Lawyer Training Workshop
Public Interest Environmental Law
Medawala, India
October 17th-21st, 2003
Workbook of Case Materials
This workshop has been funded in part by Grant No. S-ECAPRE-03-GR-026 (DD)
of the United States Bureau of Educational and Cultural Affairs
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Page 1:
TABLE OF CONTENTS
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MOOT COURT RULES
Chapter 1:
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Client letter (A Plea for Help)
Environmental Research Institute Report: Restoration of Environmental Quality of the
Affected Area Surrounding Village B Due to Past Waste Disposal Activities (selected parts)
Chapter 2:
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Legal Materials – Constitutional Provisions
Constitution of Bangladesh (selected provisions)
Constitution of India (selected provisions)
Constitution of Nepal (selected provisions)
Constitution of Pakistan (selected provisions)
Constitution of Sri Lanka (selected provisions)
Chapter 5:
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Hypothetical Case # 3 (Forest Protection)
Client letter (A Plea for Help)
Lease Deed to … June 25, 2000.
Chapter 4:
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Hypothetical Case # 2 (Mineral Resource Extraction)
Client Letter (A Plea for Help)
Mineral Investment Agreement (selected paragraphs)
Comments of the National Academy of Sciences on the Proposed Potash Project
Newspaper article “Exploitation of the Potashpura Potash Deposit”
Chapter 3:
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Hypothetical Case # 1 (Industrial Pollution)
Legal Materials – Statutory Provisions
Bangladesh – Environment Conservation Act, 1995 (selected sections)
Bangladesh – Factories Act, 1965 (selected sections)
Bangladesh – Environment Conservation Rules, 1997 (part relating to Standards for Waste
from Industrial Units or Projects Waste)
India – Environmental (Protection) Act, 1986 (selected sections)
India – The Water (Prevention and Control of Pollution) Act, 1974 (selected sections)
India – Environment Impact Assessment Notification (selected sections)
India – Environment (Protection) Rules, 1986 (selected sections)
India – Hazardous Wastes (Management and Handling) Rules, 1989 (selected sections)
India – The Mines and Minerals (Development and Regulation) Act, 1957 (selected sections)
India – The Mineral Conservation and Development Rules, 1988, 2000 (Selected sections)
India – Forest (Conservation) Act, 1980 with Amendments Made in 1988 (selected sections)
India – The Indian Wildlife (Protection) Act, 1972, amended 1993 (selected sections)
India – The Wild Life (Protection) Amendment Act, 2002 (selected sections)
Nepal – Environment Protection Act, 1997
Nepal – National Parks and Wildlife Conservation Act, 1973 (selected sections)
Pakistan - Pakistan Environmental Protection Act (PEPA), 1997 (selected sections)
Pakistan – National Environmental Quality Standards for Municipal and Liquid Industrial
Effluents
Sri Lanka – National Environmental Act, 1980, 1988 (selected sections)
Sri Lanka – Criminal Procedure Code, (part relating to Public Nuisance)
Sri Lanka – General Standards for Industrial Waste Water (Effluents) Discharged into Inland
Surface Waters (After Treatment)
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Sri Lanka – The Mines and Minerals Act, 1973 (with 1981 and 1992 amendments)
Sri Lanka – Fauna and Flora Protection Ordinance (selected Sections)
Chapter 6:
Legal Materials – Court Judgments
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Bangladesh – Farooque v Government of Bangladesh (decided July 1, 1996) (selected parts)
Bangladesh – Farooque v Government of Bangladesh (decided Juy 25, 1996) (selected parts)
India – M.C. Mehta v.Union of India, WP 12739/1985 (Decided December 20, 1986)
(selected parts)
India – M.C. Mehta v Union of India and Others, WP 3727/1985 (decided September 22,
1987) (selected parts)
India – Subhash Kumar v State of Bihar, (decided January 9, 1991) (selected parts)
India – ICELA v. Union of India, WP 664/1993 (decded April 18, 1996) (selected parts)
India – M.C. Mehta v. Kamal Nath, WP 182/1996 (decided December 13, 1996) (selected
parts)
India – A.P. Pollution Control Board v. Nayudu, (decided January 27, 1999) (selected parts)
India – M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Others (decided July 26, 1999)
(selected parts)
India – T.N. Godavarman Thirumalpad v Union of India and Others (decided October 30,
2002)
Nepal -- LEADERS v. Godavari Marble Industries and Others (decided October 31, 1995)
(selected parts)
Pakistan -- Zia v. WAPDA, (decided 1994) (selected parts)
Pakistan -- West Pakistan Salt Miners Labour Union v. the Director, Industries and Mineral
Development (decided July 12, 1994) (selected parts)
Sri Lanka – Environmental Foundation Limited vs. Ratnasiri Wickramanayake, (decided
December 17, 1996) (selected parts)
Sri Lanka – Jayawardena v. Akmeemana Pradeshiya Sabha, (decided September 24, 1997)
(selected parts)
U.S. – Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892) (selected parts)
U.S. – Sierra Club v. Morton, 405 U.S. 727 (1972) (selected parts)
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Lawyer Training Workshop
Public Interest Environmenta Law
Moot Court Rules
1.
REGISTRATION PROCEDURE
All the young lawyers participating in the workshop are required to take part in the Moot court
exercise.
2.
TEAM COMPOSITION
2.1.
The participants at the workshop will be divided into three teams. Each team shall consist of five/six
members. The organisers will constitute the three teams.
2.2.
All members of a team may present oral arguments. The Team must decide how to divide the
allocated time. Some members of the team may choose not to present oral arguments. However, at
least three members of the team MUST present oral arguments on behalf of the team. All members of
the team are required to actively participate in drafting the pleadings and written submissions and in
preparing for the oral arguments.
3.
MOOT COURT DATES
The Moot Court will be held on the date and time set out in the workshop programme. The notified
schedule of the Court will be strictly applied.
4.
MOOT COURT PROCEDURE
4.1
The written pleadings, written submissions and oral arguments shall be based on the three case
material provided in the workbook prepared for the workshop. Each team will be allocated a case.
4.2.
All three team are required to prepare and present to the Moot Court:-
4.2.3.
Pleading (a document initiating court proceedings such as a Plaint, Complaint, Petition, Information
etc.);
4.2.4.
Written Submission outlining the factual and legal arguments relied on; and oral arguments in support
of their case.
4.3.
All three teams will act as lawyers for the party initiating proceedings in the Moot Court (i.e.
Plaintiff/Petitioner/Complainant/Informant etc.). Senior Counsel and Resource Persons attending the
workshop will act as lawyers for the party called into court as a party to the proceedings
(defendant/Respondent/Accused/etc.) The lawyers for the party called into court will also prepare in
sketch form a Pleading and Written Submission replying to those of each team.
4.4.
The Moot Court shall be presided over by a bench of two to five Judges. The Judges will be invited
from among sitting and retired judges. Senior lawyers and resource persons may also be invited to be
a Judge. The organisers will do their best to constitute benches that reflect the different jurisdictions
of the region. The bench for each case may be different.
4.5.
Each team shall have 45 minutes each, wherein each speaker shall have only 20 minutes each and 5
minutes shall be reserved for rebuttal by each team. One speaker or both speakers dividing the 5
minutes’ time between them may present the rebuttal for either team.
4.6.
The bench constituted for each case is not required to (but may, if they wish to) pronounce a
judgement declaring an outcome of the moot. The participating judges will however, express their
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opinions on the strength/weaknesses of the pleadings, written submissions and oral arguments of each
team. The judges may also make suggestions that they feel may help participants in improving their
advocacy skills.
5.
CODE OF CONDUCT & LANGUAGE OF THE COURT
5.1.
Participants are required to conduct themselves within the highest standards of ethics applicable to
professional conduct in their respective jurisdictions.
5.2.
The Dress Code shall be dark suit or formal dark shalwar or national dress for men and light unicoloured saree or shalwar or long gown for women. Optionally participants may wear the professional
dress prescribed for court appearances in their respective jurisdictions.
5.3.
The proceedings of the Moot Court shall be in English.
6.
PLEADINGS & WRITTEN SUBMISSIONS
6.1.
The Pleading and Written Submission should reach the Registrar by the deadline specified on the
workshop programme.
6.2.
Each team will be given access to a computer. The Pleading and Written Submission must be printed
using Times New Roman font of 11-14 point font size.
6.3.
Once the pleading and written submission is submitted the teams will not be allowed to make any
amendments to the same.
6.4.
The Pleading and Written Submission should be printed only on one side of A4 size paper with 1 inch
margin on all sides and numbered on the bottom right side of the page.
6.5.
The Pleading should not exceed 4 pages. The Written Submission should not exceed 4 pages.
6.6.
The Pleading (maximum 4 pages) should contain:
6.6.1.
A Caption setting out the name of the Court, details of the parties, the date of filing, an indication of
the nature of the proceedings and an appropriate salutation to the Court.
6.6.2.
An indication of the type of pleading (i.e. Plaint/Petition/ etc)
6.6.3.
Statement of jurisdiction.
6.6.4.
A statement of relevant facts. Where appropriate references to documents relied on may be made
6.6.5. A Statement of laws relied on, only where appropriate.
6.6.6.
Prayer or request for relief.
6.7.
The Written Submission (maximum 4 pages) should contain:
6.7.1.
6.7.2.
6.7.3.
Statement of issues of fact and law.
Summary of arguments relied on.
List of legislation and precedents relied on.
6.8.
There shall be no Copyrights in the pleadings and Written Submissions and all authors waive those
rights by participation in the Moot.
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HYPOTHETICAL CASE #1
A PLEA FOR HELP
October 17, 2003
XYZ
Advocate, High Court of ---Singh & Associates
Dear Sir or Madam:
I am writing to let you know of a problem afflicting us. We live in the village of B___. For many decades,
our families have used our lands for grazing cattle, growing crops and fruit trees, and living in harmony with
nature.
Several years ago, a Company set up a factory that, for a long period, manufactured dyes and dye
intermediates. The Company dumped solid waste from the factory into six places nearby its premises. It
allowed effluent from the factory to run out over the land. Later, the Company set up factories that
manufacture
The Company is creating havoc with our lives. Wastes from the Company’s factories percolated into our
groundwater, making it highly acidic and dark coloured. About 80 wells have totally become polluted and
every week a few new wells down the aquifer start showing signs of pollution. About 20,000 of us are being
forced to drink highly contaminated water.
In January, we demonstrated before the Collector and gave him a representation /memorandum about the
serious situation being caused due to water pollution. Also in January, water samples were taken for
tests/analysis by the University of R____. It was found that the runoff was highly acidic (pH 2.3 to 2.5) and
the run off was found to be extremely high in total dissolved solids (18,500 – 24,800 mg/1).
In February, we demonstrated at the gate of the factory and presented a memoranda to the Prime Minister and
Chief Minister during their visit to our district.
In March, the national press highlighted the serious problems of air and water pollution in B___, but to no
avail. An article under the caption ‘Pollution Problems in B____’ appeared, stating that our village has
become a victim of serious pollution: thousands of fruit bearing trees have died and hundreds of cattle have
perished after drinking polluted water.
In response to our inquiries, the Minister for the Environment and Forests admits that effluents from the
Company’s plant contains H-acid and large quantities of organic pollutants that can affect the vegetation. The
State Environmental Agency has refused to give its consent to the Company that is making H-acid and
recommendation has been to the State Government to issue directions for the closure of the factories. No steps
to stop pollution have been taken by the Government or the Industry.
In June, the Central Government wrote a letter to the local Department of Environment in which it was stated
to take immediate action to have as much cleaning as possible of the soil and sub-soil material in the factory
area. Also in June, we sent a letter to the Central and State Governments objecting to the siting of the factory.
No answer has been received to this time.
A fact-finding team from the Environmental Research Institute came to visit us earlier this year. We are
providing under this cover a copy of their report that describes the circumstances we are facing.
We are suffering badly. Pollution keeps spreading. About 200 cattle have died. Hundreds of fruit bearing
trees have withered and crops have seriously affected. We want to be made whole. Could you please help us!
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Environmental Research Institute Report
“Restoration of Environmental Quality of the Affected Area Surrounding Village B____ Due to past
Waste Disposal Activities”
… Solid wastes generated from H-acid manufacturing process are gypsum sludge produced during the
neutralisation of acidic solution with lime after nitration stage (around 6 tonnes/tone of H-acid manufactured)
and iron sludge produced during the reduction stage (around 0.5 tonnes/tonne of H-acid manufactured).
Gypsum sludge contains mostly calcium sulphate along with sodium salts and organics. Iron sludge constitutes
untreated iron powder, besides ferric salts and organics.
It is estimated that, for each tonne of H-acid manufacture, about 20 cubic meters of highly corrosive
wastewater was generated as mother liquor, besides the generation of around 2 cubic meters of wash water.
The mother liquor is characterised by low pH (around 2.0) and high concentration of total dissolved solids (80280 g/L). High COD of the waste water (90 g/L) could be attributed to organics formed during various stages
of manufacture. These include naphthalene trisulphonic acid, nitro naphthalene sulphonic acid, Koch acid and
H-acid, besides several other intermediates.
The company is generated 8250 cubic meters of wastewater and 375 tonnes of sludge per year. The company
has handled these wastes in the following manner
- From the outset, the Company deposited its sludge into six nearby pits.
- A majority of the sludge brought back from disposal sites located outside the factory was transferred inside a
covered shed.
- The sludge lying in the plant premises was entombed in an underground pit. It may be mentioned that only
720 tonnes of sludge out of an estimated quantity of 2440 tonnes could be entombed as the capacity of the
underground tanks provided by the industry for the purpose was only to that extent.
- The remaining sludge and sludge mixed soil were, however, present in the plant premises as these could not
be transferred into underground tanks. It has also been observed that only sludge above the soil was removed
from the six sites and transferred to the plant site. Subsurface soil of these sites appears to have been
contaminated as the soil has reddish colour akin to that of the sludge.
- The Company also operates a fertilizer plant and a sulphuric acid plant located near the factory where H-acid
was earlier manufactured. Acidic wastewater (around pH 1.0) from these units was flowing over the
abandoned dumpsites. This leaches the sludge-soil mixture at the six dumpsites and the contaminated water
flows by gravity towards east and finds its way into a nallah flowing through the compound and conveys the
contaminated water to an irrigation canal.
Field surveys showed that no crops were coming in the fields particularly in low lying areas. On some elevated
areas, crops like jowar, maize were growing; however the growth and yield were very poor. Even trees like
eucalyptus planted in contaminated fields show leaf burning and stunted growth. Many old trees which were
badly affected due to contamination are still growing under stress conditions as a result of soil contamination.
The topsoils at the old dump sites outside the plant premises are still contaminated and require
decontamination before the land is used for other purposes.
The entire contaminated area comprising of 350 ha of contaminated land and six abandoned dump sites outside
the industrial premises has been found to be ecologically fragile due to reckless past disposal activities
practiced by the Company.
It was also observed that the Company has not provided adequate effluent treatment facilities and the
wastewaters (pH, 1.5) from the existing plants (sulphuric acid, fertilizer, and oil extraction) are being
discharged, without treatment, on land within the plant premises. This indiscriminate and willful disposal
activity is further aggravating the contamination problem in the area. Acidic effluent leaches the pollutants
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from the dumped sludge and the contaminated soil and facilitates their penetration through the ground and
thereby increasing the concentration of sulphates and dissolved solids in groundwater.
The Company has shown scant respect for the environment. Not only this, the management continues
industrial activity producing obnoxious waste waters and dumping the same without any treatment,
contaminating land and ground water without any concern for ecology and public health. It is necessary that
the provisions of relevant legislations are imposed on the industry to avoid environmental damage and harm to
public welfare.
Compensation should be paid under two heads, viz., (a) for the losses due to damage and (b) towards the cost
of restoration of environmental quality. The cost of damage to be disbursed to the affected villagers is
estimated at Rs. 342.8 lakhs and remediation of impacted well waters and soil at Rs. 3738.5 lakhs. This cost
needs to be borne by the management of the industry.
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HYPOTHETICAL CASE #1
- A PLEA FOR HELP June 25, 2003
XYZ
Attorney-at-Law
Jalabhoomi Courts Complex.
Dear Sir or Madam:
I am writing with a very urgent request for help for our local community. We live in the village of Potashpura,
where our families have for many generations been growing bountiful crops and tending livestock, thanks in
large part to fact that our area is blessed with a rich deposit of potash. For many generations, our community
has used small-scale mining techniques in cooperation with local companies to collect and distribute this
valuable fertilizer to villages all around our country. Our presence on this land dates back many thousands of
years, as can be seen by the great archaeological sites that exist in our area, including the ancient water and
irrigation works of Jalabhoomi. But now, these resources are threatened by a huge proposed mining project,
pushed by our government and the largest potash mining company in the world, Global Potash Extraction, Inc.
(GPE). GPE is 90% owned by foreign companies.
Unfortunately, we know very little about the project, other than what we have gathered from newspaper
articles and comments by esteemed scientific organizations in our country. The company and the government
have already signed a Mineral Investment Agreement. Under the agreement, we understand that the
Government may even acquire our land and throw us off of it, if we do not cooperate with the company to
achieve its objectives. A large processing factory that will emit highly polluting substances is also planned for
construction in our area.
The initial project area will be approximately 56 sq. kilometers, but the exact limits of the final area are not
even clear! We have read estimates that the project could displace more than 12,000 people from more than
20 neighboring villages.
Furthermore, no studies have been done to evaluate the effects of the project on our environment and our way
of life. All that we know is that the mining and processing of the products will be an operation of
unprecedented magnitude in our country, and we are greatly concerned that the potential environmental and
social impact could be terrible.
The loss and damage suffered by our community and the people of our country if our land and resources are
lost will be enormous. And for what purpose? The company plans to exhaust the entire proven reserve of 25
million metric tons in less than 30 years, and we have learned that the vast majority of the potash extracted
from the proposed project will be shipped abroad. After that resource is gone, where will our country get its
potash? We will surely have to import our requirements. There are additional estimated potash reserves in our
area, but no one knows if they really exist. Current mining operations in the area extract only about 40,000
tons per year. It has been estimated that at this rate of extraction, our country will have potash for a very long
time, perhaps a thousand years. We have also learned that bids from other companies to mine the potash
deposits less intensively than in GPE’s proposal were rejected by the government.
The mineral wealth of our country is being sold for a quick economic gain, of which we and the people of our
country will surely see little!
Our protests on this project have generated media attention and the project itself has become a matter of public
controversy, but the project proceeds, and we are desperate to do something to stop this project. You are our
last hope. Can you please help us?
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Mineral Investment Agreement
(Selected paragraphs)
This MINERAL INVESTMENT AGREEMENT (this “Agreement”) is made and entered into on this 15th day
of March 2001, by and between the Government, represented herein by the Secretary to the Ministry of
Industry and Development acting with the approval and approbation of the Cabinet of Ministers granted by
virtue of the powers vested in them by the Constitution, and Global Potash Extraction, Inc., a private company,
(the “Company”). Domestic Potash Limited, a domestic company, which is wholly owned by the
Government, also joins in the execution of this Agreement and hereby expressed its agreement to its terms and
to be bound thereby.
INTRODUCTION
The mineral resources contained in this Nation constitute a part of national wealth.
The Government seeks to advance the economic development of the people of this Nation and to that end
desires to encourage and promote the rational exploration and development of the potash mineral resources of
the Nation.
The Government, through the operation of mining enterprises, seeks to receive fair value for its resources and
to foster processing and value added, regional development, and employment opportunities, and local
business. It also seeks transfer of skills, know-how, and technology to nationals and acquisition of basic data
regarding the country’s mineral resources.
In the process of developing mineral resources, the Government gives high priority to protection of the
environment and avoidance of waste and misuse of its resources.
The Company has access to the skills, information, knowledge, experience, and proven technical and financial
capability and other resources necessary to undertake a program of exploration, development, construction,
mining, fertilizer plant development, and marketing of the potash resources.
The Company is ready and willing to proceed in these undertakings. And to assume the risks inherent therein,
in exchange for the rights and benefits herein provided, all pursuant to the terms and conditions set forth in this
Agreement.
The Government and the Company are willing to cooperate in developing potash resources with respect to the
Contract Area on the basis of the laws and regulations of this country and this Agreement.
In consideration of the foregoing and the mutual promises and conditions set forth in this Agreement, the
parties agree as follows:
ARTICLE II - RIGHTS AND RESPONSIBILITIES OF THE COMPANY
2.1 Basic Statement of Rights.
The Company shall have all of the rights and privileges provided for in this Agreement and shall perform the
work and obligation imposed on it by this Agreement, including the investment of capital, and the payment of
royalties, taxes, and other fees as described herein. Without limitation on the other rights conferred on the
Company by this Agreement, the Company shall have, and the Government hereby grants to the Company,
subject to the other terms and conditions specified in this Agreement, the sole and exclusive right: (a) to search
for and explore for potash and other minerals in the Exploration Area under Exploration Licenses issued or to
be issued to Domestic Potash or to the Company; (b) to conduct pilot or test operations as appropriate at any
location within the Contract Area (without limiting the Company’s option of conducting such pilot or test
operations entirely or partially at other locations); (c) to develop and mine under Mining Licenses any potash
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deposit (including potash minerals and Associated Minerals) found in the Exploration Area; (d) to construct
the Enterprise facilities; (e) to process, store, and transport by any means all potash minerals and Associated
Minerals which are extracted from the Mining Area under Mining Licenses; (f) to manufacture Products from
such minerals; (g) to market, store, sell, transport, and dispose of Products and Associated Minerals inside and
outside of this country; and (h) to perform all other operations and activities which may be necessary or
convenient in connection therewith, with due observance of this Agreement. Notwithstanding anything to the
contrary recited in this Section 2.1, the processing and marketing of Associated Minerals shall be subject to all
Applicable Law.
2.4 Additions to Exploration or Mining Areas; Provisions With Respect to Land Leases and Other Required
Surface Use Agreements.
Notwithstanding the existence of this Agreement and the fact that the Company will control a significant area
of land for the exploration for and possible development of potash mineral deposits as a result of this
Agreement, the Company shall remain eligible to apply for and obtain Exploration and Mining Licenses on
lands outside the Exploration Area, through application, assignment, or other contractual arrangements. In the
event the Company does obtain Exploration and/or Mining Licenses or rights to an assignment of Exploration
and/or Mining Licenses, covering lands within the Buffer Area, such lands shall be added to the Exploration
Area and treated in all respects as part of the Exploration Area (and Mining Area, if a Development Plan is
approved) and as licenses which are subject to the provisions of this Agreement.
Promptly following the date of this Agreement the Government shall use its best efforts to facilitate the
entering into of the following in order to secure for the Company all of the rights for surface use of land which
are necessary for the conduct of the Company’s operations contemplated by this Agreement: (a) a preferential
lease between the Company and the appropriate Government authority with respect to State Land within the
Exploration Area, and (b) a lease between the Company and the Urban Development Authority with respect to
the Processing Area.
2.5 Modification or Replacement of the Processing Area.
The parties hereto anticipate at the time of the signing of this Agreement that a significant portion of the
activities and operations described in Items (b), (d), (e), (f), and (g) of Section 2.1 of this Agreement will be
conducted in the Processing Area. The parties also acknowledge that a final decision regarding the suitability
of this particular area for the conduct of such activities and operations cannot be made until the conclusion of
the Feasibility Study. Accordingly, in the event it is determined by the Company in its Feasibility Study that
these particular lands, or portions of them, are not suitable and the Company requests the assistance of the
Government, the Government will use its best efforts, in cooperation with the Company, to locate lands which
are suitable to replace the lands which have been identified as unsuitable. If substitute lands are located
pursuant to the above described procedure which the Government and the Company mutually agree are
suitable and the Company acquires rights with respect thereto, the parties shall, subject to Applicable Law,
enter into an amendment to this Agreement designating such lands as part of or a replacement for (in whole or
in part) the originally designated Processing Area lands, and the Company shall have the same rights with
respect to the substitute lands as were applicable to the originally designated Processing Area lands.
2.8 Protection of the Environment.
(a) The Company shall comply with Applicable Law relating to environmental protection, including but not
limited to the Environmental Act as amended from time to time, and the regulations gazetted thereunder. (b)
The Company, as the holder of an Industrial Mining License, shall conduct its Mining, Processing, and other
operations in the manner required of such license holders, to minimize harm to the Environment in accordance
with Article XXV hereof and shall utilize recognized modern mining industry practices to protect natural
resources against unnecessary damage, to minimize Pollution and harmful emissions into the Environment and
to dispose of Waste materials, all in a manner consistent with good Waste disposal practices.
2.9 Damage to the Environment.
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The Company shall be responsible for all damage caused in violation of Applicable Law and resulting from its
operations which are harmful to the Environment. The Company shall manage, monitor, and progressively
control and correct all adverse effects of mining operation with respect to water pollution, air pollution, soil
contamination, and all other factors that may tend to degrade and/or endanger the environment in conformity
with the Applicable Law. The Company shall also be responsible for preservation and restoration of the
natural Environment within which the Company operates in accordance with Applicable Law and shall take no
actions which may block or limit the further development of the resources in the area outside the Mining Area
and the Processing Area.
ARTICLE VII - FEASIBILITY STUDY PERIOD
7.1 Notification and Issuance of Authorization.
If the Company elects to proceed with a Feasibility Study, and provides written notice of such election to the
Secretary as specified in Section 6.5, the Secretary shall provide all reasonable assistance to the Company in
order for it to obtain without delay any licenses, permits, or authorizations required for the Company to
proceed with and complete the Feasibility Study and to conduct all other activities contemplated in this Article
7.1 as well as any additional Exploration which it may decide to perform through the end of the Feasibility
Study Period. If the Company so requests, Domestic Potash undertakes that it shall, through the Company as
its duly authorized attorney, submit an application for the renewal of such Exploration Licenses as the
Company shall specify, provided that the Company furnishes all information, reports, plans and other
particulars required for the purpose of obtaining such renewals.
7.2 Commencement of Feasibility Study.
As soon as the Company provides notification to the Secretary of its intent to conduct the Feasibility Study and
obtains any required licenses or authorizations which are required, the Company shall commence such
Feasibility Study to determine the feasibility of commercially developing the potash deposit or deposits
identified by the Company. During the Feasibility Study Period, the Company shall complete the Feasibility
Study and select and delineate in such Feasibility Study the Mining, Processing, and Project Areas which it
requires for its operations. The Feasibility Study may be carried out by the Company in consultation with
appropriately qualified consultants and advisors selected by the Company and in the case of the environmental
section(s), they shall be subject to approval by the Government as provided in Section 7.6 below.
7.6 Environmental Section of Report.
The Feasibility Study Report shall include a report of the results of environmental impact studies relating to
the effects of the operation of the Enterprise on the Environment, which shall be prepared in accordance with
the requirements set out in Article XXV hereof. The environmental section(s) of the Feasibility Study Report
shall be conducted by an internationally recognized independent environmental consulting firm selected by the
Company and approved by the Government.
7.7 Objections/Approval.
In considering the Feasibility Study Report, the Development Plan, and the Company’s application for
approval to construct and operate the Enterprise facilities, the Secretary shall make known to the Company any
objections or suggestions which he/she may have with respect thereto. The Government reserves the right to
withhold its approval thereof if and only if the Secretary determines that implementation of the Development
Plan together with any modifications thereof which may be reflected in the Company’s application to construct
and operate: (a) will not result in efficient development of the mineral resource, (b) is likely to result in
disproportionately and unreasonably damaging the surrounding environment, (c) is likely to unreasonably limit
the further development potential of the mineral resources within the Mining Area, (d) is likely to have a
material adverse affect on the environmental quality in the area which is not offset by the potential benefits of
the Project or by mitigating measures incorporated into the Development Plan. The decision shall not be
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unreasonably delayed and, in light of the significant expenditure of time, effort, and money which will have
been undertaken by the Company, approval shall be granted in the absence of significant and overriding
justification. If the Secretary has any objections or suggestions, he shall promptly communicate the same in
writing to the Company including all relevant details of such objections and suggestions and at the same time
provide the specific requirements for the Company to secure approval. The Company shall in good faith seek
to incorporate such suggestions and/or objections into the Feasibility Study Report and/or Development Plan
(whichever is appropriate). In the event the Company fails to do so, the Secretary and the Company shall
consult in good faith with a view to reaching a mutually acceptable resolution. If, after a period of three
months from the date of notification of any objection or suggestion by the Secretary, there has been no
resolution of the matter, then the Company may refer to arbitration under Article XX the issue of whether or
not the Secretary had substantial cause for withholding approval of the Feasibility Study Report, Development
Plan, and application to construct and operate, and if substantial cause is determined not to have existed, the
Secretary shall promptly issue his or her approval of such Report, Plan, and application. In no event shall the
Company be obligated to construct and operate any facilities other than those described in the Development
Plan which it has submitted (including modifications thereto).
7.9 Confidentiality.
Subject to the provisions of Section 5.5 hereof, all reports, data, and information supplied to the Government
under this Article VII shall be treated as confidential; provided, however, that if this Agreement is terminated
pursuant to Article XXI hereof, such reports and information shall become the property of the Government and
may be used by the Government in such manner as it thinks fit.
ARTICLE XVII - ENABLING PROVISIONS
17.3 Relocation of Local Inhabitants and Minimizing Certain Impacts.
(a) Procedure for Relocation.
The Government and the Company acknowledge that if Mining is conducted within the portion of the
Exploration Area located south of the main canal which flows through the Exploration Area, the occupants of
such land may be directly affected. To the extent that this area is included within the Mining Area and
constitutes part of the area to be mined under the Company’s Development Plan which is approved by the
Government in accordance with the procedures set forth in Article VII, and the Company determines that it is
necessary to relocate such occupants in order to accommodate Mining such area, then the Company will pay
the costs of such relocations and the Government will use its best efforts to facilitate the relocation of any
inhabitants of such land as requested by the Company in a manner which does not create an undue financial
burden on the Company or delay the Company’s development and operation of the Mining Area. The
Government will also use its best efforts to coordinate with local authorities and any other Government
authority having jurisdiction over such lands in order to implement such relocations in an orderly and efficient
manner, to minimize or eliminate the settlement within this area, and to cause the removal at minimal cost to
the Company of squatters having no legal or possessory rights. In connection with the foregoing, the
Government shall use all reasonable efforts to minimize or eliminate the settlement within this area of new
inhabitants during the term of this Agreement.
As to other parts of the Mining Area where the Company determines that resettlement is necessary, the
Government and the Company acknowledge that only small numbers of persons inhabit such lands. As to
these other lands where relocation is determined to be necessary by the Company, the same relocation
provisions as set forth above will apply and the Government will utilize its best efforts to minimize or
eliminate any settlement of persons or families on such other lands during the term of this agreement.
In the event that the Company wishes to relocate persons in occupation or possession of private land and not
within the scope of the relocation specifically provided for above in this Section 17.3, such relocation shall be
effected on terms to be agreed between the Company and the owners of such private land.
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(b) Remedying Adverse Impacts on Irrigation and Water Supply.
The Company shall take all care and caution to minimize any impacts on irrigation or the availability of water
in the vicinity of its Mining activities and shall take remedial measures as reasonably necessary.
25.2 Environmental Study.
The Company shall include in the Feasibility Study an environmental study in relation to all Applicable Law,
and shall also identify and analyze as part of the Feasibility Study the potential impact of its operations on
land, water, air, biological resources, and social, economic, culture, and public health. The environmental
study will also outline measures which the Company intends to use to mitigate adverse environmental impacts
of the Enterprise, including without limitation disposal of overburden and tailings and control of rehabilitating
the Contract Area and any Project Areas at the termination of this Agreement. The Feasibility Study shall
provide an estimate of the cost of such restoration and rehabilitation. The Feasibility Study shall also include
procedures and schedules relating to the management, rehabilitation, and restoration of all Contract Areas and
Project Areas in relation to all adverse effects on the environment as are identified in the Feasibility Study.
The study will also provide an estimate of the cost of such activities.
25.3 Environmental Restoration and the Environmental Restoration Escrow Account.
(a)
The Company shall be responsible for restoring the lands on which the Enterprise
activities are conducted and the environmental clean-up relating to the Enterprise in accordance with
Applicable Law, and shall bear all costs associated therewith.
(b)
In order to assure that sufficient funding is readily available to meet the full cost of environmental
restoration by the time mining and processing operations cease, commencing with the tenth year following the
commencement of Commercial Production, the Company shall deposit on or before March 31 of each year
into an interest bearing escrow account five percent (5%) of the Company’s net income for the previous year,
until such time as an amount has been deposited which is equal to the then currently estimated full cost of
environmental restoration of the lands on which the Enterprise facilities are located in the Contract Area and
the Project Area and any other lands affected by the operations of the Enterprise. The estimated costs of such
restoration work shall be proposed and updated each year by the Company following the commencement of
Commercial Production and shall be subject to audit by the Government. Withdrawals from the above
described escrow account shall only be made for reclamation and restoration expenditures by the Company
and to reduce account balances in excess of amounts required for reclamation which excesses must be
mutually agreed upon between the Government and the Company. The Government and the Company shall
mutually agree, prior to or simultaneously with the establishment of such account, on the written instructions
to be provided to the escrow agent to assure that there are no improper applications of funds. Such written
instruction to the escrow agent shall include provisions to the effect that if following termination of this
Agreement the Company has failed to comply with its obligations hereunder with respect to reclamation and
restoration, the Government shall be authorized to withdraw funds from such account to be utilized solely for
such reclamation and restoration. The Government shall have the right to review and approve the requests of
the Company for the release of funds from such account for reclamation and restoration which approval shall
not be unreasonably withheld or delayed.
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Comments of the National Academy of Sciences
(Selected Paragraphs)
The Government’s proposals and views are given below followed by NAS’ comments under each section.
They are based on information provided by the Minister of Industry and Development.
1.
Size and Quality of deposits, Rate of Exploitation
Size of deposit: proven reserve 25 million metric tons, inferred reserve 35 million metric tons.
Rate of exploitation: 3.6 million metric tons to be mined by the Joint Venture Company for direct export as
rock during the initial 12 year period of the project and a further 22 million metric tons to be mined for local
manufacture of potash during the balance of the 30 year period of the project. The total mined under the
project will be 26 million metric tons.
NAS’ comment: The Committee appointed by the President (composed of five scientists and two economists)
recommended that “a more comprehensive geological reserve evaluation be undertaken in the light of recent
research findings so that government can make a final decision on the rate of exploitation of such reserves.
The decision on the rate of exploitation should be made taking into account the important concerns about the
use of resources in a manner that future generations can also benefit.” No such survey has been done yet. The
size of the deposit should determine exploitation of it. If, after the 18 month exploratory phase of the project
(which is said to include a detailed geological survey), it is found that the inferred reserves are considerably
less than originally envisaged, there is no provision in the project to slow down the exploitation rate, and
almost all of the national reserves could very well be exhausted at the end of the 30 years. In view of the
speculative nature of both size and quality of the deposits, provision should be made under the project
agreement for re-negotiating the rates of exploitation, royalties, and other monetary benefits to the Nation after
completion of the exploratory phase. Our geologists and other scientists should be closely involved in the
exploratory phase. Similar provision has been made under the comprehensive environmental feasibility study
phase of the project. (If the environment feasibility study proves a serious adverse impact on the environment,
the government has the option of not proceeding with the project.) If the investing company does not agree to
this condition, it is probably because they perceive that the results of the exploratory phase are likely to be
against their interests.
2.
Locally manufactured Fertilizer
Potash has been selected as the best value added fertilizer for production of 600,000 metric tons per annum for
maximum utilization of this national resource which has remained under-utilized since its discovery in 1971.
NAS’ Comment: Assuming that the ore reserves are as high as envisaged, potash is a good value added
product for the export market. However the high technology required to produce high grade potash will
include setting up manufacturing plants, which together with the technology involved can lead to serious
environmental hazards including the production of highly toxic waste by-products and release of toxic
pollutants to water bodies and the atmosphere.
3.
Environmental and hydrological problems
The proposed Project Agreement appears to take appropriate precautions pertaining to these problems under
the pre-project exploratory and feasibility study phases of the project (33 months). The Agreement empowers
the Government to secure from the project company a bond up to the value of US $500,000 to cover
foreseeable environment damage. Even after the project begins, if at any stage the project company fails to
remedy severe environmental damage which may occur the Government has the right to suspend operations.
NAS’ Comment: It should be expressly stated in the Agreement that the mining operations and the processing
should be carried out in accordance with the environment standards set by the Government of this Nation. The
Agreement should also specifically state that the ecological restoration of the areas affected by the mining
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must be carried out by the prospector at his own cost progressively during the period of mining operations and
as directed by the Government of this Nation. The Agreement must be explicit that failure to observe these
environmental protection measures could result in termination of the project. The Bond for securing
environmental protection should be increased to US $1,000,000.
4.
Displacement of Settlers
The project company, on the basis of results of the exploratory studies, will make every attempt to avoid
displacement of settlers. Those displaced will have to be adequately compensated by the project company.
There will be no upper limit on such compensation. All occupiers displaced will be compensated irrespective
of their legal title.
NAS’ comment: As in the case of environment protection, under the Agreement Government should secure a
bond from the project company for a value of at least US $1,000,000 to meet costs of resettlement and
compensation to displaced settlers.
5.
Economic Considerations
Investment value: US $ 425 million cash by foreign project company and in-kind investment of 25.1 million
metric tons of potash by domestic sources valued at US $ 1122.3 million (at US $43 per metric ton of mined
potash)
Direct monetary benefits to the Nation:
- Royalty of 5.5% of International price on all potash mined both for export (3.6 million metric tons) and used
locally for potash manufacture (22.5 million metric tons): US $ 37 million over 30 year period.
- Dividend on 10% free equity over 30-year period: US $70 million.
Total direct benefits = US $ 107 million
Indirect monetary benefits:
- 5% tax on first 12 years and 15% tax thereafter: US $ 74 million
- Defense levy: US $1.3 million
- Ports Authority earnings: US $ 137 million.
- Gross foreign exchange revenue from all exports of potash: US $ 152 million,
- Savings on fertilizer subsidy payments to farmers for urea and high grade potash by use of
- Locally produced potash: US $ 7 million.
Total indirect monetary benefits = US $ 372 million
Social and infra-structural development benefits
- 1,000 people employed
- Local farmers will get potash at 5% below f o b value
- Building and improvement of rail tracks from mine to port, constructing new roads, constructing docking,
shipping, and port facilities at the port, improving telecommunication and airport facilities.
NAS’ Comment: The total value of 26.1 million metric tons of potash mined over the 30-year period amounts
to US $1122.3 million, but the direct income is a low US $ 107 million while the total direct plus indirect
income is US $ 478.3 million over the same period. The discounted value over 30 years would be
considerably lower. The investment of US $ 425 million by the Project Company does not come into the
Government’s coffers. This seems to be a very poor deal, considering that out of a total investment (cash plus
in-kind) of US $ 1547.3 million the Nation’s share is over 72%. The value of the resource of mined potash
foregone would be US $ 1122.3 million, which is very much more than the benefits. Moreover, according to
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the Director General of the BOI, the capital costs of mining and crushing equipment and infrastructure
development such as rail track for transport of the mined potash incurred by the Project Company is only about
US $ 43 million. On a cost-benefit basis therefore the Nation is getting a very raw deal, leaving aside the
external costs of the environment damage the project would cause.
RECOMMENDATIONS
1.
Give highest priority to the comprehensive exploratory survey of size and quality of rock potash
reserves which should ideally be done independently by the Mines and Geology Bureau in collaboration with
our other scientists, if necessary with aid from the ADB and/or the UN Revolving Fund for geological
exploration. This may also be done in collaboration with the Project Company in the exploratory phase of the
project.
2.
Final decisions on rate of exploitation, on value-added fertilizers to be locally manufactured and on
monetary and other economic benefits to the Nation should be based on the results of the comprehensive
geological survey.
3.
Call for reports from other countries on project company’s credibility pertaining to environment
protection.
4.
Increase security bond on environment protection to one million US$ and include similar bond for one
million US$ to secure costs of resettlement and compensation for displaced persons.
5.
If the Project Company does not accept (2) above, call for fresh global tenders with clear definition of
our terms and requirements after survey referred to in recommendation (1) is completed.
6.
Consider mining the rock ourselves and selling it direct to the export market and the local fertilizer
factory as is done in the granite industry. Seek foreign participation for capital, marketing, and technical
expertise as suggested in the Potash Technology Team’s proposal. According to the Director General of BOI,
the capital costs of mining and crushing equipment and infrastructure development for transporting the rock
ourselves at a level of 350,000 to 1.2 million metric tons per annum would be about US$ 43 million. This is a
modest investment considering that the market value of the mined 26.1 million metric tons of rock potash is
US$ 1122.3 million.
Page 17 of 91
Selected paragraphs of Newspaper article “Exploitation of the Potashpura Potash Deposit”
By Professor V. S--------The Potashpura potash deposit, which had been discovered by the Department of Geological Survey many
years back, has, for several years, been mined for providing fertiliser to local communities and the tea, rubber,
and coconut plantations. The Government has recently made a proposal to enter into a joint venture project
agreement with a foreign multinational company to exploit the reserves on a massive scale, to manufacture
high grade potash locally, and to export both the bulk of the raw material and the value added products while
also supplying our country’s requirements. The proposal has been publicly opposed by numerous parties on
various grounds, and the matter evoked the attention of the Council of the National Academy of Sciences.
The Deposit and Proposed Rate of Exploitation: The proven reserve is 25 million metric tons, and the inferred
reserve is 35 million metric tons. It is proposed to mine 3.6 million metric tons during the initial 12-year
period of the 30-year project for direct export, and a further 22.6 million metric tons during the next 18 years
for local manufacture, the bulk of which will be exported.
Fertilizer to be Manufactured Locally: If the economically exploitable ore reserves are not much higher than
25 million metric tons, it might be more prudent to follow the advice of our scientists and accept the Potash
Technology Team’s proposition (estimated to cost 20 million US $, less than 5% of the cost of the proposed
project) to produce 150,000 metric tons of lower grade potash per year to meet only local requirements, even if
in the short term it may appear to give less monetary benefit. This will ensure the preservation of our reserves
for a much longer period, involve simpler technology, leave no environmentally hazardous waste products
such as a million metric tons of potash byproducts, and there will be no need for the large factories required
under the GPE proposal that produce toxic effluents. Of course, the lower grade potash would lose out on high
transport cost per unit nutrient and may have little export demand. Furthermore, under our free market liberal
economy, locally produced low grade potash may be more expensive to our farmers than imported high grade
potash on a unit nutrient value basis unless the local product is given fiscal protection. The decision on what
fertiliser should be produced locally must also await the results of the comprehensive geological survey.
Environmental Considerations: Mining and processing of the products as envisaged will be an operation of
unprecedented magnitude in our country, and the potential environmental impact could be equally drastic.
At the mining site there will be severe disturbances to the ecology of the area through, among others, the
mining operation itself, which will result in huge excavations, pits and gullies. In rainy seasons these will be
filled with water and serve as the breeding centers for mosquitoes, posing serious health hazards. Will
ecological restoration be carried out apace and to a satisfactory degree? At the processing site, the effluents
and other pollutants that will be discharged would pose severe environmental threats unless adequate counter
measures are adopted. Will timely action be taken to ensure that effluents are treated and disposed of without
causing environmental damage? We also draw special attention to the fact that Jalabhoomi, which is within
the area to be mined, has been recognized as a wonder of the ancient world and a cultural monument to be
preserved by UNESCO’s World Heritage Convention.
Although the proposed arrangement with the prospector has provision to the effect that the operations will be
carried out with due respect to the laws of the country, and the our environmental law does contain provisions
to guard against adverse environmental impacts, we are of the opinion that the agreement is very weak and
vague with respect to these requirements. For an operation of this magnitude, additional and specific
safeguards should be adopted. This is particularly important as mining prospectors the world over are
notorious for creating environmental disasters. Before a decision to offer exploration to any firm, its
credentials and track records on environmental protection should be examined. We must also bear in mind
that despite legally binding agreements, the USA itself as well as other countries (e.g. Indonesia) have failed to
ensure that environmental safeguards are observed. What chance have we got? It is therefore important to be
extra vigilant in respect of environmental damage and protection. Reports of performance in other countries
should be studied. Through study of such reports, we would be in a better position to insist on the
incorporation of stronger and more effective measures in the Agreement to ensure environmental safety. A
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prospector should be disqualified in the event of past failures to adhere strictly to pollution prevention
measures.
Economic and Social Considerations: The social benefits of the proposed project would include employment
for about 1000 people, subsidized (5% below market value) potash to local farmers, and improved transport
and communication facilities. However these may be offset by the negative impact of the displacement of up
to 12000 people. It is stated that the project company will as far as possible avoid displacing households, and
that those displaced would be compensated. The government should secure a sufficient bond from the project
company to meet costs of resettlement and compensation.
Page 19 of 91
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A PLEA FOR HELP
October 17, 2003
XYZ
Attorney-at-Law
Mekala Courts Complex
Dear Sir or Madam:
I am writing to urgently request that you help us protect the last remnants of a tribal community, the
Hampshire People, who dwell among the forests of the Vermont National Park in the State of Nahant. The
Hampshire People are a tribe of several hundred families who live within the park. Their forested habitat is
rich with animal life: elephants, tigers, marsh crocodiles, leopards, antelopes, and numerous birds share the
land with us. For as long as the rivers have run clean and the forests have supplied food and shelter, the
Hampshire People have lived in this area, gathering food from the forests and fish from the river, depending on
the gifts of mother earth for their very existence and our identity. Some members of the community have been
forced to the outskirts of the park and have begun marginal agriculture and herding activities to survive.
I am a retired anthropologist. My colleagues and I have studied the Hampshire People for over twenty years.
We recently formed an association, Professionals United for Forest Communities, dedicated to the long-term
welfare of the Hampshire People and like tribal communities.
Twenty years ago, in 1983, we felt both hope and concern when the national government declared by
publication in the National Gazette that the forests of Vermont were now the Vermont National Park. We did
not know how the State Government of Nahant would respond to the creation of the National Park in its
dealings with the Hampshire People. Would the State Government use the declaration to try to force the
Hampshire People out of their forests?
Now, we have the answer we feared most!!! Last month, a company with its headquarters in the capital began
building a tourist hotel inside the national park very close to some of the primary settlements of the Hampshire
People. The company, Emerald Hotel Resorts, Ltd., is cutting down trees and using heavy machinery to clear
the land. They have dug large holes in the ground and are starting to put up structures. We learned that some
of them are diesel power generators for the hotel, which will create great noise and disturbance to the forest.
The workmen have also constructed roads on what were once small forest paths and wildlife trails, to allow
vehicle access to the hotel from outside the park. The construction has already caused animals to flee. The
Hampshire people have had to journey far from their range to find food, causing problems in their relations
with neighboring tribes. Some of the rivers that flow through their land are now filled with earth and refuse
from the construction. The Hampshire People do not catch as many fish as before the construction came.
At the behest of tribal leaders, I talked with the leader of the construction crew. I was told that the Emerald
Hotel Resorts had received permission from the State Government to build an “eco-tourist” hotel in Vermont
National Park!! Moreover, he showed us a piece of paper, a “lease deed,” purportedly giving the company an
18-year lease of 20 hectares of our land amidst the lush jungles and streams rich that the Hampshire People
depend on. He said the company is spending $10 million U.S. to build the luxury hotel. It will include a large
conference hall, tennis courts, a restaurant, and a bar facility. They expect that they will be able to
accommodate more than 500 visitors in one night. This endeavor will spell doom for the Hampshire People.
And where, exactly, is the company building this mega tourist site? At the location where once stood a small
number of cottages, long since abandoned, that the State Government had established for visitors in the
1970’s. This is land on which 50 years ago the State Government had initially built a small saw mill for
exploiting timber from the forests. When this endeavor proved unprofitable, the State Government tried to
salvage its investment by converting some buildings used for housing the employees of the State-run forest
company into simple lodging for tourists. This is when we first joined forces with the Hampshire People,
advocating that the State Government should simply quit the area, a battle we THOUGHT we had won!
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In recent months, we have help organize the Hampshire People, sending a delegation of their leaders to the
capital to protest the construction of the new tourist complex, but their pleas were ignored. They were told
that the hotel would be good for them, providing money and jobs for their youth. But to the Hampshire
People, the forests are their home and mother.
Security guards now patrol the construction site and no longer allow the Hampshire People to access the area
or speak with the workmen. We are afraid for their safety. For the dignity and preservation of the Hampshire
People, we must stop this project. You are our last hope. Can you please help us?
Sincerely,
-Lease Deed to Emerald Hotel Resorts, Ltd
This indenture of lease made on the 25th of June, 2000, between the Government of Nahant represented by
the Principal Chief Conservator of Forests of the State of Nahant, hereinafter called the lessor, and Emerald
Emerald Hotel Resorts, Ltd incorporated under the Companies Act, hereinafter called the lessee, witnesseth
as follows:
(1)(a) Whereas the lessor is the owner in possession of the Wild Lands Project at Village Bostonabad
comprising of main complex, deluxe and supper deluxe cottages, together with the structures/civil
constructions. Situated thereon including viewing platform facing the lake and all the furniture and fittings
and fixtures which will comprise the Reception Centre, Double rooms, dormitories with 76 beds more
particularly listed in Schedule 1A and B … and whereas the lessor is also the owner in possession of Wild
Lands Resorts at Village Bostonabad comprising of 12 cottages and Managers Bungalows shown in plan
forming Schedule 1B … Whereas the lessee … having agreed to take both premises as stated in 1A and 1B
above on lease for rent for running a wildlife resort by providing boarding, lodging and restaurant and
connected activities and facilities to visitors to utilize it towards running a Wildlife Resort thereon for the
promotion of Wildlife (hereinafter referred to as said activities).
Now this indenture witnesseth and it is hereby agreed by and between the parties that:
1.
Effectively from the date of execution of this indenture the lessor doth hereby demise to the lessee the
premises more fully described in Schedule 1A and B above and appended hereto forming a part of the
agreement on an as is where is condition for a period of 18 years on terms and conditions set out hereinafter
and upon the lessee paying to the lessor the rent mentioned hereinafter. …
5.
The lessee shall be responsible to undertake the necessary advertisements, publicity and such acts
necessary for attracting the visitors both Indian and Foreign …
LESSEE COVENANTS
a.
The lessee shall strictly comply with the applicable rules and regulations relating to running of wildlife
resorts, protection and preservation of forest and wildlife and environment.
b.
The lessee will be responsible to keep the said premises in safeguard and sound conditions save
normal wear … and do such acts as are necessary for maintaining hygiene and sanitation and shall also at their
cost do the necessary routine repairs colours , washing, polishing … which are necessary for the upkeep and
running of the said premises as a wildlife resort without any damages to the said premises. …
f.
The lessee shall not without previous consent in writing of the lessor make any structural changes
which are external to demised premises but this consent shall not be unreasonably be withheld. However, the
lessee will be entitled to carry on all alterations within the existing structures without any previous consent of
the lessor. …
j.
The lessee shall not cut, damage, or fell any standing trees in the premises.
Page 22 of 91
CONSTITUTIONAL PROVISIONS
Constitution of Bangladesh
PART III - FUNDAMENTAL RIGHTS
Article 31. Right to protection of law.
To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law,
is the inalienable right of every citizen, wherever he may be, and of every other person for the time being
within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of
any person shall be taken except in accordance with law.
Article 32. Protection of right to life and personal liberty.
No person shall be deprived of life or personal liberty save in accordance with law.
Article 44. Enforcement of fundamental rights.
(1) The right to move the [High Court Division] in accordance with [clause (I)] of article 102 for the
enforcement of the rights conferred by this Part is guaranteed.
PART VI – THE JUDICIARY
Article 102. Powers of High Court Division to issue certain orders and directions, etc.
(1) The High Court Division on the application of any person aggrieved, may give such directions or orders to
any person or authority, including any person performing any function in connection with the affairs of the
Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this
Constitution.
Constitution of India
PART III - FUNDAMENTAL RIGHTS
Article 21. Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part. …
PART IV - DIRECTIVE PRINCIPLES OF STATE POLICY
Article 48A. Protection and improvement of environment and safeguarding of forests and wild life
The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of
the country
Page 23 of 91
PART IVA - FUNDAMENTAL DUTIES
Article 51A. Fundamental duties
It shall be the duty of every citizen of India …
- (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures;
PART VI - THE STATES
Article 226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in
relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases,
any Government, within those territories directions, orders or writs, including writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto and warranto and certiorari, or any of them, for the enforcement
of any of the rights conferred by Part III and for any other purpose. …
Constitution of Nepal
PART III – FUNDAMENTAL RIGHTS
Article 12. Right to Freedom:
(1) No person shall be deprived of his personal liberty save in accordance with law, and no law shall be made
which provides for capital punishment.
Article 23. Right to Constitutional Remedy:
The right to proceed in the manner set forth in Article 88 for the enforcement of the rights conferred by this
Part is guaranteed.
PART XI – THE JUDICIARY
Article 88. Jurisdiction of the Supreme Court:
(1) Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared
void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on
the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and
extraordinary power shall rest with the Supreme Court to declare that law as void either ab initio or from the
date of its decision if it appears that the law in question is inconsistent with the Constitution.
(2) The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for
the enforcement of any other legal right for which no other remedy has been provided or for which the remedy
even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or
legal question involved in any dispute of public interest or concern, have the extraordinary power to issue
necessary and appropriate orders to enforce such rights or to settle the dispute. For these purposes the Supreme
Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders
and writs including habeas corpus, mandamus, certiorari, Prohibition and quo warranto: ...
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Constitution of Pakistan
PART II - FUNDAMENTAL RIGHTS AND PRINCIPLES OF POLICY
Article 9.
No person shall be deprived of life or liberty save in accordance with law.
Article 184.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question
of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter
I of Part II is involved have the power to make an order of the nature mentioned in the said Article.
Article 199.
(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided
by law,(c) on the application of any aggrieved person, make an order giving such directions to any person or
authority, including any Government exercising any power or performing any function in, or in relation to, any
territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the
Fundamental Rights conferred by Chapter 1 of Part 11.
Constitution of Sri Lanka
CHAPTER III – FUNDAMENTAL RIGHTS
Article 11.
No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 12.
(1) All persons are equal before the law and are entitled to the equal protection of the law. ...
Article 13(4).
No person shall be punished with death or imprisonment except by order of a competent court, made in
accordance with procedure established by law. The arrest, holding in custody, detention, or other deprivation
of personal liberty of a person, pending investigation or trial, shall not constitute punishment.
Article 14.
(1) Every citizen is entitled to(f) the freedom by himself or in association with others to enjoy and promote his own culture and to use his
own language;
(g) the freedom to engage by himself or in association with others in any lawful occupation, profession, trade,
business or enterprise;
(h) the freedom of movement and of choosing his residence within Sri Lanka; and
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Article 17.
Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the
infringement or imminent infringement, by executive or administrative action, of a fundamental right to which
such person is entered under the provisions of this Chapter
CHAPTER VI - DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES
Article 28.
The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and
obligations and accordingly it is the duty of every person in Sri Lanka- ...
(f) to protect nature and conserve its riches.
Article 29.
The provisions of this Chapter to not confer or impose legal rights or obligations, and are not enforceable in
any court or tribunal. No question of inconsistency with such provisions shall be raised in any court or
tribunal.
CHAPTER XV – THE JUDICIARY
Article 126. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any
question relating to the infringement or imminent infringement by executive or administrative action of any
fundamental right or language right declared and recognized by Chapter III or Chapter IV.
(2) Where any person alleges that any such fundamental right or language right relating to such person has
been infringed or is about to be infringed by executive or administrative action, he may himself or by an
attorney-at-law on his behalf, within one month thereof, in accordance with such rules of court as may be in
force, apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or
redress in respect of such infringement. Such application may be proceeded with only with leave to proceed
first had and obtained from the Supreme Court, which leave may be granted or refused, as the case may be, by
not less than two Judges.
(3) Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ
of habeas corpus, certiorai, prohibition, procedendo, mandamus or quo warrnto, it appears to such Court that
there is prima-facie evidence of an infringement or imminent infringement of the provisions of Chapter III or
Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination by the
Supreme Court.
(4) The Supreme Court shall have power to grant such relief or make such directions as it may deem just and
equitable in the circumstance in respect of any petition or reference referred to in paragraphs (2) and (3) of this
Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a
fundamental right or language right.
(5) The Supreme Court shall hear and finally dispose of any petition or reference under this Article within two
months of the filing of such petition or the making of such reference.
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STATUTORY PROVISIONS
Bangladesh -- Environment Conservation Act, 1995 (selected sections)
2. Definitions.In this Act, unless there is anything contrary in the subject or context"conservation of environment" means improvement of the qualitative and quantitative characteristics of
different components of environment as well as prevention of degradation of those components; [Ref: Clause
(f).]
"Department" means the Department of Environment established under section 3 of this Act; [Ref: Clause
(a).]
"Director General" means Director General of the Department; [Ref: Clause (m).]
"ecosystem" means the inter-dependent and balanced complex association of all components of the
environment which can support and influence the conservation and growth of all living organisms; [Ref:
Clause (g).]
"environment" means the inter-relationship existing between water, air, soil and physical property and their
relationship with human beings, other animals, plants and micro-organisms; [Ref: Clause (d).]
"environment pollutant" means any solid, liquid or gaseous substance which causes harmful effect to the
environment and also includes heat, sound and radiation; [Ref: Clause (e).]
"hazardous substance" means a substance, the chemical or biochemical properties of which are such that its
manufacture, storage, discharge or unregulated transportation can be harmful to the environment; [Ref: Clause
(j).]
"occupier", in relation to any factory or premises, means a person who has control over the affairs of the
factory or the premises, and in relation to a product, means the person in possession of the product; [Ref:
Clause (c).]
"person" means a person or group of persons, and includes any company, association or corporation, whether
incorporated or not; [Ref: Clause (h).]
"pollution" means the contamination or alteration of the physical, chemical or biological properties of air,
water or soil, including change in their temperature, taste, odor, density, or any other characteristics, or such
other activity which, by way of discharging any liquid, gaseous, solid, radioactive or other substances into air,
water or soil or any component of the environment, destroys or causes injury or harm to public health or to
domestic, commercial, industrial, agricultural, recreational or other useful activity, or which by such discharge
destroys or causes injury or harm to air, water, soil, livestock, wild animal, bird, fish, plant or other forms of
life; [Ref: Clause (b).]
"rule" means rule made under this Act; [Ref: Clause (k).]
"use", in relation to any material, means manufacturing, processing, treatment, package, storage,
transportation, collection, destruction, conversion, offering for sale, transfer or similar activity relating to such
material; [Ref: Clause (i).]
"waste" means any solid, liquid, gaseous, radioactive substance, the discharge, disposal and dumping of which
may cause harmful change to the environment; [Ref: Clause (l).]
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9. Discharge of excessive environmental pollutant etc.(1) Where, due to an accident or other unforeseen incident, the discharge of any environmental pollutant
occurs or is likely to occur in excess of the limit prescribed by the rules, the person responsible and the person
in charge of the place of occurrence shall take measures to control or mitigate the environmental pollution.
(2) The persons referred to in sub-section (1) shall immediately inform the Director General of the occurrence
or the likelihood of such occurrence as mentioned in that sub-section.
(3) On receipt of information under this section with respect to the accident or other incident, the Director
General shall take necessary remedial measures to control or mitigate the environmental pollution, and the said
person shall be bound to render assistance and co-operation as required by the Director General.
(4) The expenses incurred with respect to remedial measures to control and mitigate the environmental
pollution under this section shall be payable to the Director General and may be realized from the persons
referred to in sub-section (1) as public demand.
12. Environmental Clearance Certificate.No industrial unit or project shall be established or undertaken without obtaining, in the manner prescribed by
rules, an Environmental Clearance Certificate from the Director General.
16. Offences committed by companies.3[(1) Where a company violates any provision of this Act or fails to perform its duties in accordance with a
notice issued under this Act or the rules or fails to comply with an order or direction, then the owner, director,
manager, secretary or any other officer or agent of the company, shall be deemed to have violated such
provision or have failed to perform the duties in accordance with the notice or failed to comply with the order
or direction, unless he proves that the violation or failure was beyond his knowledge or that he exercised due
diligence to prevent such violation or failure.
Explanation.- For the purposes of this section - (a) “company” means any statutory public authority, registered
company, partnership firm, and association or organisation, (b) director, in relation to a commercial
establishment, also includes any partner or member of the board of directors.]
4[(2) Where a company mentioned in sub-section (1) is a body corporate, such company, apart from any
person charged and convicted under that sub-section, may also be charged and convicted under that subsection in the same proceedings, but the penalty of fine only may be imposed on such company in a criminal
proceedings.]
Bangladesh -- Factories Act, 1965 (selected sections)
Section 13. Disposal of wastes and effluents. (1) Effective arrangements shall be made in every factory for the disposal of wastes and effluents due to the
manufacturing process carried on therein.
(2) The Government may make rules prescribing the arrangements to be made in accordance with sub-section
(1) or requiring that the arrangement made in accordance with sub-section (1) shall be approved by such
authority as may be prescribed.
Bangladesh – Environment Conservation Rules, 1997
SCHEDULE-10 Standards for Waste from Industrial Units or Projects waste
See pages 29 to 31 of this Chapter.
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India – Environmental (Protection) Act, 1986 (selected sections)
2. Definitions In this Act, unless the context otherwise requires,-(a) "environment" includes water, air and land and the inter- relationship which exists among and between
water, air and land, and human beings, other living creatures, plants, micro-organism and property;
(b) "environmental pollutant" means any solid, liquid or gaseous substance present in such concentration as
may be, or tend to be, injurious to environment;
(c) "environmental pollution" means the presence in the environment of any environmental pollutant;
(d) "handling", in relation to any substance, means the manufacture, processing, treatment, package, storage,
transportation, use, collection, destruction, conversion, offering for sale, transfer or the like of such substance;
(e) "hazardous substance" means any substance or preparation which, by reason of its chemical or physicochemical properties or handling, is liable to cause harm to human beings, other living creatures, plant, microorganism, property or the environment;
(f) "occupier", in relation to any factory or premises, means a person who has, control over the affairs of the
factory or the premises and includes in relation to any substance, the person in possession of the substance;
(g) "prescribed" means prescribed by rules made under this Act.
7. Persons carrying on industry operation, etc., not to allow emission or discharge of environmental
pollutants in excess of the standards No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or
emitted any environmental pollutants in excess of such standards as may be prescribed.
8. Persons handling hazardous substances to comply with procedural safeguards No person shall handle or cause to be handled any hazardous substance except in accordance with such
procedure and after complying with such safeguards as may be prescribed.
15. Penalty for contravention of the provisions of the Act and the rules, orders and directions (1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders
or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with
imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or
with both, and in case the failure or contravention continues, with additional fine which may extend to five
thousand rupees for every day during which such failure or contravention continues after the conviction for the
first such failure or contravention.
(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the
date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven
years.
16. Offences by Companies (1) Where any offence under this Act has been committed by a company, every person who, at the time the
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offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the
business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be
liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment
provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised
all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been
committed by a company and it is proved that the offence has been committed with the consent or connivance
of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall also deemed to be guilty of that offence and
shall be liable to be proceeded against and punished accordingly.
18. Protection of action taken in good faith
No suit, prosecution or other legal proceeding shall lie against the Government or any officer or other
employee of the Government or any authority constituted under this Act or any member, officer or other
employee of such authority in respect of anything which is done or intended to be done in good faith in
pursuance of this Act or the rules made or orders or directions issued thereunder.
19. Cognizance of offences No court shall take cognizance of any offence under this Act except on a complaint made by-(a) the Central Government or any authority or officer authorised in this behalf by that Government, or
(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged
offence and of his intention to make a complaint, to the Central Government or the authority or officer
authorised as aforesaid.
22. Bar of jurisdiction No civil court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action
taken or order or direction issued by the Central Government or any other authority or officer in pursuance of
any power conferred by or in relation to its or his functions under this Act.
India -- The Water (Prevention and Control of Pollution) Act, 1974 (selected sections)
2. Definitions.In this Act, unless the context otherwise requires. (dd) "outlet" includes any conduit pipe or channel, open or closed, carrying sewage or trade effluent or any
other holding arrangement which causes, or is likely to cause, pollution;
(e) "pollution" means such contamination of water or such alteration of the physical, chemical or biological
properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid
substance into water (whether directly or indirectly) as may or is likely to, create a nuisance or render such
water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or
other legitimate uses, or to the life and health of animals or plants or of aquatic organisms;
(f) "prescribed" means prescribed by rules made under this Act by the Central Government or, as the case may
be, the State Government;
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(g) "sewage effluent" means effluent from any sewerage system or sewage disposal works and includes sullage
from open drains;
(gg) "sewer" means any conduit pipe or channel, open or closed, carrying sewage or trade effluent;
(j) "stream" includes - (i) river; (ii) water course (whether flowing or for the time being dry); (iii) inland
water (whether natural or artificial); (iv) sub-terranean waters; (v) sea or tidal waters to such extent or, as the
case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this
behalf;
(k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any premises used
for carrying on any industry; operation or process or treatment and disposal system other than domestic
sewage. ….
24. Prohibition on use of stream or well for disposal of polluting matter. (1) Subject to the provisions of this section, (a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in
accordance with such standards as may be laid down by the State Board to enter (whether directly or
indirectly) into any stream or well or sewer or on land; or
(b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either
directly or in combination with similar matters, to impede the proper flow of the water of the stream in a
manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its
consequence.
(2) A person shall not be guilty of an offence under sub-section (1), by reason only of having done or caused to
be done any of the following acts, namely :(a) constructing, improving or maintaining in or across or on the bank or bed of any stream any building,
bridge, weir, dam, sluice, dock, pier, drain or sewer or other permanent works which he has a right to
construct, improve or maintain;
(b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for
supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of
polluting such stream;
(c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been
deposited by the current of such stream;
(d) causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or
reservoir to enter into any stream.
(3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt,
by notification in the Official Gazette, any person from the operation of sub-section (1) subject to such
conditions, if any, as may be specified in the notification and any condition so specified may by a like
notification be altered, varied or amended.
25. Restrictions on new outlets and new discharges. (1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, (a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal
system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream
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or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage);
or (b) bring into use any new or altered outlet for the discharge of sewage; or (c) being to make any new
discharge of sewage :
Provided that a person in the process of taking any steps to establish any industry, operation or process
immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act,
1988, for which no consent was necessary prior to such commencement, may continue to do so for a period of
three months from such commencement or, if he has made an application for such consent, within the said
period of three months, till the disposal of such application. …
(5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and
disposal system or any extension or addition thereto, is established, or any steps for such establishment have
been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of
sewage is made, the State Board may serve on the person who has established or taken steps to establish any
industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or
using the outlet, or making the discharge, as the case may be, notice imposing any such conditions as it might
have imposed on an application for its consent in respect of such establishment, such other or discharge.
(6) Every State Board shall maintain a register containing particulars of the conditions imposed under this
section and so much of the register as relates to any outlet, or to any effluent, from any land or premises shall
be open to inspection at all reasonable hours by any person interested in or affected by such outlet, land or
premises, as the case may be, or by any person authorised by him in this behalf and the conditions so contained
in such register shall be conclusive proof that the consent was granted subject to such conditions.
(7) The consent referred to in sub-section (1) shall, unless given or refused earlier be deemed to have been
given unconditionally on the expiry of period of four months of the making of an application in this behalf
complete in all respects to the State Board.
26. Provisions regarding existing discharge of sewage or trade effluent. Where immediately before the commencement of this Act any person was discharging any sewage or trade
effluent into a stream or well or sewer or on land the provisions of section 25 shall, so far as may apply in
relation to such person as they apply in relation to the person referred to in that section subject to the
modification that the application for consent to be made under sub-section (2) of that section shall be made on
or before such date as may be specified by the State Government by notification in this behalf in the Official
Gazette. …
43. Penalty for contravention of provisions of section 24. Whoever contravenes the provisions of section 24 shall be punishable with imprisonment for a term which
shall not be less than one year and six months but which may extend to six years and with fine.
44. Penalty for contravention of section 25 or section 26. Whoever contravenes the provisions of section 25 or section 26 shall be punishable with imprisonment for a
term which shall not be less than one year and six months but which may extend to six years and with fine. …
47. Offences by companies. (1) Where an offence under this Act has been committed by a company, every person who at the time the
offence was committed was in charge of, and was responsible to the company for the conduct of, the business
of the company, as well as the company, shall be deemed to be guilty of the offences and shall be liable to be
proceeded against and punished accordingly :
Provided that nothing contained in this sub-section shall render any such person liable to any punishment
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provided in this Act if the proves that the offence was committed without his knowledge or that he exercised
all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been
committed by a company and it is proved that the offence has been committed with the consent or connivance
of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence
and shall be liable to be proceeded against and punished accordingly.
Explanation : For the purposes of this section (a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director" in relation to a firm means a partner in the firm.
48. Offences by government departments. Where an offence under this Act has been committed by any Department of Government, the Head of the
Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly :
Provided that nothing contained in this section shall render such Head of the Department liable to any
punishment if he proves that the offence was committed without his knowledge or that he exercised all due
diligence to prevent the commission of such offence.
India -- Environment Impact Assessment Notification (selected provisions, including amendments up to
21/11/2001)
[T]he Central Government hereby directs that on and from the date of publication of this notification in the
Official Gazette, expansion or modernization of any activity (if pollution load is to exceed the existing one, or
new project listed in Schedule I to this notification, shall not be undertaken in any part of India unless it has
been accorded environmental clearance by the Central Government in accordance with the procedure
hereinafter specified in this notification;
2. Requirements and procedure for seeking environmental clearance of projects:
I. (a) Any person who desires to undertake any new project in any part of India or the expansion or
modernization of any existing industry or project listed in the Schedule-I shall submit an application to the
Secretary, Ministry of Environment and Forests, New Delhi. The application . . . shall be accompanied by a
project report which shall, inter alia, include an Environmental Impact Assessment Report, an Environment
Management Plan and details of public hearing . . . prepared in accordance with the guidelines issued by the
Central Government in the Ministry of Environment and Forests from time to time. However, Public Hearing
is not required in respect of (i) small scale industrial undertakings located in (a) notified/designated industrial
areas/industrial estates or (b) areas earmarked for industries under the jurisdiction of industrial development
authorities; (ii) widening and strengthening of highways; (iii) mining projects (major minerals) with lease area
up to 25 hectares, (iv) units located in Export Processing Zones, Special Economic Zones and (v)
modernisation of existing irrigation projects.
(b) Cases rejected due to submission of insufficient or inadequate data and Plans may be reviewed as and when
submitted with complete data and Plans. Submission of incomplete data or plans for the second time would
itself be a sufficient reason for the Impact assessment Agency to reject the case summarily.
II. In case of the following site specific projects: (a) mining; (b) pit-head thermal power stations;
(c) hydro-power, major irrigation projects and/or their combination including flood control; (d) ports and
harbours (excluding minor ports); (e) prospecting and exploration of major minerals in areas above 500
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hectares; The project authorities will intimate the location of the project site to the Central Government in the
Ministry of Environment and Forests while initiating any investigation and surveys. The Central Government
in the Ministry of Environment and Forests will convey a decision regarding suitability or otherwise of the
proposed site within a maximum period of thirty days. The said site clearance shall be granted for a sanctioned
capacity and shall be valid for a period of five years for commencing the construction, operation or mining.
III. (a) The reports submitted with the application shall be evaluated and assessed by the Impact Assessment
Agency, and if deemed necessary it may consult a committee of Experts . . . . The Impact Assessment Agency
(IAA) would be the Union Ministry of Environment and Forests. The Committee of Experts mentioned above
shall be constituted by the Impact Assessment Agency or such other body under the Central Government
authorised by the Impact Assessment Agency in this regard.
(b) The said Committee of Experts shall have full right of entry and inspection of the site or, as the case may
be, factory premises at any time prior to, during or after the commencement of the operations relating to the
project.
(c) The Impact Assessment Agency shall prepare a set of recommendations based on technical assessment of
documents and data, furnished by the project authorities, supplemented by data collected during visits to sites
or factories if undertaken, and details of public hearing. The assessment shall be completed within a period of
ninety days from receipt of the requisite documents and data from the project authorities and completion of
public hearing and decision conveyed within thirty days thereafter. The clearance granted shall be valid for a
period of five years for commencement of the construction or operation of the project. No construction work,
preliminary or otherwise, relating to the setting up of the project may be undertaken till the environmental and
site clearance is obtained.
IV. In order to enable the Impact Assessment Agency to monitor effectively the implementation of the
recommendations and conditions subject to which the environmental clearance has been given, the project
authorities concerned shall submit a half yearly report to the Impact Assessment Agency. Subject to the public
interest, the Impact Assessment Agency shall make compliance reports publicly available. . . .
4. Concealing factual data or submission of false, misleading data/reports, decisions or recommendations
would lead to the project being rejected. Approval, if granted earlier on the basis of false data, would also be
revoked. Misleading and wrong information will cover the following: · False information; · False data; ·
Engineered reports; · Concealing of factual data; · False recommendations or decisions
India -- Environment Impact Assessment Notification (2001)
SCHEDULE I
LIST OF PROJECTS REQUIRING ENVIRONMENTAL CLEARANCE FROM THE CENTRAL
GOVERNMENT
1. Nuclear Power and related projects such as Heavy Water Plants, nuclear fuel complex, Rare Earths.
2. River Valley projects including hydel power, major Irrigation and their combination including flood control.
3. Ports, Harbours, Airports (except minor ports and harbours).
4. Petroleum Refineries including crude and product pipelines.
5. Chemical Fertilizers (Nitrogenous and Phosphatic other than single superphosphate).
6. Pesticides (Technical).
7. Petrochemical complexes (Both Olefinic and Aromatic) and Petro-chemical intermediates such as DMT,
Caprolactam, LAB etc. and production of basic plastics such as LLDPE, HDPE, PP, PVC.
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8. Bulk drugs and pharmaceuticals.
9. Exploration for oil and gas and their production, transportation and storage.
10. Synthetic Rubber.
11. Asbestos and Asbestos products.
12. Hydrocyanic acid and its derivatives.
13 (a) Primary metallurgical industries (such as production of Iron and Steel, Aluminium, Copper, Zinc, Lead
and Ferro Alloys). (b) Electric arc furnaces (Mini Steel Plants).
14. Chlor alkali industry.
15. Integrated paint complex including manufacture of resins and basic raw materials required in the
manufacture of paints.
16. Viscose Staple fibre and filament yarn.
17. Storage batteries integrated with manufacture of oxides of lead and lead antimony alloys.
18. All tourism projects between 200m—500 metres of High Water Line and at locations with an elevation of
more than 1000 metres with investment of more than Rs.5 crores.
19. Thermal Power Plants.
20. Mining projects (major minerals) with leases more than 5 hectares.
21. Highway Projects except projects relating to improvement work including widening and strengthening of
roads with marginal land acquisition along the existing alignments provided it does not pass through
ecologically sensitive areas such as National Parks, Sanctuaries, Tiger Reserves, Reserve Forests
22. Tarred Roads in the Himalayas and or Forest areas.
23. Distilleries.
24. Raw Skins and Hides
25. Pulp, paper and newsprint.
26. Dyes.
27. Cement.
28. Foundries (individual)
29. Electroplating
30. Meta amino phenol
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India – Environment (Protection) Rules, 1986 (selected provisions)
3. Standards for emissions or discharge of environmental pollutants
(1) For the purpose of protecting and improving the quality of the environment and preventing and abating
environmental pollution, the standards for emission or discharge of environmental pollutants from the
industries, operations or processes shall be as specified in 2[Schedule I to IV].
(2) Notwithstanding anything contained in sub-rule (1),the Central Board or a State Board may specify more
stringent standards from those provided in 3[Schedule I to IV] in respect of any specific industry, operation or
process depending upon the quality of the recipient system and after recording reasons therefore in writing.
4(3) The standards for emission or discharge of environmental pollutants specified under sub-rule (1) or subrule (2) shall be complied with by an industry, operation or process within a period of one year of being so
specified.
5[(3A) (i) Notwithstanding anything contained in sub-rules (1) and (2), on and from the 1st day of January,
1994, emission or discharge of environmental pollutants from the 6[industries, operations or processes other
than those industries, operations or processes for which standards have been specified in Schedule-I] shall not
exceed the relevant parameters and standards specified in schedule VI.
Provided that the State Boards may specify more stringent standards for the relevant parameters with respect to
specific industry or locations after recording reasons therefore in writing;
(ii) The State Board shall while enforcing the standards specified in Schedule VI follow the guidelines
specified in Annexure I and II in that Schedule].
7[(3B)] The combined effect of emission or discharge of environmental pollutants in an area, from industries,
operations, process, automobiles and domestic sources, shall not be permitted to exceed the relevant
concentration in ambient air as specified against each pollutant in columns (3) to (5) of Schedule VII.]
(4) Notwithstanding anything contained in sub-rule (3)(a) the Central Board or a State Board, depending on the local conditions or nature of discharge of
environmental pollutants, may, by order, specify a lesser period than a period specified under sub-rule (3)
within which the compliance of standards shall be made by an industry, operation or process
(b) the Central Government in respect of any specific industry, operation or process, by order, may specify any
period other than a period specified under sub-rule (3) within which the compliance of standards shall be made
by such industry, operation or process.
(5) Notwithstanding anything contained in sub-rule (3) the standards for emission or discharge of
environmental pollutants specified under sub-rule (I) or sub-rule (2) in respect of an industry, operation or
process before the commencement of the Environment (Protection) Amendment Rules, 1991, shall be
complied by such industry, operation or process by the 31st day of December 1991.
8[(6) Notwithstanding anything contained in sub-rule (3), an industry, operation or process which has
commenced production on or before 16th May, 1981 and has shown adequate proof of at least commencement
of physical work for establishment of facilities to meet the specified standards within a time-bound
programme, to the satisfaction of the concerned State Pollution Control Board, shall comply with such
standards latest by the 31 st day of December, 1993.
(7) Notwithstanding anything contained in sub-rule (3) or sub-rule (6) an industry, operation or process which
has commenced production after the 16th day of May, 1981 but before the 31st day of December 1991 and has
Page 39 of 91
shown adequate proof of at least commencement of physical work for establishment of facilities to meet the
specified standards within a time-bound programme, to the satisfaction of the concerned State Pollution
Control Board, shall comply with such standards latest by the 31st day of December, 1992.]
11. Manner of giving notice The manner of giving notice under clause (b) of section 19 shall be as follows, namely:(l) The notice shall be in writing in Form IV.
(2) The person giving notice may send notice to(a) if the alleged offence has taken place in a Union territory
(A) the Central Board and; ) Ministry of Environment and Forests (represented by the Secretary to
Government of India);
(b) if the alleged offence has taken place in a State:
(A) the State Board; and (B) the Government of the State (represented by the Secretary to the State
Government in-charge of environment); and (C) the Ministry of Environment and Forests (represented by the
Secretary to the Government of India);
(3) The notice shall be sent by registered post acknowledgement due; and
(4) The period Of sixty days mentioned in clause (b) of section 19 of the Environment (Protection) Act, 1986
shall be reckoned from the date it is first received by one of the authorities mentioned above.
India – Environment (Protection) Rules, 1986
SCHEDULE I
EMISSION STANDARDS FOR POLLUTANTS FROM VARIOUS INDUSTRIES
Page 40 of 91
8. Dye and Dye
Intermediate Industries
Concentration not to exceed milligrammes per
litre (except for pH, temperature and bio-assay)
Suspended Solids
pH
Temperature
100
6 to 8.5
Shall not exceed 5oC above the ambient
temperature of the receiving body.
Mercury (as Hg)
Hexavalent (asCr)
Chromium
Total Chromium (as Cr)
Copper (as Cu)
Zinc (as Zn)
Nickel (as Ni)
Cadmium (as Cd)
Chloride (as Cl)
Sulphate (as SO4)
Phenolic Compounds (as
C6H5OH)
Oil and Grease
Bio-assay Test (with 1:8
dilution of effluents)
0.01
0.1
2.0
3.0
5.0
3.0
2.0
1000
1000
1.0
10
90% survival of Test animals after 96 hours.
The standards for chlorides and sulphates are applicable for discharge into inland and surface water courses.
However, when discharged on land for irrigation, the limit for chloride shall not be more than 600
miligrammes per litre and the sodium absorption ratio shall not exceed 26.
45. Dye and dye Intermediate Industry (Wastewaterdischarge)
EFFLUENTS
pH
Colour Hazen Unit
Suspended Solids
BOD5 20°C
Oil and Grease
PhenolicsasC6H5OH
Cadmium as Cd
Copper as Cu
Manganese as Mn
Lead as Pb
Mercury as Hg
Nickel as Ni
Zinc as Zn
Chromium as Cr
Chromium as Cr6
Bio-assay test
Page 41 of 91
6.0-8.5
400.0
100.0
100.0
10.0
1.00
0.2
2.0
2.0
0.1
0.01
2.0
5.0
0.1
2.0
90 percent survival in 96
hours.
SCHEDULE VI
GENERAL STANDARDS FOR DISCHARGE OF ENVIRONMENT POLLUTANTS PART A:
EFFLUENTS
Standards
S.No. Parameter
Inland surface Water Public Sewers
Land for
irrigation
Marine coastal areas
(a)
(c)
(d)
(b)
1.
Colour and odour
See 6 of Ainnexure-I --
See 6 of
Annexure-I
See 6 of Annexure-I
2.
Suspended solids
mg/l, Max.
100
200
a) For process waste
water-100
600
(b) For cooling water
effluent 10 per cent
above total suspended
matter of influent
3.
Particular size of
suspended solids
Shall pass 850
micron IS Sieve
-
-
(a) Floatable solids,max.
3 mm
(b)Settleable solids,max
850 microns
1
4.
***
*
---
***
---
5.
pH value
5.5 to 9.0
5.5 to 9.0
5.5 to 9.0
5.5 to 9.0
6.
Temperature
shall not exceed 5°C
above the receiving -water temperature
***
shall not exceed 5°C
above the receiving
water temperature
7.
Oil and grease mg/l
Max.
10
20
10
20
8.
Total residual chlorin
1.0
mg/l Max.
-
-
1.0
9.
Ammonical nitrogen
(as N),mg/l Max.
50
50
-
50
10.
Total Kjeldahl
nitrogen (as NH3):
mg/1,Max.
100
-
-
100
11.
Free ammonia
(as NH3) mg/l, max.
5.0
-
-
5.0
12.
Biochemical oxygen
demand (5 days at
20°C, mg/l max.
30
350
100
100
13.
Chemical Oxygen
demand, mg/l Max.
250
-
-
250
14.
Arsenic (as As), mg/l
0.2
max.
0.2
0.2
0.2
15.
Mercury (As Hg),
mg/l Max.
0.01
0.01
-
0.01
16.
Lead (as Pb) mg/l,
Max.
0.1
1.0
-
2.0
Page 42 of 91
17.
Cadmium (as cd)
mg/l,Max.
2.0
1.0
-
2.0
18.
Hexavalent
chromium (as Cr+6), 0.1
mg/l, Max.
2.0
-
1.0
19.
Total chromium as
Cr) mg/l, Max
2.0
2.0
-
2.0
20.
Copper (as Cu) mg/l,
3.0
Max.
3.0
-
3.0
21.
Zine (as Zn) mg/l,
Max.
5.0
15
-
15
22.
Selenium (as Sc.)
mg/l, Max.
0.05
0.05
-
0.05
23.
Nickel (as Ni) mg/l,
Max.
3.0
3.0
-
5.0
1
24.
***
*
*
*
*
1
25.
***
*
*
*
*
1
.26.
***
*
*
*
*
27.
Cyanide (as CN),
mg/l Max.
0.2
2.0
0.2
0.2
28.
***
*
*
*
*
29.
Fluoride(as F) mg/l
Max.
2.0
15
-
15
30.
Dissolved phosphates
5.0
(as P), mg/l Max.
-
-
-
1
***
*
*
*
*
32.
Sulphide (as S) mg/l
Max.
2.0
-
-
5.0
33.
Phenoile compounds
(as C6H5OH) mg/l
max.
1.0
5.0
-
5.0
34.
Radioactive
materials:
(a) Alpha emitter
micro curie/ml
10-7
10-7
10-8
10-7
(b) Beta emitter
microcurie/ml
10-6
10-6
10-7
10-6
35.
Bio-assay test
90% survival of
90% survival of fish
90% survival of
90% survival of fish
fish after 96
after 96 hours in
fish after 96 hours after 96 hours in 100%
hours in 100%
100% effluent
in 100% effluent effluent
effluent
36.
Manganese (as Mn),
2 mg/l
2 mg/l
-
2 mg/l
37.
Iron (as Fe)
3 mg/l
3 mg/l
-
3 mg/l
38.
Vanadium (as V)
0.2 mg/l
0.2 mg/l
-
0.2 mg/l
39.
Nitrate Nitrogen
10 mg/l
-
-
20 mg/l
1
***
*
*
*
*
31.
40.
Page 43 of 91
India -- Hazardous Wastes (Management and Handling) Rules, 1989 (selected sections)
4. Responsibility of the occupier for handling of wastes.
(1) The occupier generating hazardous wastes listed in column (2) of the Schedule in quantities equal to or
exceeding the limits given in column (3) of the said Schedule, shall take all practical steps to ensure that such
wastes are properly handled and disposed of without any adverse effects which may result from such wastes
and the occupier shall also be responsible for proper collection, reception, treatment, storage and disposal of
these wastes either himself or through the operator of a facility.
(2) The occupier or any other person acting on his behalf who intends to get his hazardous waste treated by the
operator of a facility under sub-rule (1), shall give to the operator of a facility, such information as may be
specified by the State Pollution Control Board.
SCHEDULE - CATEGORIES OF HAZARDOUS WASTES
Waste Category 8: Wastes from Dyes and Dye intermediate containing inorganic chemical compounds.
Regulatory quantities: 200 kilogrammes per year calculated as inorganic chemicals.
Waste Category 9: Wastes from Dyes and Dye intermediate containing organic chemical compounds.
Regulatory quantities: 50 kilogrammes per year calculated as organic chemicals.
Waste Category 16: Acid/Alkaline/Slurry
Regulatory quantities: 200 kilogrammes per year calculated as Acids/Alkalies.
Wastes Category 17: Off-specification and discarded products.
Regulatory quantities: Irrespective of any quantity.
India -- The Mines and Minerals (Development and Regulation) Act, 1957 (selected sections)
4 (1) [No person shall undertake any reconnaissance, prospecting or mining operations in any area, except
under and in accordance with the terms and conditions of reconnaissance permit or of a prospecting licence or,
as the case may be, a mining lease, granted under this Act and the rules made thereunder]:
Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any
area in accordance with the term and conditions of a prospecting licence or mining lease granted before the
commencement of this Act which is in force at such commencement.
Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the
Geological Survey of India, the Indian Bureau of Mines, [the Atomic Minerals Directorate for Exploration and
Research] of the Department of Atomic Energy of the Central Government, the Directorates of Mining and
Geology of any State Government ( by whatever name called), and the Mineral Exploration Corporation
Limited, a Government Company within the meaning of Section 617 of the Companies Act, 1956.
Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease,
mining concession or by any other name) in force immediately before the commencement of this Act in the
Union Territory of Goa, Daman and Diu.
[(1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in
accordance with the provisions of this Act and the rules made thereunder.]
(2) [No reconnaissance permit, prospecting licence or mining lease] shall be granted otherwise then in
accordance with the provisions of this Act and the Rules made thereunder.
Page 44 of 91
(3) Any State Government may, after prior consultation with the Central Government and in accordance with
the Rules under Section 18, [undertake reconnaissance, prospecting or mining operations with respect to any
mineral specified in the First Schedule in any area within that State which is not already held under any
reconnaissance permit, prospecting licence or mining lease.]
5. [(1) A State Government shall not grant a [reconnaissance permit, prospecting licence or mining lease] to
any person unless such person –
1. is an Indian national, or a Company as defined in sub-section (1) of Section 3 of the Companies Act, 1956;
and
2. satisfies such conditions as may be prescribed :
Provided that in respect of any mineral specified in the First Schedule, no prospecting licence or mining lease
shall be granted except with the previous approvals of the Central Government.
Explanation – For the purposes of this sub-section, a person shall be deemed to be an Indian national, 1. in the case of a firm or other association of individuals, only if all the members of the firm or members of
the association are citizens of India; and
2. in the case of an individual, only if he is a citizen of India;]
(2) No mining lease shall be granted by the State Government unless it is satisfied that[(a) there is evidence to show that the area for which the lease is applied for has been prospected earlier or the
existence of mineral contents therein has been established otherwise than by means of prospecting such area;
and
(b) there is a mining plan duly approved by the Central Government, or by the State Government, in respect of
such category of mines as may be specified by the Central Government, for the development of mineral
deposits in the area concerned.]
India -- The Mineral Conservation and Development Rules, 1988, 2000 (Selected sections)
9. Mining Plan:
(1) No person shall commence mining operations in any area except in accordance with a mining plan
approved under clause (b) of sub-section (2) of section 5 of the Act.
(2) The Controller General or the authorised officer [or the officer authorised in this behalf by the State
Government, as the case may be,] may require the holder of a mining lease to make such modifications in the
mining plan referred to in sub-rule (1) or impose such conditions as he may consider necessary by an order in
writing if such modifications or imposition of conditions are considered necessary(a) in the light of the experience of operation of mining plan;
(b) in view of the change in the technological development.
India -- Forest (Conservation) Act, 1980 with Amendments Made in 1988 (selected sections)
2. Restriction on the dereservation of forests or use of forest land for non-forest purpose.
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 directing-
Page 45 of 91
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time
being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest land or any portion thereof may be used for any non-forest purpose;
(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private
person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by
Government;
(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land
or portion, for the purpose of using it for reafforestation. …
Explanation - For the purpose of this section, "non-forest purpose" means the breaking up or clearing of any
forest land or portion thereof for- (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants,
horticultural crops or medicinal plants; (b) any purpose other than reafforestation;
but does not include any work relating or ancillary to conservation, development and management of forests
and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of
fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like
purposes.
India -- The Indian Wildlife (Protection) Act, 1972, amended 1993 (selected sections)
18. Declaration of Sanctuary.– [(l) The State Government may, by notification, declare its intention to
constitute any area other than area comprised with any reserve forest or the territorial waters as a sanctuary if it
considers that such area is of adequate ecological, faunal, floral, geomorphological, natural. or zoological
significance, for the purpose of protecting, propagating or developing wildlife or its environment. 2]
(2) The notification referred to in sub-section (1) shall specify, as nearly as possible, the situation and limits of
such area.
Explanation. - For the purposes of the this section, it shall be sufficient to describe the area by roads, rivers,
ridges, or other well-known or readily intelligible boundaries
19. Collector to determine rights.– [3When a notification has been issued under Sec.18,] the collector shall
inquire into, and determine the existence, nature and extent of the rights of any person in or over the land
comprised within the limits of the sanctuary.
20. Bar of accrual of rights.– After the issue of a notification under Sec. 18, no right shall be acquired in, or
over the land comprised within the limits of the area specified in such notification, except by succession,
testamentary or intestate.
21. Proclamation by Collector. – When a notification has been issued under Sec.18 the Collector shall
publish in the regional language in every town and village in or in the neighborhood of the area comprised
therein, a progamation:
(a) specifying, as nearly as possible, the situation and the limits of the sanctuary; and
(b) requiring any person, claiming any right mentioned in Sec. 19, to prefer before the collector" within two
months from the date of such proclamation, a written claim in the prescribed form specifying the nature and
extent of such right, with necessary details and the amount and particulars of the compensation, if any, claimed
in respect thereof.
22. Inquiry by Collector. – The Collector shall, after service of the prescribed notice upon the claimant,
Page 46 of 91
expeditiously inquire into
(a) the claim preferred before him under Cl. (b) of Sec.21, and
(b) the existence of any right mentioned in Sec.19 and not claimed under Cl.(b) of Sec.21, so far as the same
may be ascertainable from the records of the State Goven-iments and the evidence of any person acquainted
with the same.
23. Powers of Collector. – For the purpose of such inquiry, the Collector may exercise the following powers,
namely
(a) the power to enter in or upon any land and to survey, demarcate, and make a map of the same or to
authorise any other officer to do so;
(b) the same powers as are vested in a civil court for the trial of suits.
24. Acquisition of rights. – (1) In the case of a claim to a right in or over any land referred to in Sec.19, the
Collector shall pass an order admitting or rejecting the same in whole or in part.
(2) If such claim is admitted in whole or in part, the Collector may either
(a) exclude such land from the limits of the proposed sanctuary, or
(b) proceed to acquire such land or rights, except where by an agreement between the owner of such land or
the holder of rights and the Government the owner or holder of such rights has agreed to surrender his rights to
the Government, in or over such land, and payment of such compensation, as is provided in the Land
Acquisition Act, 1894 (1 of 1894)
[4(c) allow, in consultation with the Chief Wildlife Warden, the continuance of any right of any person in, or
over any land within the limits of the sanctuary.]
25. Acqitisition proceedings. – (1) For the purpose of acquiring such land, or rights in or over such land,
(a) the Collector shall be deemed to be a Collector, proceeding under the Land Acquisition Act, 1894 (1 to
1894):
(b) the claimant shall be deemed to be a person interested and appearing before him in pursuance of a notice
given under sec.9 of that Act.
(c) the provisions of the sections preceding Sec.9 of that Act shall be deemed to have been complied with;
(d) where the claimant does not accept the award made in his favour in the matter of compensation, he shall be
deemed, within the meaning of Sec.18 of that Act, to be a person interested who has not accepted the award,
and shall be entitled to proceed to claim relief, against the award under the provision of Part III of that Act;
(e) the Collector, with the consent of the claimant, or the Court, with the consent of both the parties, may
award compensation in land or money or partly in land and partly in money, and
(f) in the case of the stoppage of a public way or a common pasture, the Collector may, with the previous
sanction of the State Government provide for an alternative public way or common pasture, as far as may be
practicable or convenient.
(2) The acquisition under this Act of any land or interest therein shall be deemed to be acquisition for a public
purpose.
26. Delegation of Collector’s powers. – The State Government may, by general or special order, direct that
Page 47 of 91
the powers exercisable or the functions to be performed by the Collector under Sec. 19 to 25 (both inclusive)
may be exercised and performed by such other officer as may be specified in the order.
[5(26A) Declaration of area as Sanctuary. –(1) When –
(a) a notification has been issued under sec.18 and the period for preferring claim has elapsed, and all claims,
if any, made in relation to any land in an area intended to be declared as a sanctuary, have been disposed of by
the State Government; or
(b) any area comprised within any reserve forest or any part of the territorial waters, which is considered by
the State Government to be of adequate ecological, faunal, geomorphological, natural or zoological
significance for the purpose of protecting, propagating or developing wildlife or its environment, is to be
included in a sanctuary, the State Government shall issue a notification specifying the limits of the area which
shall be comprised within the sanctuary and declare that the said area shall be sanctuary on and from such date
as may be specified in the notification.
Provided that where any part of the territorial waters is to be so included, prior concurrence of the Central
Government shall be obtained by the State Government.
Provided further that the limits of the area of the territorial waters to be included in the sanctuary shall be
determined in consultation with the Chief Naval Hydrographer of the Central Government and after taking
adequate measures to protect the occupational interests of the local fishermen.
(2) Notwithstanding anything contained in sub-section (1), the right of innocent passage of any vessel or boat
through the territorial water shall not be affected by the notification issued under sub-section (1).
(3) No alteration of the boundaries of a sanctuary shall be made except on a resolution passed by the
Legislation of the State.]
27. Restriction on entry in sanctuary. – (1) No person other than,
(a) a public servant on duty;
(b) a person who has been permitted by the Chief Wildlife Warden or the authorised officer to reside within
the limits of the sanctuary;
(c) a person who has any right over immovable property within the limits of the sanctuary;
(d) a person passing through the sanctuary along a public highway, and
(e) the dependents of the person referred to in CI. (a), (b) or (c).
shall enter or reside in the sanctuary, except under and in accordance with the conditions of a permit granted
under section 28.
(2) Every person shall, so long as he resides in the sanctuary, be bound
(a) to prevent the commission, in the sanctuary, or an offence against this Act;
(b) where there is reason to believe that any such offence against this Act has been committed in such
sanctuary, to help in discovering and arresting the offender;
(c) to report the death of any wild animal and to safeguard its remains until the Chief Wildlife Warden or the
authorised officer takes charge thereof;
Page 48 of 91
(d) to extinguish any fire in such sanctuary of which he has knowledge or information and to prevent from
spreading by any lawful means in his power , any fire within the vicinity of such sanctuary of which he has
knowledge or information; and
(e) to assist any forest officer, Chief Wildlife Warden, Wildlife Warden or police officer demanding his aid for
preventing the commission of any offence against this Act or in the investigation of any such offence.
[6(3) No person shall, with intent to cause damage to any boundary-mark of a sanctuary or to cause any
wrongful gain as defined in the Indian Penal Code (45 of 1860), alter, destroy, move, or deface such boundarymark.]
[7(4) No person shall tease or molest any wild animal or litter the grounds or sanctuary.]
28. Grant of permit. – (1) The Chief Wildlife Warden may, on application, grant to any person a permit to
enter or reside in a sanctuary for all or any of the following purposes, namely: (a) investigation or study of
wildlife and purposes ancillary or incidental thereto; (b) photography;
(c) scientific research; (d) tourism; (e) transaction of lawful business with any person residing in the sanctuary.
(2) A permit to enter or reside in a sanctuary shall be issued subject to such conditions and on payment of such
fee as may be prescribed.
33. Control of sanctuaries. – The Chief Wildlife Warden shall be the authority who shall control, manage and
maintain all sanctuaries and for that purpose, within the limits of any sanctuary, (a) may construct such roads,
bridges, buildings, fences or barrier gates, and carry out such other works as he may consider necessary for the
purposes of such sanctuary; (b) shall take such steps as will ensure the security of wild animals in the
sanctuary and the preservation of the sanctuary and wild animals, therein; (c) may take such measures, in the
interests of wildlife, as he may consider necessary for the improvement of any habitat. (d) may regulate,
control or prohibit, in keeping with the interests of wildlife, the grazing or movement of [livestock]. …
35. Declaration of National Parks. – (1) Whenever it appears to the State Government that an area, whether
within a sanctuary or not, is, by reason of its ecological, faunal, floral, geomorphological, or zoological
association or importance, needed to be constituted as a National Park for the purpose of protectin&
propagating or developing wildlife therein or its environment, it may, by notification, declare its intention to
constitute such area as a National Park.
[11(1) Provided that where any part of the territorial waters is proposed to be included in such National Park,
the provisions of Sec.26A shall, as far as may be, apply in relation to the declaration of a National Park as they
apply in relation to the declaration of a sanctuary.]
(2) The notification referred to in sub-section (1) shall define the limits of the area which is intended to be
declared as a National Park.
(3) Whereas any area is intended to be declared as a National Park, the provisions of Sec. [1219 to 26-A (both
inclusive except clause (c) of sub-section (2) of section 24)] shall, as far as may be, apply to the investigation
and determination of claims and extinguishment of rights, in relation to any land in such area as they apply to
the said matters in relation to any land in a sanctuary.
(4) When the following events have occurred, namely
(a) the period for preferring claims has elapsed, and all claims, if any, made in relation to any land in an area
intended to be declared as a National Park, have been disposed of by the State Government, and
(b) all rights in respect of lands proposed to be included in the National Park have become vested in the State
Government, the State Government shall publish a notification specifying the limits of the area which shall be
comprised within the National Park and declare that the said area shall be a National Park on and from such
Page 49 of 91
date as may be specified in the notification.
(5) No alteration of the boundaries of a National Park shall be made except on a resolution passed by the
Legislature of the State.
(6) No person shall, destroy, exploit, or remove any wildlife from a National Park or destroy or damage the
habitat or any wild animal or deprive any wild animal or its habitat within such National Park except under
and in accordance with a permit granted by the Chief Wildlife Warden and no such permit shall be granted
unless the State Government, being satisfied that such destruction, exploitation, or removal of wildlife from
the National Park is necessary for the improvement and better management of wildlife therein, authorises the
issue of such permit.
(7) No grazing of any [livestock13] shall be permitted in a National Park and no livestock shall be allowed to
enter except where such [livestock] is used as a vehicle by a person authorised to enter such National Park.
(8) The provisions of secs. 27 and 28, secs.30 to 32 (both inclusive), and CIS, (a), (b) and (c) of [Sec.33,
33A14] and sec.34 shall, as far as may be, apply in realtion to a National Park as they apply in relation to a
sanctuary.
India -- The Wild Life (Protection) Amendment Act, 2002 (selected sections)
Substitution of New Section for Section 29
15. For section 29 of the principal Act, the following section shall be substituted, namely:–
Destruction etc., in a Sanctuary Prohibited without a Permit
"29. No person shall destroy, exploit or remove any wild life including forest produce from a sanctuary or
destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the
flow of water into or outside the sanctuary, except under and in accordance with a permit granted by the Chief
Wild Life Warden, and no such permit shall be granted unless the State Government being satisfied in
consultation with the Board that such removal of wild life from the sanctuary or the change in the flow of
water into or outside the sanctuary is necessary for the improvement and better management of wild life
therein, authorises the issue of such permit:
Provided that where the forest produce is removed from a sanctuary the same may be used for meeting the
personal bonafide needs of the people living in and around the sanctuary and shall not be used for any
commercial purpose.
Explanation- For the purposes of this section, grazing or movement of livestock permitted under clause (d) of
section 33 shall not be deemed to be an act prohibited under this section.".
Amendment of Section 33
16. In section 33 of the principal Act after clause (a), the following proviso shall be inserted, namely:–
"Provided that no construction of commercial tourist lodges, hotels, zoos and safari parks shall be undertaken
inside a sanctuary except with the prior approval of the National Board;".
Insertion of New Section 34A
18. After section 34 of the principal Act, the following section shall be inserted, namely-:–
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Power to Remove Encroachment
"34A., (1) Notwithstanding anything contained in any other law for the time being in force, any officer not
below the rank of an Assistant Conservator of Forests may,–
(a) evict any person from a sanctuary or National Park, who unauthorisedly occupies Government land in
contravention of the provisions of this Act;
(b) remove any unauthorised structures, buildings, or constructions erected on any Government land within
any sanctuary or National Park and all the things, tools and effects belonging to such person shall be
confiscated, by an order of an officer not below the rank of the Deputy Conservator of Forests:
Provided that no such order shall be passed unless the affected person is given an opportunity of being heard.
(2) The provisions of this section shall apply notwithstanding any other penalty which may be inflicted for
violation of any other provision of this Act.".
Amendment of section 35
19. In section 35 of the principal Act,–
(i) for sub-sections (5) and (6), the following sub-sections shall be substituted, namely:–
"(5) No alteration of the boundaries of a National Park by the State Government-shall be made except on a
recommendation of the National Board.
(6) No person shall destroy, exploit or remove any Wild Life including forest produce from a National Park or
destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the
flow of water into or outside the National Park, except under and in accordance with a permit granted by the
Chief Wild Life Warden, and no such permit shall be granted unless the State Government being satisfied in
consultation with the National Board that such removal of wild life from the National Park or the change in the
flow of water into or outside the National Park is necessary for the improvement and better management of
wild life therein, authorises the issue of such permit:
Provided that where the forest produce is removed from a National Park, the same may be used for meeting the
personal bona fide needs of the people living in and around the National Park and shall not be used for any
commercial purpose.";
(ii) after sub-section (8), the following Explanation shall be inserted, namely:–
"Explanation.-For the purposes of this section, in case of an area, whether within a sanctuary or not, where the
rights have been extinguished and the land has become vested in the State Government under any Act or
otherwise, such area may be notified by it, by a notification, as a National Park and the proceedings under
sections 19 to 26 (both inclusive) and the provisions of sub-sections (3) and (4) of this section shall not
apply.".
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Nepal - Environment Protection Act, 1997 (selected sections)
2. Definitions Unless the subject or context otherwise requires, in this Act;
(a) "Environment" means the interaction and inter-relationship among the components of natural, cultural and
social systems, economic and human activities and their components.
(b) "Pollution" means the activities that significantly degrade, damage the environment or harm on the
beneficial or useful purpose of the environment, by changing the environment, directly or indirectly.
(c) "Protection" means the safety care maintenance, promotion, management and proper utilization of the
environment and national heritage.
(d) "Proposal" means a proposal prepared in regard to the carrying out of such development work, physical
activity that may bring about change in the existing environmental conditions or any plan, project or
programme which changes the land uses
(e) "Proponent" means a person, governmental, semi-governmental or non-governmental agency or institution
applying for approval of a proposal and getting approval for the implementation of such a proposal.
(f) "Initial Environmental Examination" means a report on analytical study or evaluation to be prepared to
ascertain as to whether, in implementing a proposal, the proposal does have significant adverse impacts on the
environment or not, whether such impacts could be avoided or mitigated by any means or not.
(g) "Environmental Impact Assessment" means a report on detailed study and evaluation to be prepared to
ascertain as to whether, in implementing a proposal, the proposal does have significant adverse impacts on the
environment or not, whether such impacts could be avoided or mitigated by any means or not.
(h) "Wastes" means the liquid, solid, gas, slurry, smoke, dust, radiated element or substance or similar other
materials disposed in a manner to degrade the environment.
(i) "Disposal" means the act of emission, storage, or disposal of sound, heat or wastes.
(j) "Biological Diversity" means ecosystem diversity, species diversity and genetic diversity.
(k) "National Heritage" means any such object, site, plant and animal related with the environment available
within the Kingdom of Nepal as is likely to be important to the human being from natural, cultural, historical
archaeological, scientific, spiritual, aesthetic or social point of view.
(l) "Ministry" means the Ministry of Population and Environment of His Majesty's Government.
(m) "Prescribed" or "As prescribed" means prescribed or as prescribed in the rules framed under this Act.
7. Prevention and Control of Pollution (1) Nobody shall create pollution in such a manner as to cause significant adverse impacts on the environment
or likely to be hazardous to public life and people's health, or dispose or cause to be disposed sound, heat
radioactive rays and wastes from any mechanical devices, industrial enterprises, or other places contrary to the
prescribed standards.
(2) If it appears that anyone has carried out any act contrary to sub-section (1) and caused significant adverse
impacts on the environment, the concerned agency may prescribed necessary terms in regard thereto or may
prohibit the carrying out of such an act.
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(3) If it appears that the use of any types of substance, fuel tools or device has caused or is likely to cause
significant adverse impacts on the environment, the Ministry may, by a notification in the Nepal Gazette,
forbid the use of such substance, fuel, tools or device.
(4) Other provision relating to the prevention and control of pollution shall be as prescribed.
18. Punishment (1) In case any person carries out any act without getting a proposal approved under Section 6 or any act
contrary to the approved proposal, the prescribed authority may close down such act immediately, and if any
person or organization has done such act, may according to the degree of offence punish him with a fine up to
one hundred thousand rupees.
(2) In case any person commits any other acts under this Act or the Rules or guidelines framed hereunder, the
prescribed authority may require to close down such act immediately, and if any person or organization has
done such act, punish him, according to the degree of the offence, with a fine up to fifty thousand rupees.
19. Appeal A person who is not satisfied with the decision or order made by the prescribed authority may appeal to the
concerned Appellate Court within thirty five days from the date of the decision or order.
Nepal – National Parks and Wildlife Conservation Act, 1973 (selected sections)
Preamble: Whereas it is expedient to make provisions of national parks, conservation of wildlife and their
habitats, control in the hunting, protection, conservation, development as well as in the proper management
and utilization of the places of special importance from the viewpoint of natural beauties and for the
maintenance of goods conduct and convenience of the general publc.
Now, therefore, His Majestry King Birendra Bir Bikram Shah Dev has enacted this Act on the advice and
consent of the National Panchayat.
3.
Declaration of National Parks Protected Area or Reserve by His Majesty’s Govt.
(1).
His Majesty’s Government may, if it deems necessary, declare any area of land as a National Park
Protected Area or Reserve along with its four boundaries thereof by a notification in the Nepal Gazette.
(2).
His Majesty’s Government may alienate or transfer ownership of or alter the boundaries of a National
Park Protected Area or Reserve declared under sub-section (1) by a notification in the Nepal Gazette.
5.
Prohibited Acts
No person unless in possession of written permission of an authorized authority shall commit any of the
following acts within a National Park or Reserve:
(a)
Hunt any wildlife or bird;
(b)
Build or occupy any house, hut, shelter or other structure of whatever materials;
(c)
Occupy, clear, cultivate or plant any part of land, grow or harvest any crops;
(d)
Pasture or water and domesticated animal or bird;
(e)
Cut, fell, remove, girdle, burn or otherwise damage any tree, plant, bush or any other forest products;
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(f)
Mine, quarry or remove any minerals, stone, gravel, earth or other such substances;
(g)
Damage any forest product wildlife, bird or land;
(h)
Use or carry any weapon, ammunition or poison
(i)
Introduce any domesticated or other animal or trophy other than by a Government official on duty or
by a person traveling having authorized right of way through a National Park or Reserve.
(j)
Obstruct or divert any river, stream or other source of water flowing in the National Park or introduce
harmful or explosive substances therein.
6.
Operation of Services within a National Park or Reserve
(1)
His Majesty’s Government may in the best interests of a National Park or Reserve or protected area
either directly by itself or by a contract by abiding the prescribed procedures, with any other person make
provision for hotels, lodges, public transport or any other such services or amenities within a National Park.
(2)
No person without entering into a contract under Sub-section (1) shall operate any kind of service or
amenities within a National Park or reserve or protected area.
Pakistan Environmental Protection Act (PEPA), 1997 (selected sections)
2. Definitions –
In this Act, unless there is anything repugnant in the subject or context:
(i) "adverse environmental effect" means impairment of, or damage to, the environment and includes: (a)
impairment of, or damage to, human health and safety or to biodiversity or property; (b) pollution; and (c) any
adverse environmental effect as may be specified in the regulation.
(ii) "agricultural waste" means waste from farm and agricultural activities including poultry, cattle farming,
animal husbandry, residues from the use of fertilizers, pesticides and other farm chemicals;
(iii) "air pollutant" means any substance that causes pollution of air and includes soot, smoke, dust particles,
odor, light, electro-magnetic, radiation, heat, fumes, combustion exhaust, exhaust gases, noxious gases,
hazardous substances and radioactive substances;
(iv) "biodiversity" or "biological diversity" means the variability among living organizations from all sources,
including inter alia terrestrial, marine and other aquatic ecosystems and ecological complexes of which they
are part; this includes diversity within species, between species and of ecosystems;
(v) "council" means the Pakistan Environmental Protection Council established under section 3;
(vi) "discharge" means spilling, leaking, pumping, depositing, seeping, releasing, flowing out, pouring,
emitting, emptying or dumping;
(vii) "ecosystem" means a dynamic complex of plant, animal and micro-organism communities and their nonliving environment interacting as a functional unit;
(viii) "effluent" means any material in solid, liquid or gaseous form or combination thereof being discharged
from industrial activity or any other source and includes a slurry, suspension or vapour;
(ix) "emission standards" means the permissible standards established by the Federal Agency or a Provincial
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Agency for emission of air pollutants and noise and for discharge of effluent and waste;
(x) "environment" means- (a) air, water and land; (b) all layers of the atmosphere; (c) all organic and inorganic
matter and living organisms; (d) the ecosystem and ecological relationships; (e) buildings, structures, roads,
facilities and works; (f) all social and economic conditions affecting community life; and (g) the interrelationships between any of the factors in sub-clauses (a) to (f)
(xi) "environmental impact assessment" means an environmental study comprising collection of data,
prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive,
mitigatory and compensatory measures, formulation of environmental management and training plans and
monitoring arrangements, and framing of recommendations and such other components as may be prescribed;
(xii) " Environmental Magistrate" means the Magistrate of the First Class appointed under section 24;
(xiii) "Environmental Tribunal" means the Environmental Tribunal constituted under section 20;
(xiv) Exclusive Economic Zone" shall have the same meaning as defined in the Territorial Waters and
Maritime Zones Act, 1976 (LXXXII of 1976);
(xv) "factory" means any premises in which industrial activity is being undertaken;
(xvi) "Federal Agency" means the Pakistan Environmental Protection Agency established under section 5, or
any Government Agency, local council or local authority exercising the powers and functions of the Federal
Agency;
(xvii) "Government Agency" includes- (a) a division, department, attached department, bureau, section,
commission, board, office or unit of the Federal Government or a Provincial Government; (b) a development
or a local authority, company or corporation established or controlled by the Federal Government or Provincial
Government; (c) a Provincial Environmental Protection Agency; and (d) any other body defined and listed in
the Rules of Business of the Federal Government or a Provincial Government;
(xviii) "hazardous substance" means- (a) a substance or mixture of substance, other than a pesticide as defined
in the Agricultural Pesticide Ordinance, 1971 (II of 1971), which, by reason of its chemical activity is toxic,
explosive, flammable, corrosive, radioactive or other characteristics causes, or is likely to cause, directly or in
combination with other matters, an adverse environmental effect; and (b) any substance which may be
prescribed as a hazardous substance;
(xix) "hazardous waste" means waste which is or which contains a hazardous substance or which may be
prescribed as hazardous waste, and includes hospital waste and nuclear waste;
(xx) "historic waters" means such limits of the waters adjacent to the land territory of Pakistan as may be
specified by notification under section 7 of the Territorial Waters and Maritime Zones Act, 1976 (LXXXII of
1976);
(xxi) "hospital waste" includes waste medical supplies and materials of all kinds, and waste blood, tissue,
organs and other parts of the human and animal bodies, from hospitals, clinics and laboratories;
(xxii) "industrial activity" means any operation or process for manufacturing, making, formulating,
synthesizing, altering, repairing, ornamenting, finishing, packing or otherwise treating any article or substance
with a view to its use, sale, transport, delivery or disposal, or for mining, for oil and gas exploration and
development, or for pumping water or sewage, or for generating, transforming or transmitting power or for any
other industrial or commercial purpose;
(xxiii) "industrial waste" means waste resulting from an industrial activity;
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(xxiv) "initial environmental examination" means a preliminary environmental review of the reasonably
foreseeable qualitative and quantitative impacts on the environment of a proposed project to determine
whether it is likely to cause an environmental effect for requiring preparation of an environmental impact
assessment;
(xxv) "local authority" means any agency set-up or designated by the Federal Government or a Provincial
Government by notification in the official Gazette to be a local authority for the purposes of this Act;
(xxvi) "local council" means a local council constituted or established under a law relating to local
government;
(xxvii) "motor vehicle" means any mechanically propelled vehicle adapted for use upon land whether its
power of propulsion is transmitted thereto from an external or internal source, and includes a chassis to which
a body has not been attached, and a trailer, but does not include a vehicle running upon fixed rails;
(xxviii) "municipal waste" includes sewage, refuse, garbage, waste from abattoirs, sludge and human excreta
and the like;
(xxix) "National Environmental Quality Standards" means standards established by the Federal Agency under
clause (e) of sub-section (1) of section 6 and approved by the Council under clause (c) of sub-section (1) of
section 4;
(xxx) "noise" means the intensity, duration and character from all sources, and includes vibrations;
(xxxi) "nuclear waste" means waste from any nuclear reactor or nuclear or other nuclear energy system,
whether or not such waste is radioactive;
(xxxii) "person" means any natural person or legal entity and includes an individual, firm, association,
partnership, society, group, company, corporation, co-operative society, Government Agency, nongovernmental organization, community-based organization, village organization, local council or local
authority and, in the case of a vessel, the master or other person having for the time being the charge or control
of the vessel;
(xxxiii) "pollution" means the contamination of air, land or water by the discharge or emission or effluents or
wastes or air pollutants or noise or other matter which either directly or indirectly or in combination with other
discharges or substances alters unfavourably the chemical, physical, biological, radiational, thermal or
radiological or aesthetic properties of the air, land or water or which may, or is likely to make the air, land or
water unclean, noxious or impure or injurious, disagreeable or detrimental to the health, safety, welfare or
property of persons or harmful to biodiversity;
(xxxiv) “prescribed” means prescribed by rules made under this Act;
(xxxv) “project” means any activity, plan, scheme, proposal or undertaking involving any change in the
environment and includes; (a) construction or use of buildings or other works; (b) construction or use of roads
or other transport systems; (c) construction or operation of factories or other installations; (d) mineral
prospecting, mining, quarrying, stone-crushing, drilling and the like; (e) any change of land use or water use;
and (f) alteration, expansion, repair, decommissioning or abandonment of existing buildings or other works,
roads or other transport systems; factories or other installations;
(xxxvi) “proponent” means the person who proposes or intends to undertake a project;
(xxxvii) “Provincial Agency” means a Provincial Environmental Protection Agency
established under section 8;
(xxxviii) “regulations” means regulations made under this Act;
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(xxxix) “rules” means rules made under this Act;
(xl) “sewage” means liquid or semi-solid wastes and sludge from sanitary conveniences, kitchens, laundries,
washing and similar activities and from any sewerage system or sewage disposal works;
(xli) “standards” means qualitative and quantitative standards for discharge of effluents and wastes and for
emission of air pollutants and noise either for general applicability or for a particular area, or from a particular
production process, or for a particular product, and includes the National Environmental Quality Standards,
emission standards and other standards established under this Act and the rules and regulations made
thereunder;
(xlii) “sustainable development” means development that meets the needs of the present generation without
compromising the ability of future generations to meet their needs;
(xliii) “territorial waters” shall have the same meaning as defined in the Territorial Waters and Maritime Zones
Act, 1976 (LXXXII of 1976);
(xliv) “vessel” includes anything made for the conveyance by water of human beings or of goods; and
(xlv) “waste” means any substance or object which has been, is being or is intended to be,
discarded or disposed of, and includes liquid waste, solid waste, waste gases, suspended waste, industrial
waste, agricultural waste, nuclear waste, municipal waste, hospital waste, used polyethylene bags and residues
from the incineration of all types of waste.
11. Prohibition of Certain Discharges or Emissions –
(1) Subject to the provisions of this Act and the rules and regulations made thereunder no person shall
discharge or emit or allow the discharge or emission of any effluent or waste or air pollutant or noise in an
amount, concentration or level which is in excess of the National Environmental Quality Standards or, where
applicable, the standards established under subclause (i) of clause (g) of sub-section (1) of section 6.
(2) The Federal Government levy a pollution charge on any person who contravenes or fails to comply with
the provisions of sub-section (1), to be calculated at such rate, and collected in accordance with such procedure
as may be prescribed.
(3) Any person who pays the pollution charge levied under sub-section (2) shall not be charged with an
offence with respect to that contravention or failure.
(4) The provisions of sub-section (3) shall not apply to projects which commenced industrial activity on or
after the thirtieth day of June, 1994.
16. Environmental Protection Order –
(1) Where the Federal Agency or a Provincial Agency is satisfied that the discharge or emission of any
effluent, waste, air pollutant or noise, or the disposal of waste, or the handling of hazardous substances, or any
other act or omission is likely to occur, or is occurring or has occurred in violation of the provisions of this
Act, rules or regulations or of the conditions of a licence, and is likely to cause, or is causing or has caused an
adverse environmental effect, the
Federal Agency or, as the case may be, the Provincial Agency may, after giving the person responsible for
such discharge, emission, disposal, handling, act or omission an opportunity of being heard, by order direct
such person to take such measures that the Federal Agency or Provincial Agency may consider necessary
within such period as may be specified in the order.
(2) In particular and without prejudice to the generality of the foregoing power, such measures may include:
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(a) immediate to stoppage, preventing, lessening or controlling the discharge, emission, disposal, handling, act
or omission, or to minimize or remedy the adverse environmental effect; (b) installation, replacement or
alteration of any equipment or thing to eliminate or control or abate on a permanent or temporary basis, such
discharge, emission, disposal, handling, act or omission; (c) action to remove or otherwise dispose of the
effluent, waste, air pollutant, noise, or hazardous substances; and (d) action to restore the environment to the
condition existing prior to such discharge, disposal, handling, act or omission, or as close to such condition as
may be reasonable in the circumstances, to the satisfaction of the Federal Agency or Provincial Agency.
(3) Where the person, to whom directions under sub-section (1) are given, does not comply therewith, the
Federal Agency or Provincial Agency may, in addition to the proceeding initiated against him under this Act
or the rules and regulations, itself take or cause to be taken such measures specified in the order as it may
deems necessary, and may recover the costs of taking such measures from such person as arrears of land
revenue.
Pakistan – National Environmental Quality Standards
National Environmental Quality Standards for Municipal and Liquid Industrial Effluents
See pages 59 to 60 of this Chapter.
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Sri Lanka - National Environmental Act, 1980, 1988 (Selected sections)
PART IV B - ENVIRONMENTAL QUALITY
23G. Subject to section 23A of this Act with effect from the relevant date, no person shall deposit or emit
waste into the inland waters of Sri Lanka, except in accordance with such standards or criteria as may be
prescribed under this Act.
23H. (1) No person shall pollute any inland waters of Sri Lanka or cause or permit to cause pollution in the
inland waters of Sri Lanka so that the physical, chemical or biological condition of the waters is so changed as
to make or reasonably expected to make those waters or any part of those waters unclean, noxious, poisonous,
impure, detrimental to health, welfare, safety or harmful to animals, birds, wildlife, fish, plants or other forms
of life or detrimental to any beneficial use made of those waters.
(2) Without limitation to the generality of subsection (1) a person shall be deemed to contravene the provisions
of that subsection, if—
(a) he places in or any waters or in a place where it may gain access to any waters any matter, whether solid,
liquid, gaseous, that is prohibited by or under this Act or by any regulations made thereunder; (b) he places
any waste, whether solid, liquid, or gaseous, in a position where it falls, descends, drains, evaporates, is
washed, is blown or percolates, is likely to fall, descend, drain evaporate, be washed, be blown, percolate into
any waters or on the bed of any river, stream or other waterway when dry, or knowingly or through his
negligence, whether directly or indirectly, causes or permits on such matter to place in such a position; (c) he
places waste on the bed, when dry, of any river, stream or other waterway or knowingly or through his
negligence causes or permits any wastes to be placed on such a bed; or (d) he causes the temperature or inland,
coastal or off-shore waters of Sri Lanka to be raised or lowered by more than the prescribed limits.
(3) Every person who contravenes the provisions of subsection (1) shall be guilty of an offence, and on
conviction shall be—
(a) liable to a fine not less than rupees ten thousand and not exceeding rupees one hundred thousand, and
thereafter in the event of the offence being continued to be committed, to a fine of rupees five hundred for
each day on which the offence is so continued to be committed; and (b) required to take within such period as
may be determined by court, such corrective measures as may be deemed necessary to prevent further damage
being caused to the inland, coastal and offshore waters of Sri Lanka and furnish at the end of such period
sufficient and acceptable proof of the incorporation of such corrective measures. The court shall also order
such person convicted, to bear the expenses that may have been incurred by the authority in the correction of
damage already caused as a consequence of the commission of such offence, and where such person fails to
bear the expenses so incurred be recovered in like manner as a fine imposed by the court.
(4) Where any person convicted of an offence under subsection (3) continues to commit such offence after a
period of six weeks from the date of his conviction, the court may upon an application for closure being made
by the Director-General or any officer authorized in that behalf by the Director-General order the closure of
such factory or trade, or business being carried at such premises, which caused the pollution of inland, coastal
or offshore waters of Sri Lanka, until such time such person takes adequate corrective measures to prevent
further damage being caused.
(5) In any case where such person fails to comply with the closure order issued under subsection (4), the
Magistrate shall forthwith order the fiscal of the court requiring and authorizing such fiscal before a date
specified in such order not being a date earlier than three or later than seven clear days from the date of issue
of such order to close such factory or trade or business being carried at such premises. Such order shall be
sufficient authority for the said fiscal or any police officer authorized by him in that behalf to enter the
premises with such assistants as the fiscal or such police officer shall deem necessary to close such factory or
trade or business being carried at such premises.
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23J. Subject to section 23A of this Act with effect from the relevant date, no person shall discharge or emit
waste into the atmosphere except in accordance with such standards or criteria as may be prescribed under this
Act.
23K. (1) No person shall pollute the atmosphere or cause or permit the atmosphere to be polluted so that the
physical, chemical or biological condition of the atmosphere is so changed as to make or reasonably be
expected to make the atmosphere or any part thereof unclean, noxious, poisonous, impure, detrimental to the
health, welfare, safety, or property of human beings, poisonous or harmful to animals, birds, wildlife, plant or
all other forms of life or detrimental to any beneficial use of the atmosphere.
(2) Without limitation to the generality of subsection (1) a person shall be deemed to contravene that
subsection if—
(a) he places in or in such manner that it may be released into the atmosphere, any matter, whether liquid,
solid, or gaseous, that is prohibited by or under this Act or by any regulation made thereunder to be placed in
the atmosphere or does not comply with any regulations prescribed therefore under this Act; (b) he causes or
permits the discharge of odours which by virtue of their nature, concentration, volume, or extent are obnoxious
or unduly offensive to the sense of human beings; (c) he burns, wastes otherwise than at times of in the manner
or place prescribed; (d) he uses an internal combustion engine or fuel burning equipment not equipped with
any device required by the regulations to be fitted to such engine for the prevention or reduction of pollution;
or (e) he uses or burns any fuel which is prohibited by regulations made under this Act.
(3) Every person who contravenes the provisions of subsection (1) shall be guilty of an offence, and on
conviction shall be— (a) liable to a fine not less than rupees ten thousand and not exceeding rupees one
hundred thousand and thereafter in the event of the offence being continued to be committed, to a fine of
rupees five hundred for each day on which the offence is so continued to be committed; (b) required to take
within such period as may be determined by court, such corrective measures may be deemed necessary, to
prevent further damage being caused by the pollution of atmosphere, and furnish at the end of such period
sufficient and acceptable proof of the incorporation of such corrective measures. The court shall also require
such person convicted to bear the expenses incurred by the authority in the correction of damage already
caused as a result of the commission of such offence.
(4) Where any person convicted of an offence under subsection (3) continues to commit such offence after a
period of six weeks from the date of his conviction, the court may upon an application for closure being made
by the Director-General or any officer authorized in that behalf by the Director-General order the closure of
such factory, trade or business being carried at such premises which cause the pollution of atmosphere until
such time, such person takes adequate corrective measures to prevent further damage being caused.
(5) In any case where such person fails to comply with the closure order issued under subsection (3), the
Magistrate shall forthwith order the fiscal of the court requiring and authorizing such fiscal, before a date
specified in such order not being a date earlier than three or later than seven clear days from the date of issue
of such order to close such factory or trade or business being carried at such premises. Such order shall be
sufficient authority for the said fiscal or any police officer authorized by him in that behalf to enter the
premises with such assistants as the fiscal or such police officer shall deem necessary to close such factory or
trade or business being carried at such premises.
23L. Any person who owns, uses, operates, constructs, sells, installs or offers to sell or install any machinery,
vehicle or boat required by or under this Act or any regulation made thereunder to be built, fitted or equipped
with any device for preventing or limiting pollution of the atmosphere with out such machinery, vehicle or
boat being so built, fitted or equipped shall be guilty of an offence. All devices built, fitted or equipped under
this section shall be maintained and operated at the cost of the owner.
23M. Subject to section 23A, of this Act, with effect from the relevant date, no person shall discharge or
deposit waste into the soil, except in accordance with such standards or criteria as may be prescribed under this
Act.
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23N. (1) No person shall pollute or cause or permit to be polluted any soil or the surface of any land so that the
physical, chemical or biological condition of the soil or surface is so changed as to make or be reasonably
expected to make the soil or the produce of the soil poisonous or impure, harmful or potentially harmful to the
health or welfare of human beings, poisonous or harmful to animals, birds, wildlife, plants or call other forms
of life or obnoxious or, unduly offensive to the senses of human beings or so as to be detrimental to any
beneficial use of the land.
(2) Without limitation to the generality of subsection (1) a person shall be deemed to contravene that
subsection if—
(a) he places in or on any soil or in any place where it may gain access to any soil, any matter, whether liquid,
solid or gaseous, that is prohibited by or under this act or any regulation made thereunder or does not comply
with such regulations as may be prescribed; and
(b) he establishes on any land a refuse dump, garbage tip, soil and rock disposal site, sludge deposit site, waste
injection well, or otherwise uses land for the disposal of or repository for solid or liquid wastes so as to be
obnoxious or unduly offensive to the sense of human beings or will pollute or adversely affect underground
water or be detrimental to any beneficial use of the soil or the surface of the land.
(3) Prior exemptions may, however, be granted for valid reasons such as the application of an approved
preparation in a prescribed manner for the control of a given pest, provided that such treatment does not
damage the soil seriously.
(4) Any person who contravenes any of the provisions of this section shall be guilty of an offence and on
conviction be liable to a fine not less than rupees ten thousand and not exceeding rupees one hundred thousand
an din the case of a continuing offence to a fine of rupees five hundred for every day on which the offence
continues after conviction. …
23S. Where the Authority is of opinion that the circumstances are such that any litter deposited in any place,
whether public or private, is or is likely to become detrimental to the health, safety or welfare of members of
the public, unduly offensive to the senses of human beings or a hazard to the environment, the Authority may
by notice in writing direct the person who, is responsible for depositing such litter or any public authority
whose function is to dispose of or remove such litter, to remove or dispose of such litter or to take such action
in relation to such litter as may be specified in the notice. For the purposes of this section “litter” means
unwanted waste material whether a by product which has arisen during a manufacturing process or a product
which has passed its useful working life and has been discarded.
23T. The cost of removing or otherwise disposing of or reducing litter pursuant to a notice given under section
23S may be recovered in any court of competent jurisdiction against any person proved to have deposited the
litter, as a debt due to the Authority and when recovered shall be paid to the fund of the Authority.
23U. Any person to whom a notice in writing under section 23S is directed and who fails without reasonable
cause to comply with the requirements of the notice shall, if proved be guilty of an offence.
23V. (1) No person shall discharge or spill any oil or mixture containing oil into the inland waters of Sri
Lanka.
(2) Any person who contravenes the provisions of subsection (1) shall be liable on conviction to a fine not less
than rupees ten thousand and not exceeding rupees one hundred thousand or to imprisonment for a term not
exceeding two years.
PART IV C, APPROVAL OF PROJECTS
23Y. For the purposes of this Part of this Act, the Minster may by Order published in the Gazette specify the
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state agencies (hereinafter in this Part referred to as “project approving agencies”) which shall be the project
approving agencies.
23Z. The Minister shall by Order published in the Gazette determine the projects and undertakings hereinafter
referred to as “prescribed projects”) in respect of which approval would be necessary under the provisions of
this Part of this Act.
23AA. (1) Notwithstanding the provisions of any other written law, from and after the coming into operation
of this Act, all prescribed projects that are being undertaken in Sri Lanka by any Government department,
corporation, statutory board, local authority, company, firm or an individual will be required to obtain
approval under this Act for the implementation of such prescribed projects.
(2) The approval referred to in subsection (1) shall have to be obtained from the appropriate project approving
agencies concerned or connected with such prescribed project:
Provided however, in respect of certain prescribed projects to be determined by the Minster, the project
approving agency will grant its approval only with the concurrence of the Authority.
23BB. (1) It shall be the duty of all projects approving agencies to require from any Government department,
corporation, statutory board, local authority, company, firm or individual who submit any prescribed project
for its approval to submit within a specified time an initial environmental examination report or an
environmental impact assessment report as required by the project approving agency relating to such project
and containing such information and particulars as may be prescribed by the Minister for the purpose.
(2) A project approving agency shall on receipt of an initial examination report or an environmental impact
assessment report, as the case may be, submitted to such project approving agency in compliance with the
requirement imposed under subsection (1), by notice published in the Gazette and in one newspaper each in
Sinhala, Tamil and English languages, notify the place and times at which such report shall be available for
inspection by the public, and invite the public to make its comments, if any, thereon.
(3) Any member of the public may within thirty days of the date on which a notice under subsection (2) is
published make his or its comments, if any, thereon to the project approving agency which published such
notice, and such project approving agency may, where it considers appropriate in the public interest afford an
opportunity to any such person of being heard in support of his comments, and shall have regard to such
comments and any other materials if any, elicited an any such hearing, in determining whether to grant its
approval for the implementation of such prescribed project.
(4) Where approval is granted for the implementation of any prescribed project, such approval shall be
published in the Gazette and in one newspaper each in Sinhala, Tamil and English languages.
23CC. The project approving agencies shall determine the procedure it shall adopt in approving any prescribed
projects submitted to it for approval. Such procedure shall be based on the guidelines prescribed by the
Minister for such purpose.
23DD. (1) Where a project approving agency refuses to grant approval for any prescribed project submitted for
its approval, the person or body of persons aggrieved shall have a right to appeal against such decision to the
Secretary to the Ministry, of the Minister.
(2) The decision of the Secretary to the Ministry on such appeal of the Minister shall be final.
23EE. Where any alterations are being made to any prescribed project for which approval had been granted or
where any prescribed project already approved is being abandoned, the Government department, corporation,
statutory board, local authority, company, firm or individual who obtained such approval, shall inform the
appropriate project approving agency of such alterations, or the abandonment of the case may be, and where
necessary obtain fresh approval in respect of any alternations that are intended to be made to such prescribed
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project for which approval had already been granted:
Provided however, where such prescribed project that is being abandoned or altered is a project approved with
the concurrence of the Authority, the Authority should also be informed of it and any fresh approval that need
to be obtained should be given only with the concurrence of the Authority.
23FF. It shall be the duty of all projects approving agencies to forward to the Authority a report on each
prescribed project for which approval is granted by such agency.
Sri Lanka -- Criminal Procedure Code (Selected sections)
CHAPTER IX - PUBLIC NUISANCE
A.—ORDERS FOR REMOVAL OR ABATEMENT IN CASES OF NUISANCE
98. (1) Whenever a Magistrate considers on receiving a report or other information and on taking such
evidence (if any) as he thinks fit—
(a) that any unlawful obstruction or nuisance should be removed from any way, harbour, lake, river, or channel
which is or may be lawfully used by the public or from any public place; or
(b) that any trade or occupation or the keeping of any goods or merchandise should by reason of its being
injurious to the health or physical comfort of the community be suppressed or removed or prohibited; or
(c) that the construction of any building or the disposal of any substance should as being likely to occasion
conflagration or explosion be prevented or stopped; or
(d) that any building or tree is in such a condition that it is likely to fall and thereby cause injury to persons
living or carrying on business in the neighbourhood or passing by and that in consequence its removal, repair,
or support is necessary; or
(e) that any tank, well, or excavation adjacent to any such way or public place should be fenced in such a
manner as to prevent danger from arising to the public,
such Magistrate may make a conditional order requiring that the person causing such obstruction or nuisance
or carrying on such trade or occupation or keeping any such goods or merchandise or owning, possessing, or
controlling such building, substance, tree, tank, well, or excavation shall within a time to be fixed by such
order—
(i) remove such obstruction or nuisance; or (ii) suppress or remove such trade or occupation; or (iii) remove
such goods or merchandise; or (iv) prevent or stop the construction of such building; or (v) remove, repair, or
support it; or (vi) alter the disposal of such substance; or (vii) remove such tree; or (viii) fence such tank, well
or excavation as the case may be.
(2) Any person against whom a conditional order has been made under subsection (1) may appear before the
Magistrate making that order or any other Magistrate of that court before the expiration of the time fixed by
that order and move to have the order set aside or modified in manner hereinafter provided.
(3) Any order duly made under this section shall not be called in question in any civil court.
(4) For the purpose of this section a “public place” includes also property belonging to the State or a
corporation or vested in any public officer or department of State for public purposes and ground left
unoccupied for- sanitary or recreative purposes.
99. (1) The order and any other order or notice made or given under this Chapter shall if practicable be served
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on the person against whom it is made or to whom it is to be given in manner herein provided for service of a
summons.
(2) If such order cannot be so served a copy thereof shall be posted up at such place or places as the court may
consider fittest for conveying the information to such person.
100. (1) The person against whom such order is made shall within the time specified therein—
(a) perform the act directed thereby ; or
(b) act under subsection (2) of section 98.
(2) If such person does not perform such act or appear and move to have the order set aside or modified as
required by subsection (1) he shall be liable to the penalty prescribed in that behalf in section 185 of the Penal
Code and the order shall be made absolute;
Provided that if such person be a corporate body every director thereof shall be liable to the penalty
hereinbefore prescribed unless such director proves that such default was on occasioned by any act of his or by
any omission on his part.
101. (1) If such person appears and moves to have the order set aside or modified the Magistrate shall take
evidence in the matter.
(2) If the Magistrate is satisfied that the order is not reasonable and proper it shall either rescind the same or
modify it in accordance with the requirements of the case, and in the latter case the order as modified shall be
made absolute,
(3) If the Magistrate is not so satisfied the order shall be made absolute.
102. When an order has been made absolute under section 100 or section 101 the Magistrate shall give notice
of the same to the person against whom the order was made and shall further require him to perform the act
directed by the order within a time specified in the notice and inform him that in case of disobedience he will
be liable to the penalties provided by subsection (2) of section 100.
103. (1) If such act is not performed within the time specified in the notice issued under section 102 the
Magistrate may cause it to be performed and may recover the costs of performing it wither by the sale of any
building, goods, or other property removed by his order of by the distress and sale of any other moveable
property of such person within or without the local limits of the jurisdiction of his court. If such other property
is without such limits the order shall authorize its attachment and sale when endorsed by a Magistrate within
the local limits of whose jurisdiction the property to be attached is found.
(2) A suit shall not lie in respect of anything done in good faith under this section.
104. (1) Of the Magistrate making an order under section 98 considers that immediate measures should be
taken to prevent imminent danger or injury of a serious kind to the public he may issue such an injunction to
the person against whom the order was made as-is required to obviate or prevent such danger or injury.
(2) In default of such person forthwith obeying such injunction the Magistrate may use or cause to be used
such means as he thinks fit to obviate such danger or prevent such injury.
(3) A suit shall not lie in respect of anything done in good faith by a Magistrate under this section.
105. A magistrate may order any person not to repeat or continue a public nuisance as defined in the Penal
Code or any special or local law.
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B.— TEMPORARY ORDERS IN URGENT CASES OF NUISANCE
106. (1) In cases where in the opinion of a Magistrate immediate prevention or speedy remedy is desirable the
Magistrate may by a written order stating the material facts of the case and served in manner provided by
section 99 direct any person to abstain from a certain act or to take certain order with certain property in his
possession or under his management, if the Magistrate considers that such direction is likely to prevent or
tends to prevent obstruction, annoyance, or injury, or risk of obstruction, annoyance, or injury to any persons
lawfully employed, or danger to human life, health or safety, or a riot or an affray.
(2) An order under subsection (1) may in cases of emergency or in cases where the circumstance do not admit
of the serving in due time of a notice upon the persons against whom the order is directed be made ex pane.
(3) An order under subsection (1) may be directed to a particular person or to the public generally when
frequenting or visiting a particular place, and in the latter case a copy of the order shall be posted up as
provided by subsection by subsection (2) of section 99.
(4) Any Magistrate may rescind or alter any order made under subsection (1) by himself or by his predecessor
in office.
(5) An order under this section shall not remain in force for more than fourteen days from the making thereof
unless, in cases of danger to human life, health, or safety, or a likelihood of a riot or an affray, the Minisier by
notification in the Gazette otherwise directs.
Sri Lanka - General Standards for Industrial Waste Water (Effluents) Discharged Into Inland Surface
Waters (After Treatment)
pH -- 6.0-8.5
Suspended Solid (mg/l) --50
Temperature (C) -- 40
BOD (5 days at 20 0 C )(mg/l) -- 30
COD (mg/l) -- 250
Phenolic compounds (as C6H5OH) (mg/l) --1.0
Cyanides (mg/l) -- 0.2
Sulphides (mg/l) -- 2.0
Fluorides (mg/l) -- 2.0
Total residual Chlorine (mg/l) -- 1.0
Ammonical Nitrogen (as N) (mg/l) – 50
Arsenic (as As) (mg/l) -- 0.2
Cadmium (as Cd) (mg/l) -- 0.1
Chromium (as Cr) (mg/l) -- 0.1
Copper (as Cu) (mg/l) -- 3.0
Lead (as Pd) (mg/l) -- 0.1
Sri Lanka – Mines and Minerals Act, 1992 (selected sections)
26(1). Subject as hereinafter provided, and the rights granted by a license issued under this Act, the
ownership of minerals is hereby vested in the Republic, notwithstanding any right of ownership or otherwise
which any person may have to the soil on, in or, under which minerals are found or situated.
(2) Any person who discovers any mineral shall forthwith inform the Director thereof.
28(1). No person shall explore for, mine, transport, process, trade in or export any minerals except under the
authority of, or otherwise than in accordance with, a license issued in that behalf under the provisions of this
Act and the regulations made thereunder: …
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30(1). The Bureau shall not issue a license to any person to explore for, or mine any minerals upon
(a) any burial ground or cemetery within the meaning of the Cemeteries and Burial Grounds Ordinance
(Chapter 321), without the approval of the Minister and the Minister in charge of the subject of Local
Government;
(b) any land within such distance of a railway track, aerodrome, road, thoroughfare, power line or other public
work or building as may be prescribed, without the approval of the Minister and the Minister in charge of the
relevant subject;
(c) any land situated within such distance of a lake, stream or a tank or bund within the meaning of the Crown
Lands Ordinance (Chapter 454), as may be prescribed, without the approval of the Minister and the Minister in
charge of the subject of Lands;
(d) any wild life reservation, nature reserve, forest or park within the meaning of the Crown Lands Ordinance
(Chapter 454), as may be prescribed, without the approval of the Minister and the Minister in charge of the
subject of Lands;
(e) any land situated within such distance of a catchment area within the meaning of the Crown Lands
Ordinance (Chapter 454), as may be prescribed, without the approval of the Minister and the Minister in
charge of the subject of Lands;
(f) the foreshore or sea-bed within the meaning of the Crown Lands Ordinance (Chapter 454), as may be
prescribed, without the approval of the Minister and the Minister in charge of the subject of Coast
Conservation;
(g) any land vested in any naval, military, or air force authority, without the approval of the Minister in charge
of the subject of Defence;
(h) any land vested in and Provincial Council or a local authority without the approval of the Minister in
charge of the subject of Provincial Councils;
(2) In addition to any other condition that may be prescribed under this Act, the Minister or the Ministers
referred to in subsection (1), as the case may be, may, in granting approval for a license under subsection (1),
lay down such further conditions, as may be determined by such Minister or Ministers. Where approval is
granted subject to any further conditions, the Bureau shall cause such conditions to be specified in the license.
31. The Bureau shall not issue a license to any person to explore for, or mine any mineral upon –
(a) any land situated within such distance of any ancient monument situated on State land or any protected
monument, as is prescribed under section 24 of the Antiquities Ordinance (Chapter 188); and
(b) any land declared by the Archeological Commissioner to be an archeological reserve under section 33 of
the said ordinance;
35(1). On receipt of any application for a license under this Act the bureau may subject to the provisions of
section 33, either issue a license to the applicant or for reasons to be recorded by it, refuse to issue such
applicant a license.
(2) Subject to the other provisions of this Act; every license issued under this section shall –
(a) be in such form and be subject to such terms and conditions as are set out in subsection (4);
(b) specify the limits of the area in respect of which the license is authorized to explore for or mine, transport,
process, trade in or export minerals;
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(c) specify the minerals in respect of which exploration, mining transportation, processing, trading in or
exporting is authorized;
(d) not be transferable, or given as secutiry; and
(e) specify the duration of such license;
Provided however that, an industrial mining license may be transferred or given as security as provided for in
the investment agreement in pursuance of which such license was issued or otherwise upon the approval of the
Bureau and subject to such conditions as may be prescribed.
(3) Any license issued under this section shall, unless it is cancelled earlier, be valid for such a period as shall
be specified therein.
(4) Every license issued under this Act shall in addition to the conditions referred to in subsection (2) of
section 35 have attached thereto, inter alia, the following conditions: (a) that the exploration, mining, processing, trading in and export of minerals authorized by the license shall
not be conducted in a fraudulent, reckless, grossly negligent or willfully improper manner;
(b) that the licensee shall notify the Bureau of the discovery of minerals discovered by him in the exercise of
his rights under the license;
(c) that the licensee shall in the exercise of his right under the license, comply with all written laws relating to
the protection of the environment, health and safety standards and the protection of natural resources;
(d) that the licensee shall on the completion of the exploration or mining authorized by the license rehabilitate
the land to which such license related to such condition as may be specified;
(e) that the licensee shall not suspend, curtail or cease the activities authorized by the license for a period
exceeding six months except with the prior permission of the Bureau.
(f) that the licensee shall comply with the provisions of this Act and any regulation made thereunder;
(g) that the licensee shall maintain such books, records other documents and materials as are required by the
Bureau, to maintained by him and shall either enter the required particulars therein;
(h) that the licensee shall pay to the Bureau the fees in respect of such license and any other payments he is
required to pay by virtue of or under such license, within such period as may be required by virtue of or under
such license, within such period as may be required by this Act or any regulation made thereunder;
(i) that the licensee shall afford any authorized officer of the Bureau, access to any premises in which any
activity authorized by the license is carried on and to make available to such office all books, records and other
documents maintained by the licensee as required by the license; and to comply with any lawful direction or
order given by such officer; …
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Sri Lanka – Fauna and Flora Protection Ordinance (Selected Sections)
2. (1) The Minister may by Order published in the Gazette declare that any specified area of State land shall
for the purposes of this Ordinance be a National Reserve and may by that Order or by any Order subsequently
published in the Gazette declare that the whole or any specified part of any such National Reserve shall be—
(a) a Strict Natural Reserve; or
(b) a National Park; or
(c) a Nature Reserve; or
(d) a Jungle Corridor; or
(e) a Refuge; or
(f) a Marine Reserve; or
(g) a Buffer Zone.
(2) The Minister may by Order published in the Gazette declare that any specified area of land within Sri
Lanka (other than land declared to be a National Reserve) shall be a Sanctuary for the purposes of this
Ordinance.
(3) An area declared to be a Sanctuary may include both State land and land other than State land.
(4) The Minister may by Order published in the Gazette declare that from a specified date—
(a) the limits of any Strict Natural Reserve, National Park, Nature Reserve, Jungle Corridor Refuge, Marine
Reserve or Buffer Zone, shall be altered or varied; (b) any National Reserve or part thereof shall cease to be a
National Reserve;
(c) any Sanctuary or part thereof shall cease to be a Sanctuary;
(d) that a National Reserve of one class shall be a National Reserve of another class.
(5) (a) The Minister may, by Order, declare that the limits of any National Reserve or Sanctuary shall be
altered or varied. (
b) Any Order made by the Minister under this subsection shall have no effect unless it has been approved by
Parliament and notification of such approval is published in the Gazette.
2A. The Director shall administer, control and manage the facilities or services which are to be provided
within any National Reserve.
3. (1) Save as hereinafter provided—
(a) no person shall be entitled to enter any Strict Natural Reserve or Nature Reserve, or in any way to disturb
the fauna and flora therein;
(b) no person shall be entitled to enter any National Park except for the purpose of observing the fauna and
flora therein;
(c) no animal shall be hunted, killed or taken, and no plant shall be damaged, collected or destroyed in a Strict
Natural Reserve, destroyed, in a Strict Natural Reserve;
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(d) no person shall hunt, shoot, kill or take any wild animal, or take or destroy any egg of any bird or reptile or
any nest of any bird, in any Sanctuary.
6. (1) No person shall in a Strict Natural Reserve, National Park, Nature Reserve, Jungle Corridor, Refuge,
Marine Reserve or Buffer Zone —
(a) hunt, shoot, kill, wound or take any wild animal or have in his possession or under his control any wild
animal, whether dead or alive, or any part of such animal; or
(b) take or destroy any egg of any bird or reptile, or any nest of any bird; or
(c) fire any gun or do any other act which disturbs or is likely to disturb any wild animal or do any act which
interferes or is likely to interfere with the breeding place of any such animal; or
(d) fell, girdle, lop, tap, burn or in any way damage or destroy any plant, or take, collect, or remove any plant
therefrom; or
(e) clear or break up any land for cultivation, mining or for any other purpose; or
(f) kindle or carry any fire; or
(g) possess or use any trap or any explosive or gun or other weapon or poisonous substance capable or injuring
or destroying any animal or plant; or
(h) make any fresh clearing; or
(i) except under the authority of a permit issued in that behalf by the prescribed officer, erect any building,
whether permanent or temporary, or occupy any building so erected; or
(j) construct or use any road or path so constructed by him; or
(k) construct or manage any tourist hotel or provide any services or facilities similar to the services or facilities
provided by a tourist hotel.
(4) Any person who acts in contravention of the provisions of this section shall be guilty of an offence and
shall on conviction be liable to imprisonment of either description for a term not less than one year and not
exceeding five years.
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SUPREME COURT JUDGMENTS
Bangladesh -- Dr. Mohiuddin Farooque vs Government of Bangladesh
WP 92 of 1996
48 DLR, 434 HC
Decided 1 July 1996
…. The Petitioner submitted that as Secretary-General of the Bangladesh Environmental Lawyers Association
(BELA) he filed the Writ Petition in the public interest as consumption of imported food items containing a
radiation level above the acceptable limit and injurious to public health is a threat to the life of the people of
the country including himself who are potential consumers of such goods. Under Article 18(1) of the
Constitution the State is bound to take measures to raise the level of nutrition and the improvement of public
health, and under Article 21(2) persons in the service of the Republic have a duty to strive to serve the people.
But the activities of the Government officers and officers of the Atomic Energy Commission in dealing with
the consignment in question injurious to public health has threatened the life of the people. He therefore
contended that under Articles 31 and 32 of the Constitution the right to life is a fundamental right, and the
actions of those officers in not compelling the importer, Respondent No.6, to send back the imported milk
powder in question injurious to public health has violated the aforesaid fundamental right to life, and as such
the Respondents should be directed to take measures for sending back the said milk powder to the exporter. …
Let us see what is the meaning of the right to life under Articles 31 and 32 of the Constitution of Bangladesh,
and whether such right has been threatened as alleged by him, and whether he is entitled to the relief sought
for, or to any other relief. …
Under Article 31 of the Constitution, no action detrimental to life, liberty, body, reputation or property of any
person can be taken except in accordance with law and a person including a citizen is entitled to protection of
law and entitled to be treated in accordance with law for the preservation of life, liberty, etc. Under Article 32,
no person shall be deprived of his life or personal liberty save in accordance with law. Under both the above
Articles, life cannot be endangered except in accordance with law. So the right to life is a fundamental right
subject to the law of the land. Since the right to life has not been interpreted in our domain, we are to see what
is the meaning of the right to life. In the absence of any such interpretation from our domain, we may see what
meaning was given by the superior courts of other countries to the right to life.
The Fifth Amendment to the Constitution of the United States of America declares: “No person shall be
deprived of his life, liberty or property without due process of law”. The Fourteenth Amendment also imposes
a similar limitation on the states. In the case of Munn vs Illinois (1877) 94 U.S. 113, in his dissenting judgment
Field J. interpreted “life” under the aforesaid provisions of the U.S. Constitution as follows: “Something more
than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by
which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm
or leg or the putting out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world.”
Article 21 of the Constitution of India provides: “No person shall be deprived of his life or personal liberty
except according to procedure established by law.” The Indian Supreme Court interpreted the right to life
under the aforesaid Article 21 of the Indian Constitution, similar to our Article 32, in several cases.
In the case of Francis Coralie vs Union Territory of Delhi, reported in A.I.R. 1981 S.C. 746, the right to life
under Article 21 of the Indian Constitution has been interpreted in the following words: “But the question
which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and
embrace something more. We think that the right to life includes the right to life with human dignity and all
that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter
over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about
and mixing and commingling with fellow human beings.”
In the case of Bandua Mukti Morcha vs Union of India, reported in A.I.R. 1984 S.C. 803, the Supreme Court
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of India, while interpreting Article 21 of the Indian Constitution, further extended the meaning of right to life
as made in the earlier case in the following words: “It must include protection of the health and strength of
workers, men and women, and of the tender age of children against abuse, opportunities and facilities for
children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just
and humane conditions of work and maternity relief.”
In the case of Olga Tellis vs Bombay Municipal Corporation, reported in A.I.R. 1986 S.C. 180, the Supreme
Court of India, while interpreting Article 21 of the Indian Constitution, further extended the meaning of the
right to life in the following words: “The sweep of the right to life conferred by Article 21 is wide and far
reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the
imposition and execution of a death sentence except according to procedure established by law. That is but one
aspect of the right to life. An equally important facet of that right is the right to livelihood, because no person
can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as
a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to
deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the
life of its effective content and meaningfulness but it would make life impossible to live. And yet, such
deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood
is not regarded as a part of the right to life. That which alone makes life livable must be deemed to be an
integral component of the right to life.”
In the case of Vincent vs Union of India, reported in A.I.R. 1987 S.C. 990, the learned Judge delivering the
judgment in that case quoted with approval the interpretation of the right to life made by the Indian Supreme
Court in the Bandua Mukti Morcha case and held: “A healthy body is the very foundation for all human
activities .......... In a welfare state, therefore, it is the obligation of the State to ensure the creation and the
sustaining of conditions congenial to good health ......... maintenance and improvement of public health have to
rank high as these are indispensable to the very physical existence of the community and on the betterment of
these depends the building of the society which the Constitution makers envisaged.”
In the case of Vikrm Deo Singh vs State of Bihar, reported in A.I.R. 1988 S.C. 1982 it was further held that:
“We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that
every person is entitled to quality of life consistent with his human personality. The right to life with human
dignity is the fundamental right of every Indian citizen.”
In the case of Subash Kumar vs State of Bihar, reported in A.I.R. 1991 S.C. 420, it was further held: “The right
to live is a fundamental right under Article 21 of the Constitution and it includes the right to the enjoyment of
pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in
derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the
pollution of water or air which may be detrimental to the quality of life.”
From the above decisions it appears that the right to life is not only limited to the protection of life and limbs
but extends to the protection of health and strength of workers, their means of livelihood, enjoyment of
pollution free water and air, bare necessities of life, facilities for education, development of children, maternity
benefit, free movement, maintenance and improvement of public health by creating and sustaining conditions
congenial to good health and ensuring quality of life consistent with human dignity.
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Bangladesh -- Dr. Mohiuddin Farooque vs Government of Bangladesh
WP 998 of 1994, CA 24 of 1995
49 DLR 1, 434 HC
Decided 25 July 1996
A.T.M. AFZAL, CJ.… A group of environmental lawyers possessed of pertinent, bonafide and well-recognized attributes and
purposes in the area of environment and having a provable, sincere, dedicated and established status is asking
for a judicial review of certain activities under a flood action plan undertaken with foreign assistance on the
ground, inter alia, of alleged environmental degradation and ecological imbalance and violation of several laws
in certain areas of the district of Tangail. The question is: does it have sufficient interest in the matter for a
standing under article 102?
It is very interesting that Justice Douglas of the U.S. Supreme Court in his minority opinion went so far as to
say in Sierra Club vs. Morton, 401 U.S. 907 (1971) (No.70-34) that contemporary public concern for
protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects
to sue for their own preservation. The learned Judge further said: Ecology reflects the land ethic; and Aldo
Leopold wrote in A Sand County Almanac 204 (1949), "The land ethic simply enlarges the boundaries of the
community to include soils, waters, plants, and animals, or collectively, the land." That as I see it, is the issue
of "standing" in the present case and controversy.
The Rio Declaration on Environment and Development containing 27 principles include, among other, it may
be noted for the present purpose:
Principle 3: The right to development must be fulfilled so as to equitably meet developmental and
environmental needs of present and future generations.
Principle 10: Environmental issues are best handled with the participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to information concerning
the environment that is held by public authorities, including information on hazardous materials and activities
in their communities, and the opportunity to participate in decision-making processes. States shall facilitate
and encourage public awareness and participation by making information widely available. Effective access to
judicial and administrative proceeding, including redress and remedy, shall be provided.
Principle 10 above seems to be the theoretical foundation for all that have been vindicated in the writ petition
and also provides a ground for standing. In this context of engaging concern for the conservation of
environment, irrespective of the locality where it is threatened, I am of the view that a national organization
like the appellant, which claims to have studied and made research on the disputed project, can and should be
attributed a threshold standing as having sufficient interest in the matter, and thereby regarded as a person
aggrieved to maintain the writ petition subject to the objection or objections as may be raised by the
respondents if a Rule is issued ultimately. …
MUSTAFA KAMAL, J.:
… We now proceed to say how we interpret Article 102 as a whole. We do not give much importance to the
dictionary meaning on punctuation of the words "any person aggrieved". Article 102 of our Constitution is not
an isolated island standing above or beyond the sea-level of the other provisions of the Constitution. It is a part
of the over- all scheme. …
With the power of the people looming large behind the constitution horizon it is difficult to conceive of Article
102 as a vehicle or mechanism for realising exclusively individual rights upon individual complaints. The
Supreme Court being a vehicle, a medium or mechanism devised by the Constitution for the exercise of the
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judicial power on behalf of the people, the people will always remain the focal point of concern of the
Supreme court while disposing of justice or propounding any, judicial theory or interpreting any provision of
the Constitution. Viewed in this context interpreting the words "any person aggrieved" meaning only and
exclusively individuals and excluding the consideration of people as a collective and consolidated personality
will be a stand taken against the constitution. …
With the power of the people looming large behind the constitution horizon it is difficult to conceive of Article
102 as a vehicle or mechanism for realising exclusively individual rights upon individual complaints. The
Supreme Court being a vehicle, a medium or mechanism devised by the Constitution for the exercise of the
judicial power on behalf of the people, the people will always remain the focal point of concern of the
Supreme court while disposing of justice or propounding any, judicial theory or interpreting any provision of
the Constitution. Viewed in this context interpreting the words "any person aggrieved" meaning only and
exclusively individuals and excluding the consideration of people as a collective and consolidated personality
will be a stand taken against the constitution. …
LATIFUR RAHMAN,J.:[T]here is a category of cases where the State or a public authority may act in violation of a constitutional or
statutory obligation, or fail to carry out such obligation resulting in injury to public interest or public injury as
distinguished from private injury. Who then in such cases can complain of against such act or omission of the
State or public authority? Can any member of the public sue for legal redress? Or is such right or standing
limited only to a certain class of persons? Or is there no one who can complain? Must the public injury go
unredressed?
Thus I hold that a person approaching the court for redress of a public wrong or public injury has sufficient
interest (not a personal interest) in the proceedings and is acting benefit and not for his personal gain or private
profits, without any political motivation or other oblique consideration has locus standi to move the High
Court under Article 102 of the Constitution of Bangladesh.
BIMALENDU BIKASH ROY CHOUDHURY. J
… Although we do not have any provision like article 48-A of the Indian Constitution for protection and
improvement of environment, articles 31 and 32 of our Constitution protects right to life as a fundamental
right. It encompasses within its ambit, the protection and preservation of the environment, ecological balance
free from pollution of air and water, and sanitation without which life can hardly be enjoyed. Any act or
omission contrary thereto will be violative of the said right to life.
In the face of the statements in the writ petition BELA is concerned with the protection of the people of this
country from the ill-effects of environmental hazards and ecological imbalance. It has a genuine interest in
seeing that the law is enforced and the people likely to be affected by the proposed project are saved. Ths
interest is sufficient enough to bring the appellant within the meaning of the expression "person aggrieved".
The appellant should be given locus standi to maintain the writ petition on their behalf.
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India – M.C. Mehta v. Union of India
WP 12739 of 1985
AIR 1987 SC 1086, (1986) 2 S.C.C. 175
Decided 20 December 1986
… [I]n S.P. Gupta v. Union of India, 1981 Supp. SCC 87, (AIR 19832 SC 149) … this Court held that where
a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reasons of violation
of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or
illegal burden is threatened, and any such person or determinate class of persons is by reason of poverty or
disability or socially or economically disadvantaged position unable to approach the Court for relief, any
member of the public or social action group can maintain an application for an appropriate direction, order or
writ in the High Court under Art. 226 and in case of breach of any fundamental right of such person or class of
person, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person
or determinate class of persons. This Court also held in S.P. Gupta's case (supra) as also in the People's Union
for Democratic Rights v. Union of India, (1983 1 SC 1473) and in Bandhua Mukyi Morcha's case (supra) that
procedure being merely a hand- maiden of justice it should not stand in the way of access to justice to the
weaker sections of Indian humanity and therefore where the poor and the disadvantaged are concerned who are
barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society
without any access to justice, this Court will not insist on a regular writ petition and even a letter addressed by
a public spirited individual or a social action group acting pro bono publico would suffice to ignite the
jurisdiction of this Court. We wholly endorse this statement of the law in regard to the broadening of locus
standii and what has come to be known as epistolary jurisdiction. ….
We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which
poses a potential threat to the health and safety of the persons working in the factory and residing in the
surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to
anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The
enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity
in which it is engaged must be conducted with the highest standards of safety and if any harm results on
account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be
no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any
negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity
carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous
preparation of substance or any other related element that caused the harm the enterprise must be held strictly
liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous
activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit,
the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident
arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads.
Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the
enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is
carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the
resource to discover and guard against hazards or dangers and to provide warning against potential hazards.
We would therefore hold that 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
which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.
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India -- M.C. Mehta v Union of India and Others
WP 3727 of 1985 (Kanpur Tanneries case)
AIR 1988 SC 1037
Decided 22 September 1987
The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish
primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be
allowed to exist a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be
in existence for the adverse effect on the public at large which is likely to ensue by the discharging of the trade
effluents from the tannery to the river Ganga would be immense and it will outweigh any inconvenience that
may be caused to the management and the labour employed by it on account of its closure. Moreover, the
tanneries involved in these cases are not taken by surprise. For several years they are being asked to take
necessary steps to prevent the flow of untreated wastewater from their factories into the river. Some of them
have already complied with the demand. It should be remembered that the effluent discharged from a tannery
is ten times noxious when compared with the domestic sewage water which flows into the river from any
urban area on its banks. We feel that the tanneries at Jajmau, Kanpur cannot be allowed to continue to carry on
the industrial activity unless they take steps to establish primary treatment plants. In cases of this nature this
Court act affecting or likely to affect the public is being committed and the statutory authorities who are
charged with the duty to prevent it are not taking adequate steps to rectify the grievance. For every breach of a
right there should be a remedy. It is unfortunate that a number of tanneries at Jajmau even though they are
aware of these proceedings have not cared even to enter appearance in this Court to express their willingness
to take appropriate steps to establish the pre treatment plants. So far as they are concerned an order directing
them to stop working their tanneries should be passed.
India -- Subhash Kumar v State of Bihar
WP 381 of 1988
AIR 1991 SC 420, 424
Decided 9 January 1991
… Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court. It
provides for an extraordinary procedure to safeguard the Fundamental rights of a citizen. Right to life is a
fundamental right under Art. 21 of the Constitution and it includes the right of enjoyment of pollution free
water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of
laws, a citizen has right to have recourse to Art. 32 of the Constitution for removing the pollution of water or
air which may be determined to the quality of life. A petition under Art. 32 for the prevention of pollution is
maintainable at the instance of affected persons or even by a group of social workers or journalists. …
India - ICELA v. Union of India,
WP 664/1993
AIR 1997 SC 3519; (1996) 5 SCC 281
Decided 18 April 1996
The main Notification was issued so as to ensure that the development activities are consistent with the
environmental guidelines for beaches and coastal areas and to impose restrictions on the setting up of
industries which have detrimental effect on the coastal environment. …
If the mere enactment of the laws relating to the protection of environment was to ensure a clean and
pollution-free environment, then India would, perhaps, be the least polluted country in the world. But, this is
not so. There are stated to be over 200 Central and State Statutes which have at least some concern with
environment protection, either directly or indirectly. The plethora of such enactments has, unfortunately, not
resulted in preventing environmental degradation which, on the contrary, has increased over the years.
Enactment of a law, relating to protection of environment, usually provides for what activity can or cannot be
done by people. If the people were to voluntarily respect such a law, and abide by it, then it would result in law
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being able to achieve the object for which it was enacted. Where, however, there is a conflict between the
provision of law and personal interest, then it often happens that self-discipline and respect for law disappears.
Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued
infringement of law, over a period of time, is made possible by adoption of such means which are best known
to the violators of law. Continued tolerance of such violations of law not only renders legal provisions
nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means
which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the lawabiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the
legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the
future generations and to ensure good quality of life that Parliament enacted the anti-pollution laws, namely,
the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and
notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view
to protect and preserve the environment. When a law is enacted containing some provisions which prohibit
certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If
a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of
law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a
lawless society. Violation of antipollution laws not only adversely affects the existing quality of life but the
non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment,
the adverse effect of which will have to be borne by the future generations.
India – M.C. Mehta v. Kamal Nath
WP 182 of 1996
(1997) 1 S.C.C. 388
Decided 13 December 1996
…. The notion that the public has a right to expect certain lands and natural areas to retain their natural
characteristic is finding its way into the law of the land. …
… The ancient Roman Empire developed a legal theory known as the "Doctrine of the Public Trust". It was
founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by
Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern
about "the environment" bear a very close conceptual relationship to this legal doctrine. Under the Roman law
these resources were either owned by no one (res nullious) or by every one in common (res communious).
Under the English common law, however, the Sovereign could own these resources but the ownership was
limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere
with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to
be held in trust by the Crown for the benefit of the public. ….
The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the
forests have such a great importance to the people as a whole that it would be wholly unjustified to make them
a subject of private ownership. The said resources being a gift of nature, they should be made freely available
to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the
resources for the enjoyment of the general public rather than to permit their use for private ownership or
commercial purposes. …
Our legal system - based on English common law - includes the public trust doctrine as part of its
jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and
enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically
fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources
meant for public use cannot be converted into private ownership.
We are fully aware that the issues presented in this case illustrate the classic struggle between those members
of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those
charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly
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complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate
to change. The resolution of this conflict in any given case is for the legislate and not the courts. If there is a
law made by Parliament or the State Legislatures the courts can serve as an instrument of determining
legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of
any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and
convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the
natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for
private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and
in public interest to encroach upon the said resources.
Coming to the facts of the present case, large area of the bank of River Beas, which is part of protected forest
has been given on a lease purely for commercial purposes to the Motels. We have no hesitation in holding that
the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile
land to the Motel management. ….
India-- A.P. Pollution Control Board v. Nayudu
CA 368-371 of 1999
(1999) 2 S.C.C. 718
Decided 27 January 1999
The 'uncertainity' of scientific proof and its changing frontiers from time to time has led to great changes in
environment concepts during the period between the Stockholm Conference of 1972 and the Rio Conference
of 1992. In Vellore Citizens' Welfare Forum v. Union of India and others, 1995(5) SCC 647, a three Judges
Bench of this Court referred to these changes, to the 'precautionary principle' and the new concept of 'burden
of proof' in environmental matters. Kuldip Singh, J. after referring to the principles evolved in various
international Conferences and to the concept of 'Sustainable Development', stated that the Precautionary
Principle, the Polluter-Pays Principle and the special concept of Onus of Proof have now emerged and govern
the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact,
in the various environmental statutes, such as the water Act, 1974 and other statutes, including the
Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these
principles have now become part of our law. The relevant observations in the Vellore Case in this behalf read
as follows: "In view of the above-mentioned constitutional and statutory provisions we have no hesitation in
holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of
the country."
The Court observed that even otherwise the above-said principles are accepted as part of the Customary
International Law and hence there should be no difficulty in accepting them as part of our domestic law. …
The learned Judges also observed that the new concept which places the Burden of Proof on the Developer or
Industrialist who is proposing to alter the status quo, has also become part of four environmental law. The
Vellore judgment has referred to these principles briefly but, in our view, it is necessary to explain their
meaning in more detail, so that Courts and tribunals or environmental authorities can properly apply the said
principles in the matters which come before them. …
A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier the
Concept was based on the 'assimilative capacity' rule as revealed from Principle 6 of the Stockholm
Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science
could provide policy-makers with the information and means necessary to avoid encroaching upon the
capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be
available when environmental harm was predicted and there would be sufficient time to act in order to avoid
such harm. But in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature,
1982, the emphasis shifted to the 'Precautionary Principle', and this was reiterated in the Rio Conference of
1992 in its Principle 15 which reads as follows :
"Principle 15 : In order to protect the environment, the precautionary approach shall be widely applied by
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States according to their capabilities. Where there are threats of serious or irreversible damage; lack of full
scientific certainity shall not be used as a reason for proposing cost-effective measures to prevent
environmental degradation." …
The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or
to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental
protection should not only aim at protecting health, property and economic interest but also protect the
environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete
danger but also by (justified) concern or risk potential. The precautionary principle was recommended by the
UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific
evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. …
We shall next elaborate the new concept of burden of proof referred to in the Vellore case at p. 658 (1996(5)
SCC 647). In that case, Kuldip Singh, J. stated as follows: "The 'onus of proof' is on the actor or the
developer/industralist to show that his action is environmentally benign."
It is to be noticed that while the inadequacies of science have led to the 'precautionary principle', the said
'precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases
where burden as to the absence of injurious effect of the actions proposed, - is placed on those who want to
change the status quo …. This is often termed as a reversal of the burden of proof, because otherwise in
environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a
procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by
maintaining a less-pollutted state should not carry the burden of proof and the p arty who wants to alter it,
must bear this burden.
The precautionary principle suggested that where there is an identifiable risk of serious or irreversible harm,
including, for example, extinction of species, widespread toxic pollution in major threats to essential
ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the
activity that is potentially harmful to the environment.
It is also explained that if the environmental risks being run by regulatory in action are in some way "uncertain
but non-negligible", then regulatory action is justified. This will lead to the question as to what is the 'nonnegligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status
quo. They are to discharge this burden by showing the absence of a 'reasonable ecological or medical concern'.
That is the required standard of proof. The result would be that if insufficient evidence is presented by them to
alleviate concern about the level of uncertainity, then the presumption. Such a presumption has been applied in
Ashburton Acclimatisation Society v. Federated Farmers of New Zealand, 1988(1) NZLR 78. The required
standard now is that the risk of harm to the environment or to human health is to be decided in public interest,
according to a 'reasonable persons' test. (See Precautionary Principle in Australia by Charmian Barton) (Vol.
22) (1998) Harv. Env. L.Rev. 509 at 549). …
India -- M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Others
CA 9323-25/1994
AIR 1999 SC 2468
Decided 26 July 1999
This Court in numerous decisions has held that no consideration should be shown to the builder or any other
person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid
by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief.
Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised
construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial
discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered
in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion
and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion
wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be
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seen in moulding the relief in the present case and allowing one of the blocks meant for parking to stand we
have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.
In the present case we find that the builder got an interim order from this Court and on the strength of that
order got sanction of the plan from the Mahapalika and no objection from LDA. It has no doubt invested
considerable amount on the construction which is 80% complete and by any standard is a first class
construction. Why should the builder take such a risk when the interim order was specific that the builder will
make construction at its own risk and will not claim any equity if the decision in the appeal goes against it ?
When the interim order was made by this Court the Mahapalika and the State Government were favouring the
builder. As a matter of fact the Mahapalika itself filed appeals against the impugned judgment of the High
Court. Perhaps that gave hope to the builder to go ahead with the construction and to take the risk of getting
the construction demolished and restoring the park to its original condition at its own cost. The builder did not
foresee the change in stand not only of the Mahapalika but also of the State Government. It also, as it would
appear, overrated its capacity to manage with the State Government to change the land use of the park. The
builder is not an innocent player in this murky deal when it was able to get the resolutions of the Mahapalika
in its favour and the impugned agreement executed. Now, construction of shops will bring in more congestion
and with that the area will get more polluted. Any commercial activity now in this unauthorised construction
will put additional burden on the locality. The primary concern of the Court is to eliminate the negative impact
the underground shopping complex will have on the environmental conditions in the area and the congestion
that will aggravate on account of increased traffic and people visiting the complex. There is no alternative to
this except to dismantle the whole structure and restore the park to its original condition leaving a portion
constructed for parking. We are aware that it may not be possible to restore the park fully to its original
condition as many trees have been chopped off and it will take years for the trees now to be planted to grow.
But a beginning has to be made.
In the matter of K.M. Chinappa Applicant
in
T.N. Godavarman Thirumalpad, Petitioner
v.
Union of India and Others, Respondents
Interlocutory Application No. 670 of 2001
In Writ Petition(C) No. 202/1995.
Decided October 30, 2002
By destroying nature, environment, man is committing matricide, having in a way killed Mother Earth.
Technological excellence, growth of industries, economical gains have led to depletion of natural resources
irreversibly. Indifference to the grave consequences, lack of concern and foresight have contributed in large
measures to the alarming position. In the case at hand, the alleged victim is the flora and fauna in and around
Kudremukh National Park, a part of the Western Ghats. The forests in the area are among 18 internationally
recognized ‘hotspots’ for biodiversity conservation in the world.
The said I.A. 670 of 2001 is an offshoot of I.A. 548 filed by learned Amicus Curiae questioning the
correctness of orders issued by the States of Karnataka and Uttar Pradesh respectively which according to him
were in violation of the provisions contained in the Wildlife (Protection) Act, 1972 (in short, the ‘Act’). By
order dated 14.2.2000, operation of any order permitting removal of certain trees from National Parks, Game
Sanctuaries and Forests was injuncted. Subsequently, the word ‘forests’ was deleted.
In the present I.A. learned Amicus Curiae has pointed out that notwithstanding orders passed by this Court on
12.12.96 and 14.12.2000 mining activities were being conducted by Kudremukh Iron Ore Co. Ltd. (hereinafter
referred to as ‘company’) which were in clear violation of orders passed by this Court. The main reliefs sought
are:
(a) to direct the MoEF to withdraw the illegal “temporary working permission” issued by it and stop mining
activities;
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(b) direct KIOCL to stop polluting the Bhadra river due to open cast mining;
(c) take action against KIOCL for illegal encroachment in the forests and for destruction of forests in the
Kudremukh National Park; and
(d) to stop KIOCL from laying new slurry pipe line in the forests of the National Park. ...
While contending that there was no violation of any law relating to forests and environment certain legal
issues were raised by the Company which need to be dealt with first. With reference to Rule 24(B) of the
Mineral Concession Rules, 1960 (in short, the ‘Concession Rules’) framed under the Mines and Minerals
(Regulation and Development) Act, 1957 (in short, the ‘Mines Act’), it was submitted notwithstanding
anything provided under the Act, Conservation Act or the Environment Act, on an application being made the
lease was to be renewed for twenty years and therefore, the recommendations made at a point of time for such
period were in order. Further, the draft Notification under Section 35(1) of the Act was issued on 2.9.1987 and
the final Notification was published on 16th June, 2001 under Section 35(4) of the Act, whereby the land
under mining was specifically excluded. In any event, 900 hectares of land was outside the land covered by the
Notification. The Notification dated 29.5.1982 issued under Section 349 of the Karnataka Municipalities Act,
1964 (in short, ‘Municipalities Act’) was also relevant. All these, according to Shri. Venugopal, took the land
in question outside the purview of the operations of the Act, Conservation Act and the Environment Act.
With reference to the order dated 14.112000 passed in W.P. 337/2000, it was submitted that the same was
relatable to a stage under Section 35(5) of the Act. Since there was an existing legal right to get a renewal,
which had already accrued, there was no question of any embargo on the renewal of the mining lease. In this
background, it was submitted that the State and the Central Governments at earlier points of time had acceded
to the request of the company for renewing the lease for 20 years. Reference in this context was made to a
letter dated 6.7.1999 issued by the state government. It was pointed out that the company had subsisting
contracts with foreign buyers, and if the lease is not renewed or the mining activities are required to be
abandoned, there shall be large financial implications on account of impossibility to perform the contracts. It
was submitted that for the purpose of renewal, no consent is necessary as an existing right is only to be
extended further. ...
Learned Amicus Curiae has pointed out that stands of the company are per se not acceptable. The Committee
has granted to the company much more than what it deserves. With reference to the report of Shri. Valmik, it
is pointed out that the situation is so grave that “hands off situation” has come to play. It is pointed out that the
role of the Karnataka State Government and the Central Government in the Ministry of Environment and
Forests is far from satisfactory. Even without any Environment Impact Assessment report, stand was taken for
granting 20 years renewal period. There is no consistency in the stand of the State and the Central
Governments because at one point of time they agreed to renewal period of 20 years and subsequently turned
around to five years period, and then again took inconsistent stands. All these go to show that there is no
proper application of mind and without realizing the serious consequences involved, recommendations are
being made. In W.P. 337/2000 by order dated 14.11.2000, it was, inter-alia, directed as follows:
“…Pending further orders, no de-reservation of forests/sanctuaries/national parks shall be effected”.
Action of the State Government in excluding land while issuing Notification under Section 35(4) of the Act is
in clear violation of this Courts’ order.
Banshi Ram’s case on which emphasis was laid by the company is not good law in view of the subsequent
decisions of this Court in Ambica Quarry Works vs. State of Gujarat and Ors. (1987(1) SCC 213). Reference
may also be made to the decisions in Tarun Bharat Sangh, Alwar vs. Union of India and Ors. (1992 Supp. (2)
SCC 448) Tarun Bharat Sangh, Alwar vs. Union of India and Ors. (1993 Supp. (3) SCC 115) and two reported
orders in T.N. Godavarman Thirumulkpad vs. Union of India and Ors. (1997 (2) SCC 267) and T.N.
Godavarman Thirumulkpad vs. 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 Section 2(ii) of the Forest (Conservation) Act, 1980 (in short, the ‘Conservation Act’). ...
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The main thrust of the Company’s plea relating to the environmental issues which was highlighted by Shri.
Venugopal during hearing of the application was that the Company has taken all possible steps to preserve and
conserve nature in its pristine glory. It is eco-friendly as would be evident from the various activities
undertaken by it and vast sums of money spent for preservation of nature and environment in addition to
efforts to prevent pollution. It has received several awards for its admirable achievements in the field of
environmental protection. It was submitted that sustainable development is permissible and is universally
accepted phenomenon. At the time the company was incorporated, environment impact assessment was
conducted and detailed guidelines were formulated to see that there was least degradation of the environment.
The approach was clearly environmental friendly. The approach in such matters is to see as to what prevailed
when the project was commenced. There has been a substantial change in the approach and if the
contemporaneous factual backdrop is considered, it will be seen that the company’s anxiety was to protect
nature and environment. Further, the various reports submitted by expert bodies give a lie to the impressions
created before the Committee that there was continued destruction of nature of the flora and fauna by the
mining activities undertaken by the company. The reality is otherwise. With reference to a Notification dated
29.5.1982 issued under Section 349 of the Municipalities Act, it is submitted that the concerned area cannot be
treated as forest land. A reference was also made to a decision in State of Bihar vs. Banshi Ram Modi and Ors.
(1985(3) SCC 643) to contend that the Act has no application. ...
Coming to plea that in case of a renewal there is no requirement of compliance of Section 2 of the
Conservation Act, the stand is clearly untenable in view of decisions in Ambica Quarry’s case (supra) and
Rural Litigation and Entitlement Kendera vs. State of U.P. (AIR 1988 SC 2187) where at page 2201 it was
observed that ‘whether it is a case of first grant or renewal following exercise of option by the lessee, the
compliance of Section 2 of the Conservation Act is necessary as a condition precedent.’ It may be noted here
that the area in question was declared to be a reserved area in 1960 and in 1987, the Notification under Section
35(I) was issued.
It is of significance that in the present case the Forest Advisory Committee under the Conservation Act on
11.7.2001 examined the renewal proposal in respect of the company’s mining lease. It recommended that the
mining may be allowed for a period of four years i.e. upto the year 2005 by which time the weathered
secondary ore available in the already broken up area would be exhausted. ...
Nepal -- LEADERS v. Godavari Marble Industries Private Ltd. and others
NKP 2052 (1995) Golden Jubilee Special Issue, p 169
Decided 31 October 1995
[T]here is no doubt that the petitioner has a concern for environment. As environmental conservation is a
matter of public concern and interest, it does fall under public interest. Therefore, the petitioner undoubtedly
has a meaningful relationship with the issue. As the present constitution under its Article 88 (2)6 has
established public interest as a fundamental right, whether the petition has locus standing is no more an issue.
Right to life includes right to clean and healthy environment. In order to conserve the environment, it is
essential to enact a special legislation and implement it effectively. No human activity can be properly
managed or regulated if the legislation is lacking. Legislation is also indispensable to define environmental
offense and crime and make provision for punishment. The court cannot penalize, or pass an order for the
closure of an industry in the absence of relevant legislation. As the existing legislation are scattered,
inadequate and ineffective, a legislation which covers every component of environment needs to be enacted.
... Development is for the benefit and prosperity of human beings. Therefore, human life is an end,
development being the means to live happily. Human beings cannot lead a decent and healthy life in a polluted
environment. This fact should be kept in mind while adopting measures to prevent environmental degradation.
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Pakistan -- Zia v. WAPDA
P L D 1994 Supreme Court 693
Decided 1994
Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with
the law. The word “life” is very significant as it covers all facts of human existence. The word “life” has not
been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal
life or mere existence from conception to death. Life includes all such amenities and facilities which a person
born in a free country is entitled to enjoy with dignity, legally and constitutionally. For the purposes of present
controversy suffice it to say that a person is entitled to protection of law from being exposed to hazards of
electromagnetic fields or any other such hazards which may be due to installation and construction of any grid
station, any factory, power station or such like installations. Under the common law a person whose right of
easement, property or health is adversely affected by any act of omission or commission of a third person in
the neighbourhood or at a far off place, he is entitled to seek an injunction and also claim damages, but the
Constitutional rights are higher than the legal rights conferred by law be it municipal law or the common law.
Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of
people who may suffer from it unknowingly because of lack of awareness, information and education and also
because such sufferance is silent and fatal and most of the people who would be residing near, under or at a
dangerous distance of the grid station or such installation do not know that they are facing any risk or are
likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens
throughout the country cannot make such representation and may not like to make it due to ignorance, poverty
and disability. Only some conscientious citizens aware of their rights and the possibility of danger come
forward and this has happened so in the present case. ..
Dr. Pervez [sic] Hasan, learned counsel has referred to various judgments of the Indian Supreme Court in
which the term “life” has been explained with reference to public interest litigation. In Kharak Singh v. State
of UP (AIR 1963 SC 1295) for interpreting the word “life” used in Article 21 of the Indian Constitution
reliance was placed on the judgment of Field, J. in Munn v. Illinois [sic] (1876) 94 US 113 at page 142 where
it was observed that “life” means not merely the right to the continuance of a person’s animal existence but a
right to the possession of each of his organs--his arms and legs etc. In Francis Corali v. Union Territory or
Delhi (AIR 1981 SC 746) Bhagvati, J. observed that right to life includes “right to live with human dignity and
all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter
and facilities for reading and writing in diverse from [sic].” Thus, apart from the wide meaning given by US
Courts, the Indian Supreme Court seems to give a wider meaning which includes the quality of life, adequate
nutrition, clothing and shelter and cannot be restricted merely to physical existence. The word “life” in the
Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only
to sustain life but to enjoy it. Under our Constitution, Article 14 provides that the dignity of man and subject to
law the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man
under Article 14 is unparalleled and could be found only in few Constitutions of the world. The Constitution
guarantees dignity of man and also right to “life” under Article 9 and if both are read together, question will
arise whether a person can be said to have dignity of man if his right to life is below bare necessity like
without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment.
Such questions will arise for consideration which can be dilated upon in more detail in a proper proceeding
involving such specific questions.
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Pakistan – W. Pakistan Salt Miners Labour Union (CBA) Khwra, Khelum v.
The Director, Industries and Mineral Development
1994 SC MR 2061
Decided 12 July 1994
… It is well settled that in human rights cases/public interest litigation under Article 184(3), the procedural
trappings and restrictions, precondition of being an aggrieved person and other similar technical objections
cannot bar the jurisdiction of the Court. This Court has vast power under Article 184(3) to investigate into
questions of fact as well, independently, by recording evidence or appointing commissions or any other
reasonable and legal manner to ascertain the correct position. Article 184(3) provides that this Court has power
to make Order of the nature mentioned in Article 199. The fact that the Order or direction should be in the
nature mentioned in Article 199 enlarges the scope of granting relief and the relief so granted by this Court can
be moulded according to the facts and circumstances of each case. …
Sri Lanka - Environmental Foundation Limited vs. Ratnasiri Wickramanayake,
C.A. App. No. 137/96
Decide 17 December 1996
… Counsel for the 1st and 2nd Respondents have taken a preliminary objection that the Petitioner has no
locus standi to make the present application. He submits that “the law as to locus standi to apply for certiorari
may be stated as follows: the writ can be applied for by an aggrieved party, who has a grievance, or by a
member of the public. If the applicant is a member of the public, he must have sufficient interest to make the
application” Premadasa v. Wijewardena, (1991) 1 S.L.R. 333 at 343. Locus standi in relation to mandamus is
more stringent. The petitioner must have a personal interest in the subject matter of the application: Simon
Singho v. Government Agent, W.P., 47 N.L.R.545.
Counsel for the Petitioner, on the other hand, submits that the Petitioner has its objective the protection of
nature and the conservation of its riches (Vide P1, P2, P3). It is genuinely concerned with the implementation
and enforcement of the law relating to nature, its conservation and the environment in general, and is
performing a duty case on it by Article 28(f) of the Constitution of Sri Lanka, to protect nature and conserve
its riches. It is to be noted, however, that Article 29 of the Constitution provides that the provision of Chapter
VI do not confer or impose legal rights or obligation and are not enforceable in any court or tribunal.
However, there are decisions both here and abroad which have expanded the principle of locus standi to
include an applicant who can show a genuine interest in the matter complained of, and that he comes before
court as a public-spirited person, concerned to see that the law is obeying the interest of all: See Wijesiri v.
Siriwardena, (1982) 1 S.L.R. 171. Unless any citizen has standing there is no means of keeping public
authorities within the law unless the Attorney General will act - which frequently he will not. That private
persons should be able to obtain some remedy therefore “a matter of high constitutional principle”: Lord
Denning, MR - R v. Paddington Valuation Officer (1966) 1 Q.B. 380. Nevertheless, the Court would not listen
to a mere busybody who was interfering in things which did not concern him, but will listen to anyone whose
interest are affected by what has been done: See R. v. Paddington (supra). In any event, if the application is
made by what for convenience one may call a stranger, the remedy is purely discretionary: See Parker J in R.
v. Thames Magistrates Court (1957) 55 L.G.R. 129. Court retains a discretion to refuse to act at the instance of
a mere stranger, if it considers that no goof would be done to the public: See Re Forster (1863) 4 B.&.S. 187.
As a party genuinely interested in the matter complained of, the Petitioner has the locus standi to make this
application. …
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Sri Lanka -- Jayawardena v. Akmeemana Pradeshiya Sabha
S.C. Application No. 594/96/FR
Decided 24 September 1997
In terms of Section 23 A of the National Environmental Act No.47 of 1f980 as amended by Act No.56 of
1988,”no person shall discharge, deposit or emit waste into the environment which will cause pollution except
(a) under the authority of a license issued by the Authority; and (b)in accordance with such standards and
other criteria as may be prescribed under this Act.” … Section 23B states, inter alia, that every such license
“shall be subject to such terms, conditions and standards as may be prescribed”
Section 23D states: “Where a license has been issued to any person….and such person acts in violation of any
of the terms, standards and conditions of the license….the Authority may by order….cancel such license”.
Any person who is aggrieved by such an order may appeal against such cancellation to the Secretary to the
Ministry. (Section 23 E). Regulation 10 states that: “The Authority may, before issuing an order….canceling a
license issued under Section 23D of the Act, give the holder of the license an opportunity to show cause why
such order should not be issued. Provided that where, since the issue of the license, the receiving environment
has been altered or changed due to natural factors or otherwise, or where continued discharge, deposition or
emission of waste into the environment under the license for a period to be specified in the order, or cancel
such license.” …
Article 14(1)(g) of the Constitution declares and recognizes the right of every citizen to the freedom to engage,
by himself or in association with others, in any lawful occupation, profession, trade, business or enterprise.
The emission of dust and noise from the metal crushing operation was lawful only if such operation was
licensed. A license was issued to the Petitioner but it was subject to specified conditions.
In my view, a person who does not comply with; the conditions of a license acts as if he had no license, for the
license would not have been issued except on the basis that the conditions were complied with. In the
circumstances, the Petitioner’s occupation, business or enterprise was unlawful in terms of Section 23A read
with Section 23B of the National Environmental Act and he cannot complain that he had any right to carry on
such an activity. I therefore declare that Article 14(1)(g) was not violated.
United Stated - Illinois Central Railroad Co. v. Illinois
146 U.S. 387 (1892)
That the State holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the
same manner that the State holds title to soils under tide water, by the common law, and that title necessarily
carries with it control over the waters above them whenever the lands are subjected to use. But it is a title
different in character from that which the State holds in lands intended for sale. It is different from the title
which the United States hold in the public lands which are open to preemption and sale. It is a title held in trust
for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and
have liberty of fishing therein freed from the obstruction or interference of private parties. The interest of the
people in the navigation of the waters and in commerce over them may be improved in many instances by the
erection of wharves, docks and piers therein, for which purpose the State may grant parcels of the submerged
lands; and, so long as their disposition is made for such purpose, no valid objections can be made to the grants.
It is grants of parcels of lands under navigable waters, that may afford foundation for wharves, piers, docks
and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially
impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the
adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which
such lands are held by the State. But that is a very different doctrine from the one which would sanction the
abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay,
or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the
government of the State to preserve such waters for the use of the public. The trust devolving upon the State
for the public, and which can only be discharged by the management and control of property in which the
public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the
purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the
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public therein, or can be disposed of without any substantial impairment of the public interest in the lands and
waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement
of the public interest, or which when occupied do not substantially impair the public interest in the lands and
waters remaining, and a grant of the whole property in which the public is interested, that the language of the
adjudged cases can be reconciled. ... A grant of all the lands under the navigable waters of a State has never
been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not
absolutely void on its face, as subject to revocation. The State can no more abdicate its trust over property in
which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely
under the use and control of private parties, except in the instance of parcels mentioned for the improvement of
the navigation and use of the waters, or when parcels can be disposed of without impairment of the public
interest in what remains, than it can abdicate its police powers in the administration of government and the
preservation of the peace. In the administration of government the use of such powers may for a limited period
be delegated to a municipality or other body, but there always remains with the State the right to revoke those
powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts
connected with public property, or property of a special character, like lands under navigable waters, they
cannot be placed entirely beyond the direction and control of the State. ...
The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern
to the whole people of the State. The trust with which they are held, therefore, is governmental and cannot be
alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or
when parcels can be disposed of without detriment to the public interest in the lands and waters remaining.
The soil under navigable waters being held by the people of the State in trust for the common use and as a
portion of their inherent sovereignty, any act of legislation concerning their use affects the public welfare. It is,
therefore, appropriately within the exercise of the police power of the State.
The legislature could not give away nor sell the discretion of its successors in respect to matters, the
government of which, from the very nature of things, must vary with varying circumstances. The legislation
which may be needed one day for the harbor may be different from the legislation that may be required at
another day. Every legislature must, at the time of its existence, exercise the power of the State in the
execution of the trust devolved upon it. ... There can be no irrepealable contract in a conveyance of property by
a grantor in disregard of a public trust, under which he was bound to hold and manage it.
United States - Sierra Club v. Morton
405 U.S. 727 (1972)
Decided April 19, 1972
MR. JUSTICE STEWART delivered the opinion of the Court.
Some courts have indicated a willingness to take this latter step by conferring standing upon organizations
that have demonstrated "an organizational interest in the problem" of environmental or consumer protection. It
is clear that an organization whose members are injured may represent those members in a proceeding for
judicial review. But a mere "interest in a problem," no matter how longstanding the interest and no matter how
qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization
"adversely affected" or "aggrieved" within the meaning of the APA. The Sierra Club is a large and longestablished organization, with a historic commitment to the cause of protecting our Nation's natural heritage
from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to
commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any
other bona fide "special interest" organization, however small or short-lived. And if any group with a bona fide
"special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the
same bona fide special interest would not also be entitled to do so.
MR. JUSTICE DOUGLAS, dissenting.
The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal
Page 88 of 91
rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of
the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the
subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should
lead to the conferral of standing upon environmental objects to sue for their own preservation. This suit would
therefore be more properly labeled as Mineral King v. Morton.
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for
maritime purposes. The corporation sole - a creature of ecclesiastical law - is an acceptable adversary and large
fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes,
whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees,
swampland, or even air that feels the destructive pressures of modern technology and modern life. The river,
for example, is the living symbol of all the life it sustains or nourishes - fish, aquatic insects, water ouzels,
otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for
its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those
people who have a meaningful relation to that body of water - whether it be a fisherman, a canoeist, a
zoologist, or a logger - must be able to speak for the values which the river represents and which are
threatened with destruction.....
The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes
over the managerial functions from the federal agency. It merely means that before these priceless bits of
Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to
be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these
environmental wonders should be heard.
Perhaps they will not win. Perhaps the bulldozers of "progress" will plow under all the aesthetic wonders of
this beautiful land. That is not the present question. The sole question is, who has standing to be heard?
Those who hike the Appalachian Trail into Sunfish Pond, New Jersey, and camp or sleep there, or run the
Allagash in Maine, or climb the Guadalupes in West Texas, or who canoe and portage the Quetico Superior in
Minnesota, certainly should have standing to defend those natural wonders before courts or agencies, though
they live 3,000 miles away. Those who merely are caught up in environmental news or propaganda and flock
to defend these waters or areas may be treated differently. That is why these environmental issues should be
tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it
represents will stand before the court - the pileated woodpecker as well as the coyote and bear, the lemmings
as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those
people who have so frequented the place as to know its values and wonders will be able to speak for the entire
ecological community.
Ecology reflects the land ethic; and Aldo Leopold wrote in A Sand Country Almanac (1949), "The land ethic
simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively:
the land."
That, as I see it, is the issue of "standing" in the present case and controversy.
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