union of India

1. If such activity causes damage to the lives, health, and livelihoods of individuals
who might be subject to risk due to such activity, what should be the amount of
obligation of companies engaged in a dangerous industrial activity?
2. Will the respondents be responsible for paying the original amount of
compensation or a new amount of interest because they have deferred
compliance with the judgment?

Principle Applied

The court applied the ‘Polluter Pays’ concept for the first time. This concept requires that
“the financial costs of preventing or remedying the damage caused by pollution should
be incurred by undertakings that cause or produce pollution-causing goods.”
In other words, it means that the responsibility for undoing the damage caused by
environmental destruction as a result of one’s actions must be borne by that person,
and not by the government or taxpayers themselves. In this way, this theory imposes
total liability.

Judgment

 The Supreme Court relied on the judgment given in M. C. Mehta v. Union of

India[2]. This case is responsible for the inclusion and evolution in India of the
law of absolute responsibility. This rule states that “if any person is engaged in
any inherently dangerous or dangerous activity and if any harm is caused to any
person during the performance of such dangerous activity, the person performing
such activity will be absolutely liable and will not be able to plead for defense.”
The Supreme Court has held that this law extends to the present case.

 Intentionally, the respondent sectors have failed to comply with the orders of the
court. As no successful corrective steps have been taken so far, a large number
of residents have already been seriously affected. In their policy to fail to comply
with the court’s ruling, the respondent industries have succeeded by keeping the
case going on for more than fifteen years by making interlocutory requests that
were utter without any substance and were thus consequently dismissed with
costs.

 The court ruled that the amount of compensation for losses and remedial steps
will be determined by the central government. In the event of non-compliance on
the part of the respondents, the court noted that, in accordance with the law
under which the court directed the factories, plants, machinery, and all other
immovable assets owned by the respondents to be attached, the central
government could recover the amount.

 The respondent industries were ordered to pay Rs. 37,385,000 INR along with a
compound interest of 12 percent annually after 11 April 1997 before the amount
had been fully charged or compensated. It also instructed the claimant sector to
cover the litigation costs. In addition to this, the court also ordered the claimant
 sector to pay Rs. 10 lakhs to be used in Bicchri and other nearby areas of
Udaipur District to carry out remedial steps.

Analysis

The Polluter Pay Principle implemented by the court is very beneficial in reducing the
danger and harm to mother earth. There was an uncertainty in the decision that
possessed a simple identification of the real polluter.

The quantum of payment is determined, the law of total responsibility and the Polluter
Pays principle enforced, interest is levied on the pay-out amount to ensure that the
damage done is paid for and that it is proportionate to the destruction caused so that the
accused does not end up taking the benefit of his own wrongs.

As for the non-compliance of the Respondents with the court order and the evasion of
responsibility, it should have been dealt with more harshly and well before the pendency
of the case crossed 15 years because the damage caused to the villagers was too great
in magnitude and in need of urgent intervention not to have been compensated for 15
entire years.

In conclusion, while it is clear that all aspects of the case have been resolved and
directives have been given to redress the injustices and abuses caused, we can still not
claim that justice has been done to the poor villagers who in this case seem to be the
only party genuinely at loss.

Citation : (2011) 8 SCC 161

Issue: What are the principles of justice to be strictly followed while upholding the
finality of a judgment to avoid unscrupulous litigations aiming at unjust enrichment?
Facts: The above judgment had not been implemented to its entirety even after 15
years, and hence the Writ Petition was filed in 2011 to end the ongoing abuse of
process of law by the respondents through unnecessary and repeated filing of
interlocutory applications to evade payment.

Petitioner’s Contentions: The liability to pay has been fixed on R4-8 under the
“polluter pays” principle in 1996 and the subsequent decrease in the pollutants’
presence due to passage of time do not dissolve their responsibility because there has
been persistent public nuisance, suffering, degradation by pollution and damage to the
resources. The respondents has shown deliberate disrespect to environmental laws and
the SC’s final judgment and they cannot demand investigation of the nine scientifically
curated reports prepared after numerous surveys and field visits. Respondents shall be
demanded to pay additional pecuniary penalty for their conscious conduct to escape the
liability imposed on them, and for continuing operations without adequate licenses.

Court’s observations: Among the previous I.As filed, R.4 questioned the authenticity of
the NEERI Report, submitted its own experts’ reports, seeking the closure of orders
passed by the SC in 1996. Serious attempts were made to discredit the report, which
led to R.4’s closure. Review petitions and curative petitions claiming that the NEERI
Reports have been inconsistent were dismissed by the SC. R1, R2 and R3 had made a
priority-wise joint submission for a remediation plan and related steps for mitigating the
environmental damage caused by the other respondents, which could not be
implemented due to the respondents’ intentional defiance. No reports could prove the
liability of R9 in polluting the village’s environment.

Final Decision: The SC identifies the IAs as part of the respondent’s business tactics to
avoid compliance of the 1996 judgment, which has rightly concluded all the relevant
questions that are pointlessly raised again through the IAs. Allowing parties to review,
reopen and reconsider the concluded judgments of the Court is an abuse of process of
law, only to adversely impact the purpose and administration of justice. The SC relied
on several Indian and foreign precedents to conclude that the respondents had an
ample opportunity to be heard and therefore, cannot be allowed to use the backdoor
entry method for unjust enrichment. It directed the respondents to pay the
compensation along with compound interest of 12% p.a.

M.C. Mehta v. Kamal Nath

Facts
'Span Motels Private Limited.' was a private corporation operated by the founders of
Span Resorts that developed a new project known as "Span Club" on the river's edge.
The "Indian Express" released an explosive article headlined "Kamal Nath defies the
powerful Beas to keep his dreams floating" that revealed problems with the Span Club's
development. After the article was published, it was discovered that the 'then Minister of
Environment and Forests'.

Mr. Kamal Nath was involved directly in the Span Motel case. The Ministry of
Environment and Forests provided its previous approval to the corporation leasing
roughly 27.12 bighas of additional forest area in a letter dated November 24, 1993.
(Dated April 11, 1994). This decision allowed the company's founders to proceed with
their extravagant project, dubbed "Span Club," which resulted in the river overflowing.

Also, owing to the pressure from bulldozers, tractor trolleys, and earthmovers used to
build strongly cemented embankments along the river, which caused a shift in the Beas
river's channel, the adjacent lawns were wiped away. In 1995, the Beas River triggered
a massive flood that damaged property valued roughly 105 crores.

Issues:

1. Was the construction carried out by Span Motels Pvt. Ltd. legal and justified?

2. Is it possible that Mr. Kamal Nath was wrongfully charged by the court?

3. Whether or not the "Public Trust Doctrine" applies in India?

Arguments Of The Petitioner

The petitioner contended that this building disrupted the environment's ecological
balance and harmed the natural conditions of forest land, water, and air, which are gifts
from nature, and that it would be considered a breach of Article 21's fundamental right.
This would also constitute a breach of Article 51A (g).
"Protection of life and personal liberty" is the subject of Article 21. The notion of the right
to life includes nature and the environment, without which life cannot be enjoyed in a
healthy, joyful, and happy manner. As a result, it has become a basic right of every
Indian person to live a healthy life free of pollution.

"The duty of every citizen to look after the environment," as mentioned in Article 51A (g).
Every citizen of India has a responsibility to preserve and maintain the environment
since any disruption in any of the natural components required for life would be harmful
to the lives of all people of the nation.

Arguments Of The Respondent

Mr. Kamal Nath denied the charges levelled against him. He alleged that M.C. Mehta
had falsely accused him. He said that the claims made in the press reports were
unfounded. They are false and exaggerated, and then they were released to tarnish his
reputation. It was also claimed that the development took place on land owned by Span
Motel. The surrounding area was constructed to protect the land from future floods.

Judgement
This case was heard in court by a two-judge panel, which ordered and instructed that:
After so much deliberation, the court granted the "Public Trust Doctrine" in this case.
The public trust doctrine, as stated by the judges throughout the hearing, should be
included in the Land laws. The court rejected the earlier approval issued by the Ministry
of Environment and Forests, as well as the lease instrument in favour of the corporation
for an area of 27.12 bighas.

The Himachal Pradesh government was given the task of taking control of the land and
returning it to its natural and environmental state. The court ordered the hotel to pay the
cost of environmental and ecological restitution settlement under the Polluter Pay
Principle.

The pollution generated by the construction of the hotel on the River banks of the
Beas was ordered to be reversed and removed by the court. It was decided that NEERI
should investigate the motel's pollution control strategies. For its development, the hotel
was compelled to create a 4-meter-long boundary wall, beyond which they were not
entitled to access the river basin's property. The Motel should not even use a portion of
the river basin.

From the Motel's border wall, the river basin should be left intact. The river's bank and
basin should be left accessible to the general population. The hotel was prohibited from
dumping untreated sewage into the river. The Board was ordered to inspect all hotels,
institutions, and companies in the Kullu-Manali area, and if any of them are discovered
red-handed releasing untreated garbage into the river, the Board shall take strict legal
action against them. The Motel, through its management, should demonstrate why an
extra pollution fee is not mandatory. The reports were to be submitted by the 17th of
December 1996 and listed on the 18th of December 1996.

4. Section 91 of the CPC provides the right of action in case of public nuisance. Herein,
the person under this section, polluting the atmosphere is liable to pay Rs. 200/- which
is rather meagre; therefore there are several other provisions available to effectively
preserve the environment. In addition to this several states have their own laws
regulating pollution

5. Court observed that, “environment pollution amounts to civil wrong against the whole
community…in addition to damages the person guilty can be held liable to pay
exemplary damages so that it can act as a deterrent for others”

Case Analysis
According to the lawsuit Mr. Kamal Nath (Minister of the Environment and Forest
Department) abused his position, resulting in environmental deterioration, damage, and
pollution. He put his financial interests first, putting them ahead of his responsibilities
and duties to the nation's natural resources. In this case, it was determined that Kamal
Nath was directly engaged with the hotel since he used to own a majority of the
company's shares. Property damage totaling over 105 crores was caused by his greed
and misuse of authority.

An unprecedented flood caused the damage, which was the result of the hotel
company's ongoing building on the river bank. Mr. Kamal Nath was the subject of a PIL
filed by MC Mehta. After numerous debates and lengthy hearings, the court issued a
landmark decision allowing the Doctrine of Public Trust concept to be applied in India.
Finally, the Indian judiciary delivered justice to the environment and natural resources,
something the ministry of forest and the environmental department had failed to
achieve.