There is a mistaken notion
among people today that it is only recently or in the last few years that there
has been growing awareness of environment degradation, industrial pollution and
deliberate change in land use.
In fact, courts in India
The courts, particularly,
high courts, have been hauling up the civic agencies for the laxity in
enforcing the rule of the law.
This post is about a group of
people who went to court against pollution from industries and this happened ay
back in 1991. The people were residents and devotees of the Raghavendra Swamy
Matha in Kalyani garden in Bangalore
The High Court gave a verdict
in favour of the petitioners-V. Lakshmipathy and others and asked the civic
agencies to clean up their act. Whether or not the civic agencies and the
respondents went in appeal against this order and whether this order was
upheld, modified or set aside is not the subject matter of this post.
This post only wants to
highlight the fact the people were aware of
the dangers of pollution two decades and more earlier and courts too
acted upon their concern.
We are publishing this
judgment only because the Kalyani Raghavendra Swamy Matha in Ashoknagar (near
Vidyapeetha) is in the news as an image of Raghavendra Swamy is manifesting
itself on the outer walls of the Prakara housing the Brindavana of
the seer of Mantralaya.
This is what the judgment
said and, as can be seen, it was delivered by Justice Balakrishna. This
judgment is in public domain and in case, anyone needs more information, it can
be obtained from the High Court on payment of a nominal fee. If not, the law
journals and the advocates who argued the case will have details.
Karnataka
High Court
V. Lakshmipathy versus State
Of Karnataka
(ILR 1991 KAR 1334, 1991 (2)
KarLJ 453)
Case
Number : Writ Petition No. 23138 of 1980
Advocate for
Respondent: Sateesh M. Doddamani, Govt. Pleader, H. Thipperudrappa,
Gopalakrishna, B.T. Parthasarthy, Ashok R. Kalyana Setty, R.C. Castelino, K.N.
Subba Reddy, Dayananda Kumar, S.G. Sundaraswamy.
Advocate for Appellant: M.G.
Sathyanarayanamurthy.
Author: H. G. Balakrishna
Bench: H G. Balakrishna
ORDER
Balakrishna,
J.
1. The petitioners, who are
the residents of Banashankari Extension I Stage, Block-1, which includes a part
of N.R. Colony and Ashokanagar, have embarked on Public Interest Litigation
actuated by common cause in defence of public interest. The petitioners are
aggrieved by the location and operation of industries and industrial
enterprises in a residential area in alleged gross violation of the provisions of
the Karnataka Town Bangalore Vajapeyam
Terrace Gardens Kalyani Gardens Karnataka Bangalore Karnataka
Town Karnataka Town
2. Non-compliance with the
said conditions entail by virtue of a penal clause in the said Agreement,
withdrawal of the sanction and acquisition of the property and dealing with the
same in accordance with Rules.
3. It is alleged that in a
part of the Kalyani Garden' exists a Temple dedicated to Sri Raghavendra Swamy
Brindavana under a Deed of Trust dated 29-7-1974 to be run by a Trust called
"Sathyabhamamma Seethamma Katyani Raghavendra Ashrama". For the
purpose of access to the said Temple Cross Road Temple
4. Another grievance
articulated is that the decadence contributed by pollution has affected the
value of the properties in the entire area.
5. The petitioners assert
that the residents of the area have a right to expect strict performance of
statutory duties in order to protect public interest by Public Bodies invested
with statutory powers, duties and obligations and that these Authorities cannot
commit breach of statutory obligations frustrating public interest and public
good. It is submitted by the petitioners that inspite of repeated requests and
demands, not only the Corporation but also the B.D.A. and the Health Officer of
the Corporation have failed to take necessary steps in accordance with Law. It
is alleged that representations were made to the Commissioner of the
Corporation and the Secretary, Housing and Urban Development Department
(respondent-2 herein) on 31-7-1979 and also to the Chairman, B.D.A.
(respondent-9 herein) on 20-11-1979, in vain and, therefore, the petitioners
were constrained to issue a registered notice of demand dated 16-9-1980
addressed to all the 15 Authorities concerned vide Annexure- B. It is stated
that all the notices have been served on them. However, the petitioners
complain that there was no response from any of these Authorities and the
demands were never met by them and hence they have resorted to Public Interest
Litigation and to arouse Judicial Conscience for securing legal redress.
6. The petitioners have
sought for a declaration that the change in land use in Sy.Nos. 39/1, 39/2A and
39/2B of Yediyur-Nagasandra village, Bangalore, from residential to industrial
is violative of the Karnataka Town and Country Planning Act, the Outline
Development Plan, the Comprehensive Development Plan and Regulations thereunder
and that all consequential actions relating to such violations in land use are
void and illegal; that the licences, permissions and certificates of change in
land use issued by the concerned Authority especially respondents-9, 14 and 16
for location of industries by respondents-17 to 49 are void and illegal. The
petitioners have also sought for a declaration that the recognition or orders
passed by the Director of Industries and Commerce granting and conferring
benefits on such industries run by respondents-17 to 49 are void and illegal
and similarly the power supply sanctioned and granted by the Karnataka
Electricity Board as void and illegal. A Writ of Mandamus is also sought by the
petitioners for a direction to the Corporation of the City of Bangalore
7. On behalf of
respondents-29 to 31, 34, 37 to 42 and 46 to 49, an elaborate statement of objections
is purported to have been filed. All these respondents have been running
industries in the area in question. Except the Karnataka Electricity Board
(respondent-13 herein), the remaining respondents have not filed any statement
of objections. The petitioners have also filed a reply to the counters filed by
the concerned respondents.
8. The affidavit in support
of the statement of objections is signed by respondent-47 and it is not clear
from the affidavit that respondent-47 has been authorised to file the statement
of objections and to sign the affidavit not only on its behalf, but also on
behalf of respondents-29 to 31, 34, 37 to 42, 46, 48 and 49. It would not be
unreasonable to presume that the statement of objections is preferred by
respondent-47 for itself and only on its own behalf. In other words, the
presumption is that the other respondents have not filed the statement of
objections. It is no doubt true that in the beginning of the statement of
objections of the respondents, it is stated "The respondents 29, 30, 31,
33, 34, 37, 38, 39, 40, 41, 42, 46, 47, 48 and 49 beg to state as
follows". Barring this statement, I do not find any averment even in the
statement of objections that these respondents have authorised respondent-47 to
file an affidavit in support of the counter on their behalf. Therefore, I would
not Be hyper technical in presuming that the counter is filed only for and on
behalf of respondent-47 and the other respondents mentioned in the statement of
objections do not subscribe to the counter.
9. In the statement of
objections filed by respondent-47, all the allegations made by the petitioners
have been categorically denied. It is contended that the petitioners have no
legal right to seek relief under Article 226 of the Constitution of India, that
the Writ Petition is barred by laches and that the petitioners have not made
out any valid ground for grant of the relief sought under Article 226 of the
Constitution of India.
10. Intelligible in the
statement of objections of the K.E.B. are the averments that the Writ Petition
is liable to be dismissed for laches, unexplained delay and acquiescence and
lack of locus standi of the petitioners while asserting that the power supply
sanctioned to the concerned respondents by the K.E.B. is not illegal.
11. The point for
consideration is whether the alleged change in land use in Sy.Nos. 39/1, 39/2A
and 39/2B of Yediyur-Nagasandra village, Bangalore, from residential to
industrial is in contravention of the Karnataka Town and Country Planning Act,
the Outline Development Plan, the Comprehensive Development Plan and
Regulations thereunder apart from the question whether the Writ Petition is not
maintainable on the ground of laches and want of legal right.
12. Arguments, in extenso,
were advanced by Sri M.G. Sathyanarayanamurthy for the petitioners, by Sri S.G.
Sundaraswamy for respondent-47, Sri R.C. Castelino for the Bangalore City
Corporation and Sri H. Thipperudrappa for the B.D.A.
13. Of contextual relevance
is Sub-section (3) of Section 9 of the Karnataka Town
"(3) Notwithstanding
anything contained in Sub-section (2), -
(i) if any Planning Authority
has prepared a plan for the development of the area within its jurisdiction
before the date of the coming into force of this Act, it may send the same to
the State Government for provisional approval within a period of six months
from the said date and the plan so approved shall, notwithstanding anything
contained in this Act, be deemed to be the outline development plan for the
Planning Area concerned;
(ii) if any Planning
Authority is converted into or amalgamated with any other Planning Authority or
is sub-divided into two or more Planning Authorities, the outline development
plan prepared for the area by the Planning Authority so converted, amalgamated
or sub-divided shall, with such alterations and modifications as the State
Government may approve, be deemed to be the outline development plan for the
area of the new Planning Authority or authorities into or with which the former
Planning Authority was converted, amalgamated or sub-divided."
14. In the instant case, the
Planning Authority had prepared a plan for the development of the area within
its jurisdiction before the date of the coming into force of the Act and had
sent the same to the Government for provisional approval within the stipulated
time and, therefore, the plan which was approved by the Government is to be
deemed to be the Outline Development Plan for the planning area concerned. In
the Outline Development Plan prepared by Madhava Rao Committee applicable to
the Bangalore Metropolitan Area the use to which the land could be put had been
formulated. The land was intended to be used for residential purpose only as is
apparent from the Entry in the Outline Development Plan.
15. Section 14 of the Act
deals with enforcement of the Outline Development Plan and the Regulations and
the same reads as follows:-
"(1) On and from the
date of which a declaration of intention to prepare an outline is published
under Sub-section (1) of Section 10, every land use, every change in land-use
and every development in the area covered by the plan shall conform to the
provisions of this Act, the Outline Development Plan and the regulations, as
finally approved by the State Government under Sub-section (3) of Section
13.
(2) No such change in land
use or development as is referred to in Sub-section (1) shall be made except
with the written ' permission of the Planning Authority which shall be
contained in a commencement certificate granted by the Planning Authority in
the form prescribed."
16. From the above provision,
it is crystal clear that before the date on which a Declaration of intention to
prepare an outline is published in accordance with Sub-section (1) of Section
10, every land use, every change in land use and every development in the area
covered by the plan must conform to the provisions of the Act, the Outline
Development Plan and the Regulations as finally approved by the State
Government under Sub-section (3) of Section 13. This is mandatory in character.
Further, by Sub-section (2), it is to be understood that change in land use or
development referred to in Sub-section (1) is permissible only with the written
permission of the Planning Authority embodied in a Commencement Certificate
granted by the Planning Authority in the prescribed Form.
In the Explanation to Section
14, "development" is meant to be the carrying out of building or
other operation in or over or under any land or the making of any material
change in the use of any building or other land. Sub-clause (b) of the
Explanation narrates the operations or uses of land which do not amount to a
development of any building or land.
17. Once an entry is made in
the Outline Development Plan earmarking the area for residential purpose or
use, the land is bound to be put to such an use only. There is no material on
record that any written permission of the Planning Authority contained in a
Commencement Certificate was obtained from the Planning Authority by the
concerned respondents for the purpose of putting up buildings for industrial
purpose.
18. Since the Outline
Development Plan was prepared by Madhava Rao Committee in 1961 and was declared
to be applicable to the Metropolitan Area of the City of Bangalore Bangalore Urban Land
19. Similarly, in respect of Kalyani Gardens Temple Temple Mutt
and Pathasala to Smt. Seethamma Kalyani requesting her to manage the Temple poojas Temple
20. On the basis of the
Government Notifications, it is possible to infer that Kathariguppa village
lies beyond the Municipal limits of the Corporation of the City of Bangalore
21. Out of 49 respondents who
are parties to this Writ Petition, respondents-1 to 12, 14 to 46, 48 and 49
have not chosen to file any statement of objections. The only respondents who
have filed the counter are respondents-13 to 47. Respondent-13 is the K.E.B.
and respondent-47 is Kwality Engineering Company. Allegations of serious nature
have been made by the petitioners complaining about gross violations of
Sections 14 and 17 of the Act, Section 32 of the B.D.A. Act, Section 505 of the
Karnataka Municipal Corporations Act, Sections 6 to 10 of the Urban Land
(Ceiling and Regulation) Act as well as Sections 13 and 17 to 20 of the
Karnataka Religious and Charitable Endowments Act. The concerned Authorities
who are charged with the responsibility of administering and enforcing the law
and who have been impleaded as necessary and proper parties in this Writ
Petition have not chosen to file any statement of objections to meet the
allegations made by the petitioners. The State of Karnataka, the Housing and
Urban Development Department, the Public Health and Family Welfare Department,
the Department of Commerce and Industries, the Director of Industries and
Commerce, the Director of Town Planning, the Director of Health Services, the
Deputy Commissioner of Bangalore District (Urban), the B.D.A., the Engineer
Member of the B.D.A., the Town Planning Member of the B.D.A. the Bangalore
Water Supply and Sewerage Board, the Corporation of the City of Bangalore, the
Health Officer of the Corporation and the Kathariguppa Village Panchayat are
the prominent respondents in this Writ Petition who were called upon to meet
the allegations and averments made by the petitioners. None of these Public
Authorities and Public Officials has rebutted the allegations and averments of
the petitioners. In these circumstances, the course open to me is to hold that
the allegations and averments made against these Authorities by the petitioners
are not disputed, but admitted. The industrialists who have been arraigned
before the Court commencing from respondent-49 also have not chosen to rebut
the allegations made against them with the sole exception of respondent-47
which is Kwality Engineering Company. I, therefore, hold that the allegations
made against the said respondents have gone without question and have to be
presumed to be true. Respondent-47 has filed a detailed statement of
objections, apart from the technical objections raised by the K.E.B. in its
counter. Hence, the pleadings of respondents-13 and 47 are left to contend
with.
22. Since there is no denial
either from the Public Authorities or from the Public Officials as well as the
concerned industrialists with the exception of respondents-13 and 47, I hold
that the petitioners have established their case against these Authorities and
establishments.
23. According to Section 505
of the Karnataka Municipal Corporations Act, 1976, a Corporation or any Officer
or other Authority required by or under the Karnataka Municipal Corporations
Act to exercise any power or perform any function or discharge any duty with
regard to any matter relating to land use or development as defined in the
Explanation to Section 14 of the Karnataka Town and Country Planning Act, 1961,
shall exercise such power, or perform such function or discharge such duty with
regard to such land use or development plan or where there is no development
plan, with the concurrence of the Planning Authority. It is further provided
under Section 505 of the said Act that the said officer or other authority
shall not grant any permission, approval or sanction required by or under the
said Act to any person if it relates to any matter in respect of which
compliance with the provisions of the Karnataka Town and Country Planning Act,
1961 is necessary unless evidence in support of having complied with the
provisions of the said Act is produced by such person to the satisfaction of
the Corporation or the officer or other authority, as the case may be. There is
no material to hold that even the requirements of Section 505 are complied with
by the respondents who set up factory buildings in the area in question.
It is necessary to point out
that the Karnataka
Town
24. According to Section 32
of the B.D.A. Act, notwithstanding anything to the contrary in any law for the
time being in force, no person shall form or attempt to form any extension or
layout for the purpose of constructing buildings thereon without the express
sanction in writing of the Authority and except in accordance with such
conditions as the Authority may specify and where any such extension or layout
lies within the local limits of the Corporation, the Authority shall not
sanction the formation of such extension or layout without the concurrence of
the Corporation. There is no material to substantiate that there is due
compliance with the requirements of this provision.
25. Even in the matter of
transfer of land to the industrialists who are respondents herein, there is no
proof of satisfaction of the requirements of Sections 6 to 10 of the Urban Land
(Ceiling and Regulation) Act, 1976, nor the fulfilment of the requirements of
Sections 13 and 17 to 20 of the Karnataka Religious and Charitable Endowments
Act, 1927.
The Last Act referred to
above is in relation to the Temple
The petitioners have made out
a strong case in regard to the preservation of environment which calls for
consideration.
26. The movement for
restoration and maintenance of a livable environment requires curbing the power
of narrowly oriented administrative agencies in the appropriation of the
dwindling acreage of land and water not already irrevocably appropriated. There
have been several proposed and discussed means of easing the burdens and handicaps
of the substantial evidence -- Rational Basis Rule in environmental cases
involving Judicial Review of administrative agency determinations. Some are
based upon concepts found in environmental cases and other cases and also
explained and analysed by the acknowledged critical Authorities. Others are
based not upon Authorities but on the sheer importance of the interests
affected, for eg., as documented in the National Environment Policy of India.
In a sense the problem is a
part of a larger problem -- that of rendering big Government more responsive to
the needs of the individuals whom it governs.
The remarks of Justice Felix
Frankfurter addressed to the problems of the thirties are relevant to 20th
Century India which is still in a developing stage:
"It is idle to feel
either blind resentment against 'Government of Commission' or sterile longing
for the golden past that never was. Profound new forces call for new social
inventions or fresh adaptations of old experience. The 'great society' with its
permeating influence of technology, large scale industry and progressive
urbanisation, presses its problems; the history of political and social liberty
admonishes us of its lessons. Nothing less is our task than fashioning
instruments and processes at once adequate for social needs and the protection
of individual freedom."
(See: "The Task of
Administrative Law" - Frankfurter)
The explosion of grave
concern for environment at any private and Government level is the great
political phenomenon of recent times. The sporadic and unorganised struggle of
environment stragglers, the wild-life and bird lovers, wilderness wanderers
have identified the conservation movement of the environment and are focussing
their attention on denuded forests, balding hills, disappearing prairie,
extinct species of rare fish, thinning wild life, and vanishing birds. The
movement has become the crusade of anyone almost everywhere for a "livable
environment". There is an increasing awareness that in cleaning up our
environment, if not in wilderness, lies the preservation of the world.
At the moment we are looking
into a decade in which most of the people are living in metropolitan or urban
areas choked by traffic, poisoned by water, suffocated by smog, deafened by
noise and terrorised by crime.
Restoring nature to the
natural state is a cause beyond party and beyond factions. It has become a
common cause of all the people. It is a cause of particular concern to young
Indians because, they, more than us, will reap the grim consequences of our
failure to act on the programmes which are needed now if we are to prevent
disaster later. An onerous obligation which we owe to posterity is clean air,
clean water, greenery and open spaces. These ought to be elevated to the status
of birth-rights of every citizen.
Commenting on Business
Corporations and environment protection, Robert Reinow a Professor of Political
Science at the State University of Newyork, Albany observed:-
"But worse than
Corporation funding is the subversion of Government agencies to the role of
environmental exploiter. The public interest which should be championed by the
agencies with their regulations is ignored or perverted, as the 'iron triangle'
of special interests, bureaucrats and committee chair-person form their unholy
alliance. This means that the public conscience is entrusted to volunteers in
public interest groups, a sacrificial burden of weighty dimensions...
The outstanding feature of
modern political life is the shifting of the burden of defence of public
interest to civic volunteers. Organised, they must dig into their pockets to
hold their groups together; they must respond to calls for protests, launch
petition drives, simulate letter writing campaigns, conduct rallies, attend
hearings and in general, mortgage the time of their personal lives to an
unprecedented extent. Keepers of the social conscience, they express themselves
openly and aggressively. When the record of the environmental movement is
finally registered, the emphasis will be on the new breed of citizenship it
fostered. And it will contrast mightily with the sordid strategy of the
corporate Board rooms where they scoff at do-gooders and belittle nobility of
purpose."
He added:
"What is becoming clear
is that the restructuring of the democratic process has altered the pattern of
citizenship. Where once the public official as in the days of Washington or
Jefferson had a deep and honest sense of public sacrifice, we are today
witnessing the close collaboration of special interests with governmental
agencies and elected officials. In the environmental field, Government too
often emerges as the advocate of exploitation. This is in large part due to the
subtle private and usually corporate pressures. Pressure has become a science
that destroys the governmental shield the citizens have erected to protect
themselves. It is necessary for the Government to guard against such pit-falls.
The choice is between technological progress which proceeds without adequate
regard of its consequences and technological change that is influenced by a
deeper concern for the interaction between man's tools and the human
environment in which they do their work."
Inserted by the Constitution
42nd Amendment Act 1976, Article 48A lays down that the State shall endeavour
to protect and improve the environment and to safe-guard the forests and wild
life of the Country.
Article 51A(g) exhorts the
citizen to protect and improve the natural environment including forests,
lakes, rivers and wild life and to have compassion for living creatures.
Part IV-A on Fundamental
Duties has been added by the Constitution (42nd Amendment) Act 1976 in
accordance with the recommendations of the Swaran Singh Committee bringing the
Constitution in line with Article 29(1) of the Universal Declaration of Human
Rights and the Constitutions of China, Japan and U.S.S.R.
The mandate of our
Constitution is to build a Welfare Society and Legislations made in that behalf
to give effect to Directive Principles of State Policy have to be respected. If
the Constitutional obligations are not discharged by due enforcement by the
administrative agencies, the Court cannot turn a Nelson's eye. The Fundamental
Duties are intended to promote peoples participation in restructuring and
building a Welfare Society and the Directive Principles under Part IV are
intended to build the edifice of Welfare State. Environment and its
preservation is a subject-matter of both, thus emphasising the importance given
to it by our Constitution. Protection of environment is a matter of
Constitutional priority. Neglect of it is an invitation to disaster. The
problem is the concern of every citizen and action brought cannot be dismissed
on the ground of locus standi. The right to sue in this regard is inherent in
the petitioners. When administrators do not mend their ways, the Courts become
the battle ground of social upheaval. The paradigm of bureaucracy conducive to
public welfare features standard operating procedures, humane outlook,
hierarchical authority, prompt law enforcement besides job specialisation and
personnel rules among others. If the administrators show indifference to the
principle of accountability, law will become a dead-letter on the statute book,
and public interest will be the casualty. Entitlement to a clean environment is
one of the recognised basic human rights and Human Rights Jurisprudence cannot
be permitted to be thwarted by status quoism on the basis of unfounded
apprehensions.
Article 226 of the
Constitution enables the citizens to move the High Court to enforce the
performance of statutory obligations of any Authority coming within the sweep
of Article 21 of the Constitution in particular, or for eg., under the
Anti-Pollution Laws of the land like the Pollution Control Act etc. Hence, it
has to be regarded as a Constitutional right of the petitioners responded by
Constitutional remedies of a wide repertoire under Article 226.
posited:-
"He (petitioner) is a
person interested in protecting the lives of the people who make use of the
water flowing in the river Ganga and his right to maintain the petition cannot
be disputed."
In another decision in M.C. MEHTA v. UNION OF INDIA, delivered
subsequent to the earlier Ruling referred to above, the Court observed:-
"Life, public health and
ecology have priority over unemployment and loss of revenue problem."
In another landmark Judgment,
a Bench of five Judges of the Supreme Court held in M.C. Mehta v. Union of India, familiarly
known as Sriram Mills case of Oleum Gas leakage from the Fertiliser and
Chemical Factory run by a private enterprise, that a creative and innovative
interpretation in consonance with our Constitutional Jurisprudence is
commended. The Court observed:-
"However, the principle
behind the doctrine of state aid, control, and regulation so impregnating a
private activity as to give it the colour of state action can be applied to the
limited extent to which it can be Indianised and harmoniously blended with our
constitutional jurisprudence."
Even assuming that one of the
petitioners is actuated by an oblique motive, the grievance of other
petitioners cannot be discarded.
The facts of the case bring
to focus the need for a change of administrative culture to put an end to the
tendency towards regression in social order and institutionalisation of
administrative deviance.
James B. White in "When
words lose their meaning" observed:-
"Behind all the
theoretical talk of Government and legitimacy, behind the systems and projects,
behind even the forms of Government itself there is a culture, a living
organisation of mankind upon which all the talk of system and mechanism
depends, both for its intelligibility and for its effects...In all its
complexity and interconnectedness, it is our substantive and actual
constitution."
(See: "Constitutional
Cultures" - The Mentality and Consequences of Judicial Review" -
Robert F. Nagel).
Even otherwise, the Court
would not be unjustified in exercising its power of equity in the realm of
epistolary jurisdiction under three critical principles of equity which are:-
1. Where there is a right,
there is a remedy;
3. Judges in equity rule act
according to conscience.
Professor Abraham Chayes of Harvard Law School
"The characteristic
features of the public law model are very different from those of the
traditional models. The party structure is sprawling and amorphous and subject
to change over the course of litigation. The traditional adversary relationship
is suffused and intermixed with negotiating and mediating process at every
point. The Judge is the dominant figure in organising and guiding the case and
he draws for support not only on the parties and their counsel but on a wide
range of outsiders --masters, experts and oversight personnel. Most important,
the trial Judge has increasingly become the creator and manager of complex
forms of on going relief which have wide spread effects on persons not before
the Court and require the Judge's continuing involvement in administration and
implementation."
(See: "The Role of the
Judge in Public Law Litigation" 87 Har.Law.Rev. 1281 (1284) 1976. Chayes)
Equity Jurisprudence is based
on hardship, accident, trust and fraud.
27. The onus is on the
Authorities concerned to establish by demonstrable evidence and not by
undisclosed measures that action has been taken to control and hold pollution
within reasonable limits. The pollution alleged by the petitioners consists of
both air pollution and noise pollution. Desecration of the quality of
environment is impermissible as is evident from a series of Legislations
enacted by the Parliament from time to time in the interest of clean air and
clean environment in general. As already pointed out, none of the Authorities
concerned who have been impleaded as respondents in this Writ Petition have
either denied the existence of pollution or have come forward with any
explanation as to what measures have been taken in order to curtail the
pollution. In these circumstances, there is sufficient basis to hold that the
grievance of the petitioners as to the existence of air pollution and noise
pollution affecting the environment to the detriment of the members of the
public is substantiated. I am, therefore, of the opinion that, on that score
also, the Writ Petition is to be allowed.
28. Often cited decisions of
the British Courts which are of persuasive value call for consideration.
In R v. THOMES MAGISTRATE'S
COURT EX.P. GREENBAUM, (1957) 55 LGR 129:-
"Any body can apply for
it - a member of the public who has been inconvenienced or a particular party
or person who has a particular grievance of his own. If the application is made
by what for convenience one may call a stranger, the remedy is purely
discretionary. Where, however, it is made by a person who has a particular
grievance of his own, whether as a party or otherwise, then the remedy lies ex
debito justitiae." - Parker L.J.
In R v. PADDINGTON VALUATION
OFFICER EX.P PEACHERY PROPERTY CORPORATION LIMITED, (1966) 1 QB 380 @ 400:-
"Every citizen has
standing to invite the Court to prevent some abuse of power and in doing so, he
may claim to be regarded not as a meddlesome busy body but as a public
benefactor.
A rate-payer, likewise, has a
particular grievance if the rating list is invalidly made, even though the
defects will make no difference to him financially."
Lord Denning M.R. observed:-
"If he has not
sufficient interest, no other citizen has.
Unless any citizen has
standing, therefore, there is often 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 was therefore 'a
matter of high constitutional principle.'
The Court will not listen,
of; course, to a mere busy body who was interfering in things which did not
concern him. But it will listen to any one whose interests are affected by what
has been done."
Lord Diplock affirmed the
principle when he said:-
"It would, in my view,
be a grave lacuna in our system of public law if a pressure group, like the
federation, or even a single public-spirited tax-payer were prevented by
outdated technical rules of locus standi from bringing the matter to the
attention of the Court to vindicate the rule of law and get the unlawful
conduct stopped."
As enunciated by Lord
Diplock:-
"The Court has not only
the power but also the duty to weigh the public interest of justice to
litigants against the public interest asserted by the public authority contrary
to its actual conduct. Considering the duty which such bodies owe to the
members of the public, it would not be unjust to observe that no public
interest immunity could be attached to such bodies."
Lord Denning M.R.
reiterated:-
"I regard it as a matter
of high constitutional principle that if there is a good ground for supposing
that a Government department or public authority is transgressing the law, or
is about to transgress it, in a way which offends or injures thousands of Her
Majesty's subjects, then anyone of those offended or injured can draw it to the
attention of the Court of Law and seek to have the law enforced, and the Courts
in their discretion can grant whatever remedy is appropriate."
By Judicial inactivism, the
dice will be loaded heavily against the citizen who challenges state action or
inaction of the Public Authorities and there is a fear that Courts may in the
process become Cheer-leaders for the Government in the dock, rather than
guardians of public interest and individual's rights. The real thrust stems
from a Jurisprudence of public duties and the faith that the Rule of Law is
used as a formula for expressing the fact that the Laws of the Constitution are
not the source but the consequences of the rights of the individuals as defined
and expressed by Courts.
According to Dr. Vern.O.
Khudsen, a Physicist and former founder of the Acoustical Society of America
and also a former Chancellor of the University
of Palifornia
"Noise is a slow agent
of death."
Another Expert in the field
Dr. Fabian Rouke of U.S.
reporting to the Newyork Committee for a Quiet City
"One of the incidious
aspects of excessive noise is the fact that an individual may be unconsciously
building up nervous tension due to noise exposures. This may cause a person
thus exposed to noise suddenly to be catapulted into an act of violence or
mental collapse by some seemingly minor sounds which drive him beyond the point
of endurance. Many persons who are using tranquilisers may be treating the
symptoms rather than the disease."
The continuing deterioration
of man's habital demands a revaluation of the present approach to
ecomanagement. Dr. Wagner who is an Authority on the subject of Air Pollution
while referring to the adverse effects of air pollution said:
"We are experiencing
diseases today from hazards we did'nt control yesterday. What we don't take
care of today will be there for our children to handle tomorrow."
It would not be inappropriate
in the context of Human Rights to reproduce an illustration given by Shue 1979:
72-5 in regard to the consequences of inaction:-
"A man is stranded on an
out of the way desert island with neither food nor water. A sailor from a passing
ship comes ashore, but leaves the man to die (an act of omission). This is as
serious as violation of his rights as strangling him (an act of commission). It
is killing him, plain and simple - indirectly, through 'inaction' but just as
surely; perhaps even more cruelly."
We are on a larger issue of
community interest which concerns the preservation of environment against
pollution hazards posed by deleterious sources of nuisance. The broad question
of containment of pollution cannot be oversimplified and dismissed as routine
nuisance of which no person of ordinary sense and temper would complain or
because rightly or wrongly industries have been permitted to be set up. In the
case on hand, the public authorities most closely associated with the issue have
chosen to maintain silence and mysterious aloofness failing to meet the
allegations made by the petitioners, for reasons best known to them. The state
of these Authorities who are the concerned respondents in this case, presents a
baffling enigma. They do not respond to the grievances of the petitioners and
do not lay bare before the Court information either denying or admitting the
existence of pollution and the extent of pollution such as emission of noxious
gases, toxic wastes, assault on the senses by noise pollution and the like
which are imputed by the petitioners in the way they could express.
Terminological inexactitude cannot bar legal redress.
What is alleged in substance
is persistent pollution which is offensive and detrimental to public health.
These allegations have gone without repudiation by the Public Authorities,
Environment protection is not
a preoccupation of the educated and the affluent. It has socio-political
dimensions. The disposal and control of toxic waste and Governmental regulation
of polluting industries is public interest oriented. The effective
implementation of Environmental Legislation is a social learning process which
could fundamentally change the character of public administration in the
Country. From a Global perspective, the struggle to preserve a 'livable
environment' is a part of a broader struggle to create a more just Global
society both within and between Nations. The impact of the human dimensions on
the economically and educationally disadvantaged who inhabit the developing
areas cannot be underscored.
Examples are not wanting of
valiant efforts made by public spirited individuals and groups around the
world, to repair and restore the damaged natural resources that are crucial to
the present and future well-being of the nationals relating to essentials such
as water, land, wild-life and environment in general, as well as quality of
life in particular in cities and towns. In the United States of America,
mentioned by Berger, John, J., in his book "Restoring the Earth" are
illuminating instances:-
a) A house-wife who led a
crusade to clean up a river in Massachusettes;
b) A California Pharmacist
who saved a Red-Wood forest;
c) A Pennsylvania
Mine-Inspector who repaired a strip-mined land;
d) A Wisconsin
architect who saved a town affected by floods and redesigned it as a
flood-proof solar village;
e) A plumber from Cape Cod who transformed a brush-choked ditch into a
Trout stream.
He observes that their yeoman
services have made human settlements more ecologically sound as well as more
enjoyable places to live in and that environmentalism is a truly popular
movement. I am of the view that it would be incongruous to stiffle the present
Public Interest Action by applying truncated standards.
The right to life inherent in
Article 21 of the Constitution of India does not fall short of the requirements
of qualitative life which is possible only in an environment of quality. Where,
on account of human agencies, the quality of air and the quality of environment
are threatened or affected, the Court would not hesitate to use its innovative
power within its epistolary jurisdiction to enforce and safeguard the right to
life to promote public interest. Specific guarantees in Article 21 unfold
penumbras shaped by emanations from those Constitutional assurances which help
give them life and substance. In the circumstantial context and factual
back-drop, judicial intervention is warranted especially since the Supreme
Court of India has already laid the foundation of juristic activism in unmistakable
language of certainty and deep concern.
By allowing the Writ
Petition, if calamitous consequences visit the concerned respondents as a
result of non-feasance or mal-feasance or mis-feasance on the part of Public
Authorities or Public Officials, the doors of Justice are open to them to sue
the Public Authorities for pecuniary relief by enforcing the principle of
accountability.
29. In the light of the above
discussion, I hold that the change in land use in Sy.Nos. 39/1, 39/2A and 39/2B
of Yediyur-Nagasandra Village, Bangalore, from residential to industrial is in
contravention of the Karnataka Town and Country Planning Act, the Outline
Development Plan, the Comprehensive Development Plan and Regulations thereunder
and that the Writ Petition is maintainable.
30. For the reasons stated
above, the Writ Petition succeeds and is, therefore, allowed. It is hereby
declared that the change in land use in Sy.Nos. 39/1, 39/2A and 39/2B of
Yediyur-Nagasandra village, Bangalore, from residential to industrial is
violative of the Karnataka Town and Country Planning Act, the Outline
Development Plan, the Comprehensive Development Plan and the Regulations
thereunder and that all consequential actions relating to such violation in
land use are void and illegal. It is further declared that the licences,
permissions and certificates of change in land use issued by respondents-9, 14
and 16 for location of industries by respondents-17 to 49 are also void and
illegal. A Mandamus is issued hereby with a direction to the Corporation of the
City of Bangalore
31. Action should be taken by
the concerned Authorities to implement the order of this Court within sixty
days from the date of receipt of a copy of this Order.
32. The petitioners are
entitled to costs of Rs. 3,000/- (Rupees three thousand only) from the
respondents.
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