Holding

Mining in Kudremukh National Park must cease as per the Committee’s recommendation; the lease cannot be renewed for twenty years and mining is permitted only until the end of 2005 subject to ecological safeguards.

Summary

The Supreme Court considered an interlocutory application filed by a wildlife trustee seeking an injunction to stop mining by Kudremukh Iron Ore Co. Ltd. in Kudremukh National Park, a area declared a national park under the Wildlife Protection Act. The company argued that its mining lease, expiring on 24‑07‑1999, could be renewed for twenty years and that various notifications excluded the land from forest law. The Court held that Section 2(ii) of the Forest (Conservation) Act bars non‑forest activities in such areas, that the Mineral Concession Rules cannot override this prohibition, and that the notification under Section 35(4) of the Wildlife Protection Act does not legitimize mining. The Court accepted the recommendation of the Forest Advisory Committee that mining may continue only until the end of 2005, subject to ecological conditions, and rejected the company's claim for a longer renewal. Consequently, the interlocutory application was disposed of without granting the injunction.

Issues considered

The legality of renewing the mining lease for twenty years in a national park declared under the Wildlife Protection Act.
Whether Section 2(ii) of the Forest (Conservation) Act and Rule 24B of the Mineral Concession Rules prohibit mining in the park.
Whether the notification under Section 35(4) of the Wildlife Protection Act excludes the land from the ambit of forest legislation.
Whether prior approval of the Central Government is required for non‑forest use of forest land.
The binding nature of the Central Empowered Committee’s recommendation to wind up operations within five years or upon exhaustion of ore.
The appropriateness of granting an injunction to stop mining activities.

Legislation cited

Environment (Protection) Act, 1986s. 3
Forest (Conservation) Act, 1980s. 2(ii)
Forest (Conservation) Rules, 1981s. 4, s. 5, s. 6
Karnataka Municipalities Act, 1964s. 349
Mineral Concession Rules, 1960s. Rule 248, s. Rule 24B
Wildlife (Protection) Act, 1972s. 35(1), s. 35(4)

Subjects

environmental lawforest conservationwildlife protectionmining leasenational parkinjunctionpublic trust doctrinesustainable developmentprecautionary principleconstitutional environmental duty

Judgment

K.M. CHINNAPPA IN T.N. GODA YARMAN THIRUMALPAD A
v.
UNION OF INDIA AND ORS.

OCTOBER 30, 2002

[B.N. KI RP AL, Y.K. SABHARWAL AND ARIJIT PASAYA T, JJ .] B

Environment Law:

Forest (Conservation) Act 1980-Section 2(ii): Wildlife Protection, Act
1972-Section 35(1): Environment (Protection) Act, 1986-Section 3: C
Karnataka Municipalities Act, 1964-Section 349: Mineral Concession Rules,
1960-Rule 24B:

Forest-Conservation of-Kudremukh National Park-Preservation
of-A Company continuing to carry out mining operation in the National D
Park in violation of the order of Supreme Court-Interlocutory application
by Wildlife trustee-Seeking directions to stop mining activities by the
Company-Mining lease ofthe company expiring on 24. 7.99-Forest Advisory
Committee while examining renewal recommending that mining be allowed
upto year 2005 by which time the weathered secondary ore available in the
already broken area should be exhausted-However formal decision deferred E
as matter pending-Matter referred to Central empowered Committee-
Committee per majority of the view that the company be asked to wind up
its operation within the period of jive years or on the exhaustion of the
oxidized weathend secondary ore, whichever is earlier in the already broken
up area and the period of jive years would commence from the date when
lease expired-Plea of company that land under mining outside the purview F
of the operation of the Acts-Held: there is no reason to vary the view since
the findings and the conclusion of Committee, a statutory one, based on
assessment offactual aspects and materials and reports placed by the parties-
Time period fixed by Forest Advisory Committee that mining should be
allowed till the end of 2005 is accepted. G
Mining activities were carried out in the area of Western Ghat Region
by Kudremukh Iron Ore Co. Ltd. (Company) under lease which was declared
to be National Park in terms of Section 35(1) of the Wild Life Protection
Act, 1972. This Court passed an order whereby operation of any order
H
541
542 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A permitting removal of certain trees from national parks, Game sanctuaries_
and forest was injucted. It is i;lleged that the Company continued mining ,
operations notwithstanding the order.

Applicant-trustee of Wildlife organization filed the instant
interlocutory application seeking directions to stop mining activities by the
B company, to stop polluting the Bhadra river, to take action against illegal
encroachment and destruction of forest in the Kudremukh National Park. As
the mining lease was to expire on 24. 7.99 application was made for renewal
of lease for 20 years and for grant of temporary work permission in already
broken up area. Forest Advisory Committee examined the renewal and allowed
C mining upto year 2005 by which time the weather secondary ore available in
the already broken up area should be exhausted. However, the Ministry
deferred its decision on the said recommendation as the matter was pending
before this Court. Also there was no Environment Impact Assessment Report
either before State Government or Central Government. The matter was
referred to the Central empowered Committee. The Committee per majority
D was of the view that the company be 'l!sked to wind up its operation within a
peri·od of five years or on the exhaustion of the oxidized weathered secondary
ore, whichever is earlier in the already broken up area and the period of five
years would commence from the date when lease expired.

It was contended on behalf of the Company that notwithstanding anything
E provided under the Wildlife Act, Conservation Act or 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; that the notification under Section 35(4) of the Wildlife Protection
Act, specifically excluded land under mining; that under the notification dated
F 29.5.1982 issued under Section 349 of the Karnataka Municipalities Act the
concerned area cannot be a treated to be a forest land; that 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; that in
case of a renewal there was no requirement of compliance of Section 2 of the
•
Conservation Act; that the State and Central Governments at earlier points
G of time had acceded to the request of the company for renewing the lease for
twenty years; 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; that the period as suggested by
H Committee should be reckoned prospectively and not retrospectively and the
K.M. CHINN A PP A INT.N. GODAVARMANTH!RUMALPADv. U.O.l. 543
two years' period already covered by temporary work permit should be A
reckoned while computing the period; that the subsisting contracts with some
foreign countries are operative till 2005 and 2006 and at least adequate time
could be given to fulfil these contracts; and that the Company has taken all
possible steps to preserve and conserve nature in its pristine glory.

On behalfof the State it was contended that originally it had accepted B
the proposal for 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.

Amicus Curiae submitted that stands of the company are per se not
acceptable; that even without any Environment Impact Assessment Report, C
State Government and Central Government took stand for granting 20 years
renewal period; that there was no consistency in the stand of State and Central
Government because at one point of time they agreed to renewal period of20
years and subsequently turned around to five years period, and then again
took inconsistent stands; that there was no proper application of mind and D
without realizing the serious consequences involved, recommendations were
made; and that the action of State Government in excluding land while issuing
notification under section 35(4) of the Act was in violation of order of this court.

Disposing of the application, the Court

HELD: I.I. So far as the effect of Rule 24 B of the Mineral Concession E
Rules is concerned, Section 2(ii) of the Conservation Act rules out non-forest
activities. The Section begins with a non-obstante clause providing that
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 p
enumerated in the provision. Admittedly, Central Government did not accord
the approval for use of any forest land or any portion thereof for being used
for any non forest purpose. That being so, Rule 248 of the Mineral Rules
cannot be of any assistance to the company. So far as the order 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 G
company's land in terms of the Notification under Section 35(4) of the Wildlife
Protection Act though same was being used for mining by the company, was
not in order to that extent. 1568-A-EI

1.2. The submission that the Notification dated 29.5.1982 issued under
Section 349 of the Karnataka Municipalities Act excluded the land in question H
544 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A from being forest land, is clearly untenable in view of Section 2(ii) of the Forest
(Conservation) Act, 1980. [551-E, F]

State of Bihar v. Banshi Ram Modi and Ors .. (1985] 3 SCC 643,
overruled.

B Ambica Quarry Works v. State a/Gujarat and Ors., (1987] I sec 213,
relied on.

Tarun Bharat Sangh, A/war v. Union of India and Ors., [1992 [ Supp. 2
SCC 448; Tarun Bharat Sangh, Alwar v. Union ofIndia and Ors., [1993[ Supp.
3 SCC 115; TN. Godavarman Thirumulkpadv. Union ofIndia and Ors., [1997]
C 2 SCC 267 and TN. Godavarman Thirumulkpad v. Union of India and Ors.,
(1997[ 3 sec 312, referred to.

1.3. The plea that in case of a renewal of the lease there is no
requirement of compliance of Section 2 of the Conservation Act, is clearly
untenable. [569-F[
D
Amhica Quarry Works v. State of Gujarat and Ors., (1987[ l SCC 213
and Rurul Litigation and Entitlement Kendra v. State of U.P., AIR (1988) SC
2187, relied on.

1.4. There is no reason to vary the majority view of Committee, a
E 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. Also the period indicated by the Forest Advisory
Committee is taken note of, which is also a statutory _Committee. (570-B-C[ -

F 1.5. Taking note of the factual background and the legal position it _is
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 which is subject to
fulfilment of the recommendations made by the Committee on ecological and
G other aspects. The modalities as to how these have to be worked out shall be
done in the manner recommended by Committee. 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 guidelines
H and monitoring of the Committee. (570-D-GI
\
'
K.M.CHINNAPPAINT.N.GODAVARMANTH!RUMALPADv. U.O.l. 545

1.6. The submissions of the State that the recommendation made about A
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 Committee on an appropriate motion being made
by State before it. (570"E,
... F)

Sachindanand Pandey and Anr. v. State of West Bengal and Ors., AIR B
(1987) SC 1109; Virender Gaur v. State of Haryana, (1995) AIR SCW 306;
M.C. Mehta and Anr. v. Union ofIndia and Ors., AIR (1987) SC 965; Divisional
Forest Officer and Ors. v. S. Nageswaramma, (199616 SCC 442; M.C. Mehta
v. Kamal Nath and Ors., (19971 I SCC 388; Vishaka and Ors. v. State of
Rajasthan and Ors., (199716SCC241 and Rural litigation and Entitlement C
Kendra v. State of U.P., AIR (1988) SC 2187, referred to.

"Law and Environment" by P. Leelakrishnan; 'Environmental Law' by
Simon Bell and Stuart Bell; World Commission on Environment and
Development-Our Common Future (1987); International Wild Life Law,
M.R.M. Prince Philip the Duke of Edinburgh; Academy Law Review pages D
137-138 and Halsbwy's Laws ofEngland (Fourth Edition, Volume 38, para
66, referred to.

2_ State and Central Governments were· not very consistent in their
approach about the period for which activities can be permitted for which the
reasons have been given. Whatever be the justification, it was but imperative E
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.
(570-H; 571-AI

3 Certain proceedings initiated against the company for alleged
violations of various statutes will be considered by the respective forums/ p
courts in their proper perspective, uninfluenced by any observation made in
this judgment. [571-A-B)

CIVIL ORIGINAL JURISDICTION: I.A.No. 670 of2001.
IN
Writ Petition (C) No. 202of1995.
G

(Under Article 32 of the Constitution of Indian).

Harish N. Salve, Solicitor General, K.K. Venugopal, Ashok H. Desai,
Arun Jaitley, C.S. Vaidyanathan, Ranjit Kumar, U.U. Lalit, (AC), Siddharth
Choudhary, P.K. Manohar, A.D.N. Rao, S. Wasiin A. Qadri, Ms. Anil Katiyar, H
546 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Shiva Subramanian, S. Sukumaran, Ms. Divya Nair, Ramesh Babu M.R., Sanjay
R. Hegde, · Ms. P.S. Shroff, Manu Nair, Maninder Singh, Ms. Pratibha M.
Singh, Ms. Kavita Wadia, Ms. Anubha Arora, Ankur Talwar, Ms. Ruby Singh
Ahuja, Anil Kumar Sangal, Ms. Praghya, Ramesh N. Keshwani, Ram Lal Roy,
G. Sivakumaran, Naresh K. Sharma, Makarand D. Adkhar, S.D. Singh, Vijay
B Kumar, Vishwajit Singh, Bharat Sangal, Ms. Sangeeta Panicker, Rana Ranjeet
Singh, S. Ravindra Bhat, Naveen R. Nath, Ms. Lalit Mohini Bhat, Ms. Hetu
Arora, A.N. Jayaram and Adv. General for Karnataka/for the appearing parties.

The Judgment of the Court was delivered by

ARIJIT PASA YT, J. By destroying nature, environment, man is
C committing matricide, having in a way killed Mother Earth. Technological
excellence, growth of industries, economical gains have led to depletion ;:if
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
D 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, Widlife First.

The said I.A. 670 of 2001 in an offshoot of I.A. 548 filed by learned
E 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 Widlife (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
F was injuncted. Subsequently, the word 'forests' was deleted.

Jn the present I.A. learned Amicus Curise 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
G 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 KlOCL to stop polluting the Bhadra river due to open cast
mining;
H
K.M. CHINN APP A IN T.N. GODAVARMANTHIRUMALPADv. Ll'.O.l. [PASAYAT,J.] 547
\C) take action against KIOCL for illegal encroachment in the forests A
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."
B
On 10.5.2001, this Court passed an order to the following affect:

"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 affected on respondent No. 2 thought Mr. S.R. Hegde, Advocate
and on respondent No./3 by ordinary process and by registered post. C
Union of India will file an affidavit within eight weeks and in the
affidavit they will also state the reason as to way the Government of
India having once notified the areas a National Park then permit
mining activity to be carried out notwithstanding this Court's order of
12th Decemb~r, 1996.} D
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 E
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 F
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. G
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 H
548 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 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
B 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
C National Park and for other protected areas in the State of
Kamataka;

(iv) a Monitoring Committee shall be constituted by the MoEF
comprising representative of MoEF, representative of the State of
Kamataka, two NGO experts preferably from Kamataka, which
D 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
E 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
F dissenting note. According to him all mining operations must stop immediately
and the five years' period starting on :>5th 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 •·
G 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.

H While contending that there was no violation of any law relating to
K.M. CHINNAPPA IN T.N. GODAVARMANTH!RUMALPADv. U.O.l. [PASAYAT, J.] 549

forests and environment certain legal issues were raised by the Company A
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 B
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 C
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
outs.ide the purview of the operations of the- Act, Conservation Act and the
Environment Act.
D
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 E
Central Government 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 be F
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 G
foreign countries are operative till 2005 and 2006 and at least adequate time
could be given to fulfil 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 H
550 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A and fair.

The company has taken a stand that it is earning valuable foreign
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
B there is possibility of extracting 342 million tons of primary ores, in addition
to 119 million tons of secondary weathered ores. Jn fact, the coinpany'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.
c 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
D 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 environment 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
E 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
F 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 treated to be forest land. A reference was also made to a decision
G 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
H than what it deserves. With reference to the report of Shri Valmik, ii is pointed
. K.M.CHINNAPPAINT.N.GODAVARMANTHIRCJMALPADv. U.0.1. [PASAYAT,J.] 551
out that the situation is so grave that "hands off situation" has come to play. A
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 Government because at one point of B
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: C
" ....... 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. D
Bans hi 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 be
made to the decisions in Tarun Bharat Sangh, A/war v. Union of India and
Ors., [1992] Supp. 2 SCC 448 Tarun Bharat Sangh, A/war v. Union of India E
and Ors., [1993] Suppl. 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 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 F
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 surrounding, but obviously that is a concept which is relatable to
G'
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. H
552 SUPREME COURT REPORTS (2002) SUPP. 3 S.C.R.

A 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.

"Ho~ can you buy or sell the sky, the warmth of the land? The
idea is strange to us.

B 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
C 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
D 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 Washingto.n sends word and he
E 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.

F 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
remem.ber 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 tell of events and memories in the life of my people. The water's
murmur is the voice of my father's father.
G
'
Th~ 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.
H
K.M. CHINNAPPA IN T,N. GODA YARMAN THIRUMALPAD v. U.O.l. (PASA YAT, J.] 553
We know that the white man does not understand our ways. One A
portion of land is the same to him as the 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 no
care.
B
He kidnaps the earth from his chiidren. 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.
c
I do not know. Our ways are different room 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 the leaves in spring or the rustle of in insect's wings. D
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 E
of a pond, and the smeil of the wind itself, cleansed by a mid-day rain,
or scented with the pinion 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 beathes. Like a man F
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 keen it apart and sacred as a place where even
the white man can go to taste the wind that is sweetened by the G
meadow's flowers.

So we will consider your offer to buy our land. If we decide to
accept, I will rnake one condition. The white man must treat the beasts
of this· Jand as his brothers.
H
554 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 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.

B 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.
C 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
D 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 get does to himself.
E
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 your own him as you wish to own our land; but you cannot.
F 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.
G 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 slaughte~ed, the wild horses are tamed, the secret corners of the
H forest heavy with scent of many men and the view of the ripe hills
K.M. CHINN APP A INT.N. GODAVARMANTHIRUMALPADv. U.0.1. [PASAYAT, l.] 555
blotted by talking wires. Where is the thicket? Gone, where is the A
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 ground with all others" said Zarathustra. Environment is B
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 tlie fundamental right to freedom, equality, and adequate
conditions of life. In an environment of equality that permits a life of C
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. D
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 Pythagorus who said:
E
"For so Icing 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 sees of murder and pain cannot reap joy and love."

Article 48-A in Part IV (Directive Principles) of the Constitution oflndia, F
1950 brought by the Constitution (42nd Amendment) Act, I 976, 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 td 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 G
and to have compassion for living creatures. The word "environment" is of
broad spectrum which brings· within its abmit "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 H
556 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 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
B without which life cannot be enjoyed. Any contra acts or actions would cause
environmental pollution. Therefore, hygienic environment is an integral facet
ofright 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 environmental
C 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
environme.ntal.
D
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
E 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
F .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 arid third places it has quite different unforeseen effects which only
G 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 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
H International Association for the Protection of Nature and Natural Resources
K.M. CHINN APP A IN T.N. GODAVARMANTHIRUMALPADv. U.0.1. [PASAYAT,J.] 557
calculates that now, on average, one species or sub-species is lost every year. A
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 ujgent
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 B
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
the industrial revolution, the legislatures throughout the world are busy in
c
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, D
the tailoring of the existing I.aw 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,
E
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 F
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 modem period make interesting reading. Attention has to be paid
to identify the areas of great concern to the legislature; the techniques
G
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 Environment Law.
H
558 SUPREME COURT REPO.RTS [2002) SUPP. 3 S.C.R.

A 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 cons.idered 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
B 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
C 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 e~vironment and he tried to act accordingly. Those
D aspects have been highlighted by a learned author C.M. Jariwala in his article
"Changing Dimensions of the Indian Environment Law" in the book "Law and
Environment" by P. Leelakrishnan.

The Economic and Special Council of the United Nations passed a
E 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
F
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
G 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 itself.

The protection and improvement of the human environment is a
H major issue which affects the well being of people and economic
K.M.CHINNAPPA INT.N. GODAVARMANTHIRUMALPADv. U.0.1. [PASAYAT,J.J 559
development throughout the world, it is the urgent desire of the A
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 B
tenns, 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 tenns of the size of the problem faced
and the solutions, required; global warning, the destruction of the ozone C
layer, acid rain, deforestation, over populations 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 pollutions,
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". D
" .._. .... .In the words of the White Paper on the Environment. This
Common Inheritance (cm. 1200, 1990) the issues range 'from the street
comer 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 E
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 and
understanding of the structure and content of environmental law,
since it has a large and increasing role to play in environmental F
protection."

Apart from the direct cost to business of complying with stricter
regulatory controls, the potential liabilities for non-compliance are also
increasing. These liabilit'.es fall into five general categories:

(a) Criminal liabilities;
G

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 H
560 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A cases sentences of imprisonment have been imposed (there is normally a
potential person liability for directors and senior managers). Maximum fine
levels have risen in recent years, as have actual levels of fines imposed.

(b) Administrative sanctions:

B 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.
c
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:
D
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 (e) Adverse publicity:
In practice the publicity attracted as a result of infringements of the law
may be as costly as any direct costs.

The tide of judicial considerations in environmental litigation in India
F 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 of Environment and Development-
Our Common Future (1987). To commemorate the tenth anniversary of the r
G Stock~olm Conference, the World Community of States assembled in Nairobi
(May I 0-18, 1982) to review the action taken on to implement Stockhlom
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.

H Progress and pollution go together. As this Court observed in M. C.
K.M. CHINNAPPA INT.N. GODAVARMANTHIRUMALPADv. U.0.1. (PASAYAT, J.] 56}

Mehta and Anr. v. Union ofIndia and Ors., AIR (1987) SC 965, when science A
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 B
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 Stockhlom in June, 1972,
economic and social development was essential for ensuring a favourable
living and working environment for man and for condition on earth that were
necessary for the improvement of the quality of life. C
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 D
serious ecological imbalances introduced by the depredations inflicted on
nature by man. The state to which the ecological imbalance and the consequent
ehvironmental damages 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 E
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 F
of the conversions to be widely accepted and rapidly
implemented .......... Regretfully progress in this direction is proving
disastrously slow." (See International Wildlife Law by Simon Lyster,
Cambridge·Grotius Publications Ltd. I 985 Edn.)

The United National General Assembly adopted on October 29, 1982, G
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.
H
562 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A (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.
B issued a decree that it has a particularly contemporary ring in the matter of
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,
c 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
D 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
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 litigations and Entitlement Kendra
v. State of Uttar Pradesh, AIR (1987) SC 359, natural resources have got to
F 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 depletion of water resources and long-terms planning
must be undertaken to keep up the national wealth. It has always to be ,-
G 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
H pollution is a problem all over the world but is now acute in densely populated
K.M. CHINN APP A IN T.N. GODAVARMANTHIRUMALPADv. U.0.1. [PASAYAT, J.] 563

industrial cities. Our country is no exception to this. Air pollution has further A
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 B
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 C
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 D
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.0.) "Nature never did E
betray. That heart that loved her." (Wordswoth). 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. F
escape from pollution. If industry is necessary evil, pollution surest 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 G
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 H
564 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A 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 Governmen.t. As was observed by
this Court in MC. 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
.B 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. These 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.
c 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.

D It ~annot 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,
E 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
F 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
G 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 Conventions on Biological Diversity dated
5th June, 1992 would be relevant.
H
K.M. CHINNAPPA INT.N.GODAVARMANTHIRUMALPADv. U:O.I. (PASAYAT,J.l 565
The Preamble, inter-alia, contains the following. A
"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 B
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 C
populations of species in their natural surroundings."

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

Article I: Objectives-

The objectives of this Convention to be pursued in accordance with
D
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 E
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 F
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 G
to the contracting party concerned; and

(b) intergrate, 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.
H
566 SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A 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 I0:

(a) identify components of biological diversity important for its
B 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
c ·conservation measures and those which offer the greatest potential
for sustainable use;

(c) indentify 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
D sampling and other techinques; and

(d) maintain and organize, by any mechanism data, derived from
. identification and monitoring activities pursuant to sub-paragraphs
(a), (b) and (c) above.

E Article /4(a): Impact Assessment and Minimizing Adverse Impacts-

Each contracting party, as far as possible and as appropriate,
shall:

(a) introduce appropriate procedures requiring environment impact
F · 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
G 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
H thinking of the present, the future should not be forgotten. We owe a duty
K.M. CH!NNAPPAINT.N. GODAVARMANTHIRUMALPADv. U.0.1. [PASAYAT, J.] 567
to future generations and for a bright today, bleak tomorrow cannot be A
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. B

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 C
the basic objectives are very laudable, it is sad to 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. D

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 b.e highlighted that the
Convention on Biological Diversity has been acceded to by our country and, E
therefore, it has to implement the same. As was obsl"rved 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 F
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 G
and highlighted the immediate need to take steps to control lnenace 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. H
568 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A So far as the effect of Rule 248 of the Concession Rules is concerned,
it is to be noted that Section 2(ii) of the Conservation Act rules out non-forest
activitie's. The Section begins with a non-obstante clause providing that
notwithstanding anything contained in any other law for the. time being in
force inca State, no State Government or other authority shall make, except
B 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
C ·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
D being used for any non forest. purpose. That being so, Rule 248 of the
Concession 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
E 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 ofKarnataka
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
p noted here:

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
G 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
H
K.M. CHINN APP A IN T.N. GODAVARMANTHIRUMALPAD v. U.0.1. [PASAYAT,J.] 569
Research Institute, Nehrunagar, Nagpur (Maharashtra). Land Wildlife A
Institute Dehradun (Uttar Pradesh) After these studies are conducted
and based on the recommendations to be made by these Institute to
· minimize the environmental damage it can be decided whether to allow
the mining and renew the lease or otherwise in favour of Mis.
Kudremukh Iron Ore Company Ltd., in this sensitive area of Western B
Ghat Region.

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 C
the following proposals:

(i) for renewal of lease of 1452.74 hectares of forest land which
is already broken up in favour of Mis. Kudremukh Iron Ore
Company Ltd. for a period of20 year with effect from 25.7.1999.

(ii) to grant temporary working permission in the already broken D
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
E
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 request of already broken up area, F
pending fulfilment 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 Kenqera v. State of UP., AIR (1988) SC 2187 where at page G
220 I 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.
H
570 SUPREME s;ouRT REPORTS (2002] SUPP. 3 S.C.R.

A 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
B 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
C 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
D 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 fulfilment of the recommendations
E 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 recommendations made
about tran.sfer of buildings and other infrastructure to the Forest Department
F 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
G 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 fofwhich the activities can be permitted. Reasons have been highlighted
H to justify the somersault. Whatever be the justification, it was but imperative
K.M. CHINNAPPA IN T.N. GODAVARMAN THIRUMALPADv. U.0.1. [PASAYAT, J.] 571
that due ~pplication of mind should have.been made before taking a particular A
stand and not to change colour like a Chameleon, and that too not infrequently.

Certain proceedings have been initiated again$! 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. B
The Interlocutory application is disposed of accordingly.

NJ. I.A. disposed of.