Environmental Protection Law

environment-protection-law

What is Environmental Protection Law?

Environmental Protection Law is the sine qua non for growth and development of any nation. In the absence of effective/appropriate legal machinery, environmental standards cannot be maintained. Many states, as part of national concern, took steps to increase the scope and effectiveness of protection laws. India passed about 200 Central and State Legislations. Prominent among them are twelve, which includes the Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention and Control of Pollution) Act, 1981; and the Environmental Protection Act, 1986. Further, an aggrieved can file a public interest litigation petition (PIL) in the Supreme Court under Art. 32, High Courts under Art. 226 of the Constitution and in the Court of the District Magistrate under Sec. 133 Cr.P.C. against the environmental polluter.

Before the emergence (passing) of environmental legislation and the PIL, an aggrieved could invoke (seek) relief under Common Law of Tort by instituting an action for Nuisance, Trespass, Negligence and Strict Liability; or under the Specific Relief Act, 1963. The present chapter deals with the legal framework provided for Law aspects of environmental protection in India.

Common Law aspects of Environmental Protection Law

Common Law, which is also known as ‘judge-made law’ is one of the oldest sources of Environmental Protection Law. It (Common Law) is derived from the Latin words “Lex Communis”, which is a body of Customary Law of England, based upon judicial decisions. The remedies under the Common Law against the Environmental Pollution are available under the Law of Torts as stated hereunder:

  1. Nuisance
  2. Trespass
  3. Negligence
  4. Strict and Absolute Liability.
  5. Nuisance:- The deepest roots of modern environmental protection law are found in the common law principles of the nuisance. R.N.D. Hamilton (in his Private course for Environmental Harm) says that the substantive law for the protection of the environment is basically the common law relating nuisance”.

Nuisance: Meaning and Definitions:- The word ‘nuisance’ is derived from the French word  ‘nuire’ and Latin word ‘nocere’ which means “to do hurt or to annoy”. It is an act or omission, interfering with the right of another to enjoy some property, causing damage or physical discomfort. Eg. digging a trench on the highway, listening to the radio in loud noise causing discomfort to neighbours.

It is very difficult to define ‘nuisance’ accurately. However, prominent definitions are given below:

  1. Winfield:- According to Prof. Winfield, a nuisance may be described as “unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it”.
  2. Salmond:- According to Salmond, the wrong of nuisance consists in causing or allowing without lawful justification, the escape of any deleterious thing from his land or from elsewhere into land in possession of the plaintiff.

Kinds of Nuisance:- Nuisance is of two kinds namely:

  1. Public or General or Common Nuisance; and
  2. Private Nuisance or Tort of Nuisance.
  3. Public nuisance:- It is an act or omission causing injury or damage or annoyance to the public at large and people in general. A public nuisance is both a tort (civil wrong) and crime (public or an offence). The acts that amount to environmentally damaging public nuisance include carrying of trades causing offensive smells, intolerable noises, dust vibrations, rubbish dumps etc., that affect the health or habitability of a locality.

Section 268 of the Indian Penal Code defines public nuisance as “an act or omission, which causes any common injury, danger or annoyance to the public or to the people in general, who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right”.

Sections 269 to 290 of I.P.C. provide punishment for public nuisance.

Underlying Principle:- The underlying principle of action for nuisance is based on the Latin maxim “Sic utere tuo ut alienum non laedas”, which means “everyone so must use his own as not to damage another”. In simple words, it means “enjoy your own property without causing loss or damage to your neighbour”. This rule is also applicable to states in the International Law. Thus, states, in the process of progress and may establish industries and at the same time, they must also take necessary steps to prevent environmental pollution from such industries. The above maxim was first applied and was accorded international recognition in the case of:

Trail Smelter Arbitration U.S. vs. Canada 3 R.I.I. 1911 (1938)

Facts of the case: Trail Smelter, a Canadian Company was established in the year 1920 on the banks of Columbia River at Trail town, which is 10 miles away from Canada – U.S. Border. It was engaged in the process of smelting lead and zinc. By 1930, the Company rose to the level of consumption per day 300 tons of sulphur. The gases and fumes emitted in the air and effluents and wastages released into the Columbia River caused considerable damage to the State of Washington Of U.S. The American Govt. after negotiations with the Canadian Government referred the matter to the International Joint Commission for Arbitration. The Commission in its report submitted in 1931 assessed the damage for the period from 1920 to 1931 as $ 350,000 and directed the Canadian Govt- to pay the same to America. The company continued the smelting process consuming a day 300 and above tons of sulphur as usual. The American Govt. claimed two million dollars as compensation for the loss caused from 1931 to 1937. As the Canadian Govt. did not agree to pay it, the matter was referred to Arbitration. The tribunal awarded seventy-eight thousand dollars as damages for the loss caused during 1930-1937. (P.S.: If the above case is asked under Part-C: case comment or in the form of a problem, the student has to present: issues involved, principles laid down etc. as stated below).

Issues Involved: The issues/questions involved in the instant case are:

  1. Since the case is the first of its kind, the question that arose was, what environmental protection law is to be applied to resolve the dispute? (in the absence of appropriate legal machinery).
  2. Whether the Trail Smelter Company should be required to refrain from causing damage in future to the State of Washington.

With regard to the first question, there was no appropriate legal regime to settle the international issues/disputes pertaining to air and water till 1941. The Federal Court of Switzerland was conferred power to settle the disputes between the cantons. Similarly, the Federal Court of America resolved the disputes between the States of America. The Tribunal followed the same procedure to resolve the dispute applying the principles of international law, the environmental protection law of the United States and also the principles of Justice, Equity and good conscience.

With regard to the second question, the Tribunal held that the Trail Smelter should refrain from causing damage through gases and fumes to the State of Washington.

Principles laid down and observations:-

  1. The Tribunal adopted the principle “Sic utere tuo ut alienum non laedas” in the Trail Smelter case. It means “everyone must so use his own as not to damage another”. In simple words, it means “enjoy your property without causing any loss or damage to your neighbour”. Similarly, the Tribunal directed the Trail Smelter to see that the gases and fumes released from the Trail Smelter should not cause damage to the neighbour i.e. the State of Washington.
  2. The Tribunal in its observation stressed that ‘air-pollution’ would be a serious threat to the entire globe. Every effort should be made to refrain it from entering into the atmosphere.
  3. The Tribunal suggested that the States should take necessary steps and pass appropriate legislation to prevent the air and water pollution.
  4. It is significant to note in the Trail Smelter case, that the compensation was paid to the aggrieved party in International Law as in the case of Law of Torts. Further, the liability was imposed on the State (Canada) and not on the private party i.e. The Trail Smelter Company.

Effect:- The Tribunal’s decision in Trail Smelter, the case has a great on the liability of the States in International Community, and the same was incorporated in Principle 22 Of the Stockholm Declaration, 1972.

Who can sue for Public Nuisance:- Public Nuisance is a crime under Sec. 268 I.P.C. and every affected person cannot sue. However, the following persons can sue:

  1. Attorney General in England.
  2. Advocate General in Presidency towns and Collectors in the places other than presidency towns.
  3. An individual also can sue, provided he suffers special damage; and
  4. Two or more persons can sue without proof of special damage by obtaining consent in writing from the Advocate General.

Relevant case law:- Dymond vs. Pearce, (1972) 2 W.L.R. 633): It was held in this case that leaving a lorry on the highway for a considerable period was a public nuisance.

Soltau vs. De Held, (1851) 2 Sim. N.S. 133): The plaintiff was residing beside the Roman Catholic Chapel. The chapel bell was being rung day and night. The defendant was held liable for causing damage to the plaintiff in particular.

  1. Private nuisance:- If the nuisance (unauthorised use of one’s own property) causes injury or damage to an individual or group of individuals, it is called ‘Private Nuisance’.

Definition:- According to Underhill, “a private nuisance is some unauthorised use of a man’s own property causing damage to the property of another or some unauthorised interference with the property or proprietary rights of another, causing damage, but not amounting to trespass”.

Elements of Private Nuisance:- To constitute a private nuisance, the following elements are to be satisfied:

  1. Unlawful or Unreasonable Interference; and
  2. Damage

Unlawful or Unreasonable Interference:- The plaintiff must establish that there is a substantial interference with his right to the use and enjoyment of his land or property.

Hollywood Silver Fax Farm Ltd. vs. Emmett, (1936) 2 K.B. 468- In this case, the plaintiff set up a farm for breeding foxes and erected a signboard saying “Hollywood Silver Fox Farm”. His neighbour (defendant) wanted to develop a housing estate on the land and requested the plaintiff to remove the board as it would deter his customers. But the plaintiff refused to remove the board. The defendant warned the plaintiff to shoot along the boundary if the board is not removed. The defendant did accordingly and caused damage to ‘plaintiff’s animals, which are extremely nervous and do not breed at loud noise may kill the young ones. In an action against the defendant, the plaintiff was entitled to get injunction and damages on the ground that “no person can create noise on his own land causing annoyance to others”.

Damage:- In an action for nuisance, the plaintiff has to prove some actual damage he suffered.

Dr Ram Baj Singh vs. Babulal, (AIR 1982 All. 285)- In this case, the dust and fumes from the defendant’s brick grinding machine caused inconvenience to his neighbour i.e. the plaintiff, who was a medical practitioner. In an action against the defendant, a permanent injunction was granted.

Nuisance:- Relevant legal provisions

Apart from various legislations for prevention and control of environmental pollution, some specific provisions relating to Nuisance are stated below:

  1. Law of Crimes (Indian Penal Code, 1860) and Environmental Protection Law;
  2. Criminal Procedure Code, 1973; and
  3. Civil Procedure Code, 1908.

 

  1. Indian Penal Code, 1860:- Indian Penal Code declares certain acts affecting the environment as offences. Chapter XIV containing Sections 268 to 294-A deal with offences affecting the public health, safety, convenience, decency and morals.

Section 268 I.P.C. defines Public Nuisance and Sections 269 to 290 provide punishment for public nuisance. Sections 272 to 276 deal with the adulteration of food, drinks and drugs. Sec- 277 aims to prevent water pollution. This section provides that fouling of water of public spring, well or reservoir rendering it less fit for purposes for which it is ordinarily used, shall be punishable with imprisonment up to three months or with fine up to rupees five hundred or both. The section further provides that “no trade, business or manufacturing process shall be carried out in the residential area which produces a noxious and offensive smell.

  1. Criminal Procedure Code, 1973:- The Code of Criminal Procedure, 1973 provide for certain provisions for preventing and controlling public nuisance causing air, water and noise pollution.

Chapter X, Part-B containing Sections 133 to 143 and Part-C containing Section 144 provides for most effective and speedy remedies.

Section 133 Cr.P.C.:- According to Section 133 of the Cr.P.C. the District Magistrate or Sub-Divisional Magistrate or Executive Magistrate, if he is so empowered by the State Government, on receipt of the report from a police officer or other information, may make conditional order to remove the public nuisance causing pollution. The conditional order may be made absolute and if the person concerned fails to carry it out, he can be prosecuted under Section 188 of the I.P.C. Even the head of the Government Department or public bodies can be prosecuted for defying the orders.

It may be noted that Section 133 Cr.P.C. can be used even against statutory bodies like Municipalities, Corporations and other Government bodies causing public nuisance and environmental pollution. In some cases, the statutory bodies, instead of rectifying their act (or omission causing a public nuisance) fight the legal battle, taking the plea of financial instability. The relevant leading case on this point is:

Municipal Council, Ratlam vs. Vardhichand, AIR 1980 SC 1622 (P.S.: This case is very important and is relevant to public nuisance, 133 Cr.P.C., Public Interest Litigation, Judicial Activism, Pollution / Environmental Pollution etc. and may be asked in Part-C: Case comment).

Facts of the case:- The residents of Ward No.12, Ratlam Municipality, Madhya Pradesh were facing public nuisance caused by open drains, effluents from alcohol plant and open public excretion by nearby slum-dwellers. Vardhichand and other aggrieved residents filed a complaint before the Sub-Divisional Magistrate of Ratlam under Section 133 Cr.P.C. requesting to direct the Municipality to take steps for removal of the public nuisance. The Magistrate issued directions to the Municipality to draft a plan for the removal of nuisance within six months. On appeal, the Sessions Court reversed the order of the Magistrate. On further appeal, the High Court set aside the order of the Sessions Court and approved the order of the Magistrate. The Municipality preferred an appeal to the Supreme Court and took the plea of “financial inability” to comply with the order. From Trial Court to the Supreme Court, it took 8 years.

The Supreme Court through Krishna Iyer, J., rejected the plea of financial instability and held that “the Code of Criminal Procedure operates against the statutory bodies and others regardless of the cash in their coffers”. The court directed the Municipality to provide for drainage system within one year and approved a scheme of Rs.6 lakhs for construction of drainage. The Court also directed the Magistrate of Ratlam to inspect the progress of the work every three months and prosecute the concerned officials if they do not comply with the orders. (P.S.: In case, the above case is asked under Part-C: case comment, the student has to add/ include the following heads viz., questions involved, principles laid down etc. as given below):

Issues/Questions Involved:- The questions involved in the instant case are:

  1. Whether Section 133 Cr.P.C. is applicable to the Statutory Bodies like Municipalities?
  2. Whether the Municipality has a responsibility to remove the public nuisance? If so, what are the relevant legal provisions?

With regard to the first question, Section 133 Cr.P.C. is applicable even against statutory bodies like Municipalities, Corporations and other Government bodies, causing public nuisance and environmental pollution. Hence, Sec. 133 Cr.P.C. is applicable to the Ratlam Municipality, the respondent in the instant case.

With regard to the second question, the respondent (Ratlam Municipality) has a responsibility to remove the public nuisance under Sec. 123 of the Madhya Pradesh Municipalities Act, 1961 and also under Articles 38 and 48-A of the Indian Constitution, 1950.

Further, the Supreme Court rejected the plea of “financial instability” and directed the Ratlam Municipality to provide for drainage system within one year.

Principles laid down:- The Supreme Court through Krishna Iyer, J., in Ratlam Municipality case laid down the following principles-

  1. Decency and dignity are non-negotiable facts of human rights and are the first charge on a local self-governing body.
  2. Where there existed public nuisance in a locality due to open drains, heaps of dirt, public excretions etc. (giving room for the breeding of mosquitoes) the Municipality concerned has to abate the nuisance on a time-bound basis, irrespective of its financial stability.
  3. The guns of Section 133 Cr.P.C. go into action wherever there is a public nuisance.
  4. The Supreme Court condemned the tricks played by the Municipal Council, Ratlam by preferring prolonged appeals without implementing the orders of the Magistrate. Such attitude amounts to misuse of the public trust and infringement of Fundamental Rights of the Constitution.
  5. The Supreme Court reiterated that this decision shall apply to other wards and colonies of the Ratlam Municipality and all other Municipalities in the country.

Krishna Gopal vs. State of Madhya Pradesh, (1986) Cr.L.J. 396, Krishna Gopal, a partner of M/s Caplic Company, established a factory consisting of a boiler for producing glucose saline in a residential colony in Indore. “No Objection Certificate” to that effect was issued by the Joint Director, Town and Country Planning. The boiler was emitting ash, gases and smoke into the atmosphere and causing a public nuisance to the residents of the colony.

One of the residents, Smt. Sarala Tripathi filed a complaint before the Sub-Divisional Magistrate under Section 133 Cr.P.C. for removal of public nuisance as her husband, who was a heart patient could not sleep due to smoke and noise from the factory. The Sub-Divisional Magistrate asked the Police Officer to inquire into the matter and submit a report. The Sub-Divisional Magistrate, on the basis of the report submitted by the Police Officer, ordered the partners of M/s. Caplic Company to vacate it from the residential locality.

Krishna Gopal, one of the partners of the Caplic Company went on appeal to the Additional Sessions Judge contending that objection by a single individual cannot be accepted as a public nuisance and hence the provisions under Section 133 Cr.P.C. are not attracted. The Addl. Sessions Judge did not agree with the contention of the appellant and modified the orders of the Sub-Divisional Magistrate and ordered for the removal of the boiler and factory from the residential colony. On further appeal, the Indore Bench of the Madhya Pradesh High Court confirmed the orders of the Sub- Divisional Magistrate. The court also appreciated the petitioner Smt. Sarala Tripathi for taking initiative and was awarded damages of Rs.1,000/- towards the cost’s payable by the Caplic Company. The Court also accused the authorities concerned of issuing the ‘No Objection Certificate’.

  1. Civil Procedure Code, 1908:- Section 91 of Code of Civil Procedure, 1908 provides for action in respect of public nuisance. According to Sec. 91 C.P.C., in case of a public nuisance or other wrongful act affecting or likely to affect, the public a suit for declaration and injunction or for such other relief as may be appropriate in the circumstances of the case may be instituted.
  2. by the Advocate General; or
  3. with the leave of the Court, by two or more persons even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.

This section does not limit or affect any right of the suit, which may exist independently of its provisions. Thus, the persons causing air or noise pollution or public nuisance are liable for prosecution.

  1. TRESPASS

The expression Trespass (to land or immovable property) literally means “unauthorised interference with possession or enjoyment of another’s land”. The term ‘trespass’ in its widest sense, signifies “any transgression or offence against the law of nature, of society or of the country, whether relating to a man’s person or to his property”. In this topic, we are concerned with ‘trespass to land’.

Eg. Throwing a heap of stones or discharging filthy water on another’s land. Trespass to land is an offence under Section 441 of Indian Penal Code, 1860.

According to James E. Krier (in his Environmental Protection Law and Policy (1971) p. 211), there is an advantage of trespass action over an action for nuisance. But the action under trespass in environmental cases are rarely invoked. It may be noted that trespass remedy, despite its wide scope, is inadequate to control air pollution.

With regard to trespass in environmental protection law is concerned, Employers of the industries are required to take necessary steps to prevent environmental pollution by regulating the release of wastes and effluents into surrounding lands, rivers, canals etc. The release of such industrial wastes into the surrounding places is called “trespass to land in the environment”-

  1. NEGLIGENCE

In environmental cases, the tort of negligence is utilized, when other torts of nuisance or trespass are not available. An action for negligence may be instituted for injury, damage or physical discomfort, where the effluents, industrial wastes, human excreta etc. are thrown into the municipal drainages, canals, rivers etc. negligently. There are many environmental legislations imposing certain restrictions on the industrialists. They (the industrialists) must strictly comply with the restrictions and see that the industrial wastes are not released negligently.

Meaning:- The term ‘negligence’ means “where a person has a duty to take care and the care is not taken resulting in injury to another”. In other words, infliction of an injury or damage as a result of failure to take care is called ‘negligence’. The tort of negligence may be described as “two in one tort”. That is to say- (1) It is an independent tort, and (2) a mode of committing certain torts. Independent or specific tort in the sense, the plaintiff can sue the defendant for the tort of negligence itself. Mode of committing another tort in the sense, when a plaintiff sues for a specific tort viz. defamation, trespass etc. the plaintiff has to prove the negligence on the part of the defendant. Negligence was made an independent tort in the early 20th century in the case. Blyth vs. Birmingham Water Works Co.

Definition:- Prof. Winfield defined ‘Negligence’ as “the breach of a legal duty to take care, which results in damage, undesired by the defendant to the plaintiff.”

Baron Alderson in Blyth vs. Birmingham Water Works Co., defined “Negligence is the omission to do something, which a reasonable man guided upon those considerations, which ordinarily regulate human affairs, would do or doing something, which a prudent or reasonable man would not do.”

Essentials of Negligence:- The plaintiff in an action for negligence, has to prove the following conditions:

  1. That the defendant owed a duty of care towards the plaintiff (Defendant’s duty to take care of the Plaintiff).
  2. That the defendant committed a breach of such duty (Breach of Duty by the Defendant); and
  3. That the plaintiff suffered damage as a consequence thereof (i.e. proximate damage).
  4. Defendant’s duty of care towards the plaintiff: The plaintiff has to prove that the defendant owed a duty of care towards him. This question came for discussion in the following leading case:

Donoghue vs. Stevenson, (1932) A.C. 562.

In the instant case, Lord Atkin laid down (evolved/coined) the principle of “neighbourhood” to decide the existence of such duty of care.

Facts in Brief:- The plaintiff/appellant, while consuming ginger beer, in a restaurant, found the decomposed body of a snail in the remaining part. Consequently, she suffered from ill-health and sued the manufacturer. The trial court dismissed the suit. On appeal to the House of Lords, Lord Atkin, J., held the manufacturers (defendant/ respondent) liable.

Lord Atkin, while delivering the judgement laid down the principle of “neighbourhood”, which says “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would likely to injure your neighbour”. The expression “neighbour” denotes every person, who is likely to be affected as a consequence of not taking care.

The defendant has a duty to take care of the plaintiff if the injury is foreseeable. If the injury is not foreseeable, the defendant owes no duty of care towards the plaintiff.

In Palsgraf vs. Long Island Rail Road co., (1928) 284 N.Y.339: 162 NE 92, the defendant railway servants, with an intention to help a passenger to board the moving train, pushed in. A packet in his hand fell on rails and exploded. Consequently, some scales at a distance of 25 feet fell down and injured the plaintiff. In an action by the plaintiff, the defendants were held not liable on the ground that the injury was not foreseeable.

  1. Breach of Duty:- The plaintiff has to prove that the defendant committed a breach of duty. Breach of Duty means “non-observance of a duty” or “failure to take care”. Whether the defendant had taken necessary care (standard of care) or not depends upon the following factors:
  2. Importance or utility of the act:- The extent of care to be taken by the defendant depends upon the nature of the act, he was performing. Eg. Establishment of a fertilizer’s factory may cause harm to the surrounding people. But the production of fertilizers increases the output of food grains and promotes the economy of the nation.
  3. The gravity of Risk:- The degree of care to be taken by the defendant, depends upon the gravity of the risk involved in the act. A person handling explosives or dangerous substances has to take greater care when compared with a person handling non-dangerous substances.
  4. Cases of Emergency:- To observe the standard of care, certain speed limits are prescribed for motor vehicles within the town limits. This restriction is liberalised in respect of emergency cases. For instance, excessive speed by Fire Engines to rescue fire accident victims.
  5. Proximate Damage:- (Damage as a consequence of the breach of duty by the defendant): The tort of negligence is not actionable per se. The plaintiff has to prove that he had suffered substantial loss or damage as a consequence of the defendant’s act. The damage suffered by the plaintiff must be proximate, but not very remote.

Relevant environmental protection law cases:-

  1. Union Carbide Corporation vs. Union of India, AIR 1990 SC 2730.
  2. Trail Smelter Arbitration U.S. vs. Canada. 3 R.I.I. 1911 (1938 & 1941).

What is the importance of Absolute Liability in Environmental Protection Law?

The rule of ‘Absolute Liability’ is developed from the rule of ‘Strict Liability’ evolved by Blackburn, J., in 1868 in the case of Rylands vs. Fletcher. The liability of the defendant under the absolute liability is more when compared to the strict liability. Strict liability provides for certain defences to the defendant to get an exemption from the liability, Whereas, the absolute liability provides no defences and the defendant has no chance to escape from the liability. Therefore:

Strict Liability = Liability is irrespective of negligence on the part of the defendant with certain defences. (Rylands vs. Fletcher).

Absolute Liability = Liability is irrespective of negligence on the part of the defendant without defences. (M.C. Mehta vs. Union of India, AIR 1987 SC 1086).

The Rule of Absolute Liability was evolved in 1987 by P.N. Bhagwati, C.J., Supreme Court in M. C Mehta vs. Union of India. There are two leading cases of poisonous gas disaster, leading to the formulation of the principle of absolute liability. They are:

  1. Union Carbide Corporation vs. Union of India, (1986) 2 Com.L.J. 169 (U.S.)- (Popularly known as Bhopal Gas Leak Disaster Case or Bhopal Gas Tragedy) 
  2. C. Mehta and another vs. Shri Ram Foods and Fertilizer Industries and Others. AIR 1987 SC 965. (Oleum Gas Leak Case).

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