case law Flashcards
damodar rao
facts - development plan was approved and published in official gazette. space reserved for recreational park. bought by lic before the publication of development plan, then given to tax depart. for building residential apart. state allowed exemption to follow development plan in this case. petitioners are tax payers against hyd munc corporation, tax department, lic and state.
arg by pet - 1. econ bw class have no space for recreation. 2. mnc can’t go against development plan - developing for purpose other than what was said. 3. the hyd munc act sec 112 says that the mnc will have a duty to build parks and recreational parks. its against the duty.
arg by resp - lic bought the land they have a right. 2. lic had acquired the land on public purpose to build residential hence can act contrary to devp plan.
judgement -1. common law- right to property - when bought yes- but subject to statutory limitation. (to lic)
2. when dp was approved, it is a law which unless amended one cant modify it. when the state modifies it in a way to modify the character, it has to give notification to call for objections. also modification had it been in other area designated for residence would have been allowed but here recreation was affected. (to state who modified it.)
3. municipal law is stat law. under which it is the duty to conduct survey of civil needs, practical implementation. and make a developmental plan. mnc under the duty to follow it. rule of law. equally duty bound ( to mnc)
4. public purpose is necessary when justifying unjust powers when it comes to forced transfer. however not that imp when looking into whether lic can override dp or limitations imposed on lic to develop plan. it is more important to justify the transfer of propryt for the purpose.
5. article 51-ag article 21 right to life - clean env. env protection -
ivory traders
facts- amendment act of wildlife protection in 1999 made a complete ban on import of ivories in pursuance of dpsp.
petition 1. 191g unreasonable restriction since it is complete ban on all ivoriies. whereas they only had mamoth ivories which are already fossils. hence no elephants are harmed.
2. article 14 is also affected.
respond - 1986 prior amendment had restricted trade in ivories and given time for ivory traders to sell their stock. it was noticed that though there was ban on elephant ivories and poaching, no ban on imports lead to illegal poachign of elephants and disguised trade.
judgement - unreasonableness in restriction is determined by time. right under 19 is qualified right - subject to what the govt deems fit for the society at large. at that time, elephants weren’t at the brink of restrictions. now they are hence complete ban is also justified.
state is completely justified in absoluting restricting a trade when the wildlife is almost on extinction both because its dangerous to carry the trade and it is under the duty of art 48a.
murali deoro
smoking in public places is found to be infringing on the right to life of the passive smokers, and thus forbidden in public places.
Indian Council for Enviro-legal Action
facts - bichri village. the respondents were a bunch of industries responsible for releasing h1 acids in the water and the sludge without keeping it treated. they said they had nocs.
state - said that they agree and they will bring the change.
respond- they said they had nocs. section 25 water act - they didn’t have to take permission before the amendment. also since they are private bodies , 32 doesn’t lie against them
judgment - regarding article 12 - the court held that given there is so much damage to the water where local population is getting affected, there is not a way that they cant interfere. fundmantal right is affected.
applied ppp and absolute liability, using section 3-5 of env protection act.
vellore case
facts - tanneries in tn were releasing untreated water into the water bodies. open road ways, nearby agricultural waste. etc.
arg pet - agricultural land has become not suitable for cultivation and barred because of this. due to seepage of harmful chemicals in the soil underneath the river, the water has become unsuitable for drinking. - research shows that nearby all ground water wells has shown unsuitable for drinking and women have to go long distance.
respodnent - the stipulated total dissolved solids is not legitimized.
judgement- applied ppp and precautionary principle. held that effluent treatment plan must be established until then they cant run their industries. have to either show that they have established the pollution control units. and the PCB to monitor the same.
loss of ecology ( prevention and payment of compensation) authority under section 3(3) of env protection to create an authority that will implement ppp. pay damages. if cant pay damages closure of industry.
balance between foreign exchange economic development and protection of env.
ganesh wood case
facts - khair trees. their application was earlier approved in 1991 but later the governor only allowed on the basis of first come first serve three industries. there is no enactment but only ipara under himachal pradesh. the petitioners argued under liberalisation policy they have absolute right. further, there are small scale industry, govt only has right to register the application but not approve it.
judgment - 1) inter generational equity - the current generation has no right to take away something which will imperil or damage the safety fo the next generation and upcoming.
2) without enactment execution has power to do whatever it deems fit. it is up to the governor to decide given lack of availability of raw materials, it can only approve limited units.
3) promissory estopped doesn’t apply when public interest is prejudiced in view of how facts have transpired.1992-1993 all factories were given approval, however up to the government. it is important for perservation of forest, ecology, trees and environment, itner generation that they should curtail three industries given lack of khair trees.
mc mehta vs kamalnath
facts- 1) spans motels ltd was bbuildign span club after encroaching forest land in 1990. however the land was later regularized in 1994 by kamal nath who had direct links with the respondent, due to which the extravagant project was initiated.
arg. pe -1) direct links by minist or env and forestry. 2) the land lease agreement that was granted in 1994 required that nothing should be built in flood prone area, no economic activities. no construction to block the relief channel. however the club was built sandwiched between the main channel and relief channel. 3) forest act requires that when private agency acquires forest land, even for the purpose of natural use, or afforestation, they should compensate it with equally afforested land.
judgement - 1) difference between common properties- river, forest land, air, sea shore vs general public proerpyt where the govt can sell the general public property to private entities with consideration.
2) we follow the common law system. in the case of rr company vs illionis it was held by US SC that when the state has the common property, then any conduct fo the state that relocates the property in such a way to restrict the rights of public, or to subject the public with the self interest of private entities.
3) public trust doctrine. three limitations - they may not sell such properties even for compensation, 2. they have to maintain the property. 3) the property must not only be use for public purpose but must be held available for use by general pyblic.
. govt is the trustee of all natural resources which by nature are meant for natural use. and the public is the beneficiary of sea shore, forest, air etc. govt duty bound to protect it.
thus sc cancelled the clearance given to span.
mc mehta gas leak case
facts - accident in shriram factory where the gas was leaked and there was many environment repurcussion and many people were impacted.
issue - whether action lies against shriram factory private entity based on the limitation imposed on state under article 21.
court- didn’t delve into it, but held that since industries falling under schedule 1 of the industries act were practically under the functional control of the state since though the state wouldn’t interfere with the internal matters of the company, but it had the control to regulate, price quality etc. also the industry was engaged in production of goods for public and receiving many grants and funds from the state hence has acquired public character, thus article 21 could be made equally applicable.
2) reyland fletcher rule- iif a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused.. exception - act of god, the victim himself defaults, act of stranger.
Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions.
compensation is deterrent determined on the basis of size of enterprise.
kanpur tanneries case
pil order 1 rule 8 - representative against all the tanneries that affected the gange river.
judgement - section 24 of water act, section 17. and section 18 of the water act. section 3 of the env act. section 9 when any person is releasing affluent he should furnish the information. section 15. penalty
2) financial capacity irrelevant. tanneri cannot exist without treatment plant.
art 48A
state shall endeavour to protect and improve the env and safeguard wildlife and forest
ratlam muncipalities
facts - ratlam people were distrubed by the excretion on the open road by slum dwellers, lack of sanitary facilities causing illness among them. further alcohol wastage in the roads by nearby factory. filed under 133 crpc which grants the magistrte the power to direct orders for removal of public nuisance.
held - lack of finance is not an excuse where the very purpose of the mnc is to ensure health, it cant excuse itself of that fundamental duty by citing finance.
2) 133 is executable against state when public health is in danger.
3) changed the shift from reactive to affirmative action and said court can take affirmative action when needed. decided on 1 scheme for quick redressal.
ap pollution board vs mv nayadu
facts - board denied to give noc for the establishment of plant in the catchment area near the lake because it was under the red category of polluting industry. appealed, and the hc said that just because its red cannot be denied, just because it produces hazardous cant be denied. ordered to give consent with conditions as imposed by the board. appeal
judgment - acknowledged the technicality of science involved in cases like this because one has to consider the env law and impact.
2) principles like pp, and precautionary, were included just because of this because they don’t want due to scientific uncertainty, the establishment of plant leads to irreversible damage.further reverse burden of proof due to this reason precisely, the bop is on the industry to prove that they are not harmful to the environment - since prevention better than cure. it is better to lean in favour of env protection ACC to precautionary principle .
- SC directed the Appellate Authority under the National Environmental Appellate Authority Act, to look into the scientific aspect (headed by retired sc judge with technical members to assist in judgment regarding the impact on environment.
Tirupur Dyeing Factory
facts - industries were dyring factoreis who were releasing effluents in the noyyal river due to which the people around the place cannot get portable drinking water, and not fit for irrigation.
pet - economic benefits by the plants giving jobs to many whose livelihood depend on this.
judgement - precautionary principle, PPP, and sustainable development, enshrined under article 48a, 51 a g,. and has to be read together.
2) even if factories who dispose off hazardous chemicals took reasonable care, they are responsible for paying damages to the people who were affected, underground soil, etc, and restore the env to pollution free.
Karnataka Industrial Areas Development
facts - the respondnets appealled to hc under 226 to stop the appellants from converting the land for industrial purpose or any other purpose since the land was gomal land, used for grazing of animals. thus it would cause ecological disbalance.
district – leave 1 km from the village side for green belt for maintaining the balance.
judgement - I) if the directions given by district court is implemented then the appellant wont be able to acquire any land. thus set aside however gave two directions for future:
1) before acquisition the environmental impact of the development must be considered and ensured that the balance of ecology and env is not affected.
2) the Karnataka PCB to grant clearance for any acquisition of land for development in future.
II) stockholm declaration on human right of environment - court observed that stockholm declaration obliquely refers to the human right to environment and said that both aspects of man’s environment, natural and man made is necessary for his wellbeing.
III) for balance between development and environment rio declaration principle 3 and 4, and indian case for environe (village case) -
IV) for precautionary - vellore, mc mehta
v) for PPP - indian environment, vellore
vi) for public trust - ap board.
narmada bachao andolan
sardar sarovar project over narmada was challenged.
argument by petitioners - 1) the env clearance was given without study of env impact as directed by the ministry.
2) burden of proof is not respodnent to show that there will be no env damage.
3) downstream fisheries will be affected - livilhood impacted.
4) violation of article 21 since env impact studies has not been done and paid heed to,
judgment - 1 regarding precautionary principle - explained the principle and said when the environmental impact is not known, and given the data it is uncertain, then the burden is on the one who is changing the status quo. in this case, since the environment impact was already known then pp doesn’t apply. hence nayadu case wasn’t applied. further sustainable development principle applies, which basically says that when there is development economically with determined env cost, then one must try to balance the ecology and development by mitigating the costs.
- since the submergence effect and env impact was already known, the downstream effect was also known, it doesn’t mean it leads to ecological disaster - it also doesn’t mean when only certain elements of env is unknown that clearance wasn’t required
