Lawyer Training WorkshopPublic Interest Environmental Law

Anuradhapura, Sri LankaJune 25th-29th, 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

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

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: ...

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

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.

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).]

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 sub-section 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, 1997SCHEDULE-10 Standards for Waste from Industrial Units or Projects waste

See pages 58 to 60 of this Chapter

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 physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plant, micro-organism, 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 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;

(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 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 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 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.

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

India – Coastal Zone Regulation Notification (Selected sections)

S.O.114 (E). - Whereas a Notification under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986, inviting objections against the declaration of Coastal Stretches as Coastal Regulation Zone (CRZ) and imposing restrictions on industries, operations and processes in the CRZ was published vide S.O. No.944 (E) dated 15th December, 1990.

And whereas all objections received have been duly considered by the Central Government;Now, therefore, in exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, and all other powers vesting in its behalf, the Central Government hereby declares the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone; and imposes with effect from the date of this Notification, the following restrictions on the setting up and expansion of industries, operations or processes, etc. in the said Coastal Regulation Zone (CRZ).

[3] [ ( i ) For the purposes of this notification, the High Tide Line means the line on the land upto which the highest water line reaches during the spring tide. The High Tide Line shall be demarcated uniformly in all parts of the country by the demarcating authority or authorities so authorised by the Central Government, in accordance with the general guidelines issued in this regard.

[4][(ii) The distance from the High Tide Line shall apply to both sides in the case of rivers, creeks and backwaters and may be modified on a case to case basis for reasons to be recorded in writing while preparing the Coastal Zone Management Plans provided that this distance shall not be less than 100 meters or the width of the creek, river or backwaters, which ever is less. The distance up to which development along rivers, creeks and backwaters is to be regulated shall be governed by the distance up to which the tidal effects are experienced which shall be determined based on salinity concentration of 5 parts per thousand (ppt). For the purpose of this notification ,the salinity measurements shall be made during the driest period of the year and the distance upto which tidal effects are experienced shall be clearly identified and demarcated accordingly in the Coastal Zone Management Plans.; ]

[5][ ……..]

2. Prohibited Activities:

The following activities are declared as prohibited within the Coastal Regulation Zone, namely:[6][(i) setting up of new industries and expansion of existing industries, except (a) those directly related to water front or directly needing foreshore facilities ; (b) Projects of Department of Atomic Energy and [7]{(c) non-polluting industries in the field of information technology and other service industries in the Coastal Regulation Zone of Special Economic Zones (SEZ)}.]

(ii) manufacture or handling or storage or disposal of hazardous substances as specified in the Notifications of the Government of India in the Ministry of Environment and Forests No. S.O. 594(E) dated 28th July 1989, S.O. 966(E) dated 27th November, 1989 and GSR 1037(E) dated 5th December, 1989; [8][except transfer of hazardous substances from ships to ports, terminals and refineries and vice versa in the port areas: ]

[9][Provided that, facilities for receipt and storage of petroleum products and Liquefied Natural Gas as specified in Annexure III appended to this notification and facilities for regasification of Liquefied Natural Gas, may be permitted within the said Zone in areas not classified as CRZ-I (I), subject to the implementation of safety regulations including guidelines issued by the Oil Industry Safety Directorate in the Government of India, Ministry of Petroleum and Natural Gas and guidelines issued by the Ministry of Environment and Forests and subject to further terms and conditions for implementation of ameliorative and restorative measures in relation to the environment as may be stipulated by the Government of India in the Ministry of Environment and Forests]

(iii) Setting up and expansion of fish processing units including warehousing (excluding hatchery and natural fish drying in permitted areas);

[10][Provided that existing fish processing units for modernisation purposes may utilise twenty five per cent additional plinth area required for additional equipment and pollution control measures only subject to existing Floor Space index/ Floor Area Ratio norms and subject to the condition that the additional plinth area shall not be towards seaward side of existing unit and also subject to the approval of State Pollution Control Board or Pollution Control Committee.]

(iv)  setting up and expansion of units/mechanism for disposal of waste and effluents, except facilities required for discharging treated effluents into the water course with approval under the Water (Prevention and Control of Pollution) Act, 1974; and except for storm water drains;

(v) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements. Schemes shall be implemented by the concerned authorities for phasing out the existing practices, if any, within a reasonable time period not exceeding three years from the date of this notification;

(vi) dumping of city or town waste for the purposes of landfilling or otherwise; the existing practice, if any, shall be phased out within a reasonable time not exceeding three years from the date of this Notification;

(vii) dumping of ash or any wastes from thermal power stations;

[11][(viii) Land reclamation, bunding or disturbing the natural course of sea water except those required for conservation or modernisation or expansion of ports, harbours, jetties, wharves, quays, slipways, bridges and sea-links and for other facilities that are essential for activities permissible under the notification or for control of coastal erosion and maintenance or clearing of waterways, channels and ports or for prevention of sandbars or for tidal regulators, storm water drains or for structures for prevention of salinity ingress and sweet water recharge; provided that reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities shall not be permissible;] (xi) Mining of sands, rocks and other substrata materials, except those rare minerals not available outside the CRZ areas;

[12][Provided that in the Union Territory of the Andaman and Nicobar islands, mining of sands may be permitted by the Committee which shall be constituted by the Lieutenant Governor of the Andaman and Nicobar Islands consisting of Chief Secretary; Secretary, Department of Environment; Secretary, Department of Water Resources; and Secretary, Public Works Department. Committee may permit mining of sand from non-degraded areas for construction purposes from selected sites, in a regulated manner on a case to case basis, for a period upto the [13][30th September, 2001]. The quantity of sand mined shall not exceed the essential requirements for completion of construction works including dwelling units, shops in respect of half yearly requirement of [14] [2000-2001 ]annual plans. The permission for mining of sand may be given on the basis of a mining plan from such sites and in such quantity which shall not have adverse impacts on the environment.]

(x) Harvesting or drawal of ground water and construction of mechanisms therefor within 200 m of HTL; in the 200m to 500m zone it shall be permitted only when done manually through ordinary wells for drinking, horticulture, agriculture and fisheries;

[15][Provided that drawal of ground water is permitted, where no other source of water is available and when done manually through ordinary wells or hand pumps, for drinking and domestic purposes, in the zone between 50 to 200 m from High Tide Line in case of seas, bays and estuaries and within 200 m or the CRZ, whichever is less, from High Tide Line in case of rivers, creeks and backwaters subject to such restrictions as may be deemed necessary, in areas affected by sea water intrusion, that may be imposed by an authority designated by State Government/Union Territory Administration.]

[16][(xi) construction activities in CRZ-1 except as specified in Annexure-I of this Notification];

(xii) any construction activity between the Low Tide Line and High Tide Line except facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes, oil, gas and similar pipelines and facilities essential for activities permitted under this Notification; and

(xiii) dressing or altering of sand dunes, hills, natural features including landscape changes for beautification, recreational and other such purpose, except as permissible under this Notification.

3.    Regulation of Permissible Activities:

All other activities, except those prohibited in para 2 above, will be regulated as under:

1. Clearance shall be given for any activity within the Coastal Regulation Zone only if it requires water front and foreshore facilities.

[17][The assessment shall be completed within a period of ninety days from receipt of the requisite documents and data from the project authorities, and the decision shall be conveyed within thirty days thereafter. ]

2.  The following activities will require environmental clearance from the Ministry of Environment and Forests, Government of India, namely:

[18][(i)  Construction activities related to projects of Department of Atomic Energy or Defence requirements for which foreshore facilities are essential such as slipways, jetties, wharves, quays; except for classified operational component of defence projects for which a separate procedure shall be followed. (Residential buildings, office buildings, hospital complexes, workshops shall not come within the definition of operational requirements, except in very special cases and hence shall not normally be permitted in the CRZ

(ii) Operational constructions for ports and harbours and light houses and constructions for activities such as jetties, wharves, quays and slipways, pipelines, conveying systems including transmission lines]

 [19][Provided that for expansion or modernisation of existing ports and harbours including fishing harbours operational constructions for ports and harbours and construction of jetties, wharves, quays, slipways, Single Point Mooring and Single Buoy Mooring and for reclamation for facilities essential for operational requirements of ports and harbours in areas within the existing port limits, except the areas classified as category CRZ-I(i), shall require environmental clearance from Government of India in the Ministry of Surface Transport, which shall take decision on these activities on the basis of Environment Impact Assessment Report.Provided further that reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities shall not be permissible.]

[20][ii) (a) Exploration and extraction of oil and natural gas and all associated activities and facilities thereto;]

(iii) Thermal Power Plants (only foreshore facilities for transport of raw materials facilities for intake of cooling water and outfall for discharge of treated waste water/cooling water); and [21][(iii a) Housing schemes in CRZ area as specified in sub-paragraph (2) of paragraph 6; (iii b) Mining of rare minerals; (iii c) Specified activities/facilities in SEZ subject to one time approval by the Government of India in the Ministry of Environment and Forests to such activities based on the Master Plan of SEZ, spatial distribution of projects to be located in CRZ and such other information as may be required for the purpose. ] (iv) [22][All other activities with investment exceeding rupees five crores except those activities which are to be regulated by the concerned authorities at the State/Union Territory level in accordance with the provisions of paragraph 6, sub-paragraph (2) of Annexure 1 of the notification. ]

(3) (i) The Coastal States and Union Territory Administrations shall prepare, within a period of one year from the date of this Notification, Coastal Zone Management Plans identifying and classifying the CRZ areas within their respective territories in accordance with the guidelines given in Annexures I and II of the Notification and obtain approval (with or without modifications) of the Central Government in the Ministry of Environment & Forests;

(ii) Within the framework of such approved plans, all development and activities within the CRZ other than those covered in para 2 and para 3(2) above shall be regulated by the State Government, Union Territory Administration or the local authority as the case may be in accordance with the guidelines given in Annexures-I and II of the Notification; and

(iii) In the interim period till the Coastal Zone management Plans mentioned in para 3(3) (i) above are prepared and approved, all developments and activities within the CRZ shall not violate the provisions of this Notification. State Governments and Union Territory Administrations shall ensure adherence to these regulations and violations, if any, shall be subject to the provisions of the Environment (Protection) Act, 1986.

ANNEXURE – I COASTAL AREA CLASSIFICATION AND DEVELOPMENT REGULATIONS

Classification of Coastal Regulation Zone:

6(1) For regulating development activities, the coastal stretches within 500 metres of High Tide Line on the landward side are classified into four categories, namely:

Category I (CRZ-I):

(i) Areas that are ecologically sensitive and important, such as national parks/marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals/coral reefs, areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty/historically/heritage areas, areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time.

(ii)  Area between Low Tide Line and the high Tide Line.

Category-II (CRZ-II):

The areas that have already been developed upto or close to the shoreline. For this purpose, "developed area" is referred to as that area within the municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewerage mains.

Category-III (CRZ-III):

Areas that are relatively undisturbed and those which do not belong to either Category-I or II. These will include coastal zone in the rural areas (developed and undeveloped) and also areas within Municipal limits or in other legally designated urban areas which are not substantially built up. …

Norms for Regulation of Activities.

6(2) The development or construction activities in different categories of CRZ area shall be regulated by the concerned authorities at the State/Union Territory level, in accordance with the following norms:

CRZ-I

[23][No new construction shall be permitted in CRZ I except (a) Projects relating to Department of Atomic Energy and (b) Pipelines, conveying systems including transmission lines and (c) facilities that are essential for activities permissible under CRZ I, Between the LTL and HTL,

activities are specified under paragraph 2 (xii) may be permitted. In addition, between LTL and HTL in areas, which are not ecologically sensitive and important, the following may be permitted;(a) Exploration and extraction of Natural Gas, (b) activities as specified under proviso of sub paragraph (ii) of paragraph 2; (c) Construction of dispensaries, schools, public rain shelters, community toilets, bridges, roads , jetties , water supply , drainage , sewerage which are required for traditional inhabitants of the Sunderbans Bio-sphere reserve area of West Bengal , on a case to case basis, by the West Bengal State Coastal Zone Management Authority and [24]

{by the West Bengal State Coastal Zone Management Authority} ]

CRZ-II

i. [25][Buildings shall be permitted only on the landward side of the existing road (or roads approved in the Coastal Zone Management Plan of the area) or on the landward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio: Provided that no permission for construction of buildings shall be given on landward side of any new roads (except [26]roads approved in the Coastal Zone Management Plan) which are constructed on the seaward side of an existing road.]

[27][Provided further that the above restrictions on construction, based on existing roads/authorised structures, roads proposed in the approved Coastal Zone Management Plans, new roads shall not apply to the housing schemes of State Urban Development Authorities implemented in phases for which construction activity was commenced prior to 19th February, 1991 in at least one phase and all relevant approvals from State/Local Authorities were obtained prior to 19th February, 1991; in all such cases specific approval of the Ministry of Environment and Forests would be necessary on a case to case basis.]

ii. Reconstruction of the authorised buildings to be permitted subject to the existing FSI/FAR norms and without change in the existing use.

iii. The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style.

CRZ-III

(i) The area upto 200 metres from the High Tide Line is to be earmarked as ‘No Development Zone’.

[28][Provided that such area does not fall within any notified port limits or any notified Special Economic Zone.]

.[29][ No construction shall be permitted within this zone except for repairs of existing authorised structures not exceeding existing FSI, existing plinth area and existing density, and for permissible activities under the notification including facilities essential for such activities.]

However, the following uses/activities  may be permissible in this zone – agriculture, horticulture, gardens, pastures, parks, play fields, forestry, [30][mining of rare minerals] and salt manufacture from sea water.

[31][(ia) Construction of dispensaries, schools, public rain shelters, community toilets, bridges, roads and provision of facilities for water supply, drainage, sewerage which are required for the local inhabitants may be permitted, on a case to case basis, by the Central Government or Coastal Zone Management Authority constituted for the State/Union Territory.

Provided that construction of units or ancillary thereto for domestic sewage treatment and disposal shall be permissible notwithstanding anything contained in sub-paragraph (iv) of paragraph 2 of this notification.]

(ii) Development of vacant plots between 200 and 500 metres of High Tide Line in designated areas of CRZ-III with prior approval of Ministry of Environment and Forests (MEF) permitted for construction of hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as stipulated in the guidelines at Annexure-II.

(iii) [32][Construction/reconstruction of dwelling units between 200 and 500 metres of the High TideLine permitted so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and gaothans. Building permission for such construction/reconstruction will be subject to the conditions that the total number of dwelling units shall not be more than twice the number of existing units; total covered area on all floors shall not exceed 33 percent of the plot size; the overall height of construction shall not exceed 9 metres and construction shall not be more than 2 floors ground floor plus one floor. Construction is allowed for permissible activities under the notification including facilities essential for such activities. An authority designated by State Government/Union Territory Administration may permit construction of public rain shelters, community toilets, water supply, drainage, sewerage, roads and bridges. The said authority may also permit construction of schools and dispensaries, for local inhabitants of the area, for those panchayats the major part of which falls within CRZ if no other area is available for construction of such facilities].

(iv) Reconstruction/alterations of an existing authorised building permitted subject to (i) to (iii) above.

[33][(v) In notified SEZ, construction of non–polluting industries in the field of information technology and other service industries, desalination plants ,beach resorts and related recreational facilities essential for promotion of SEZ as approved in its Master Plan by SEZ Authority may be permitted.]

CRZ-IV …

Annexure – II

Guidelines for Development of Beach Resorts/Hotels in the Designated areas  of Designated Areas of CRZ-III for Temporary Occupation  of Tourist /Visitors , within prior approval of the Ministry of Environment and Forests.

7(1) Construction of beach resorts/hotels with prior approval of MEF in the designated areas of CRZ-III for temporary occupation of tourists/visitors shall be subject to the following conditions:

[36][(i)The project proponents shall not undertake any construction (including temporary constructions and fencing or such other barriers) within 200 metres (in the landward wide) from the High Tide Line and within the area between the Low Tide and High Tide Line; (ia) live fencing and barbed wire fencing with vegetative cover may be allowed around private properties subject to the condition that such fencing shall in no way hamper public access to the beach; (ib) no flattening of sand dunes shall be carried out; (ic) no permanent structures for sports facilities shall be permitted except construction of goal posts, net posts and lamp posts; (id) construction of basements may be allowed subject to the condition that no objection certificate is obtained from the State Ground Water Authority to the effect that such construction will not adversely affect free flow of ground water in that area. The State Ground Water Authority shall take into consideration the guidelines issued by the Central Government before granting such no objection certificate.

Explanation: Though no construction is allowed in the no development zone for the purposes of calculation of FSI, the area of entire plot including [37][that  portion] which falls within the no development zone shall be taken into account.]

(ii) The total plot size shall not be less than 0.4 hectares and the total covered area on all floors shall not exceed 33 per cent of the plot size i.e. the FSI shall not exceed 0.33. The open area shall be suitably landscaped with appropriate vegetal cover;

(iii) The construction shall be consistent with the surrounding landscape and local architectural style;

(iv) The overall height of construction upto highest ridge of the roof, shall not exceed 9 metres and the construction shall not be more than 2 floors (ground floor plus one upper floor);

(v) Ground water shall not be tapped within 200m of the HTL; within the 200 metre – 500 metre zone, it can be tapped only with the concurrence of the Central/State Ground Water Board;

(vi) Extraction of sand, leveling or digging of sandy stretches except for structural foundation of building, swimming pool shall not be permitted within 500 metres of the High Tide Line;

(vii) The quality of treated effluents, solid wastes, emissions and noise levels, etc. from the project area must conform to the standards laid down by the competent authorities including the Central/State Pollution Control Board and under the Environment (Protection) Act, 1986;

(viii) Necessary arrangements for the treatment of the effluents and solid wastes must be made. It must be ensured that the untreated effluents and solid wastes are not discharged into the water or on the beach; and no effluent/solid waste shall be discharged on the beach;

(ix) To allow public access to the beach, at least a gap of 20 metres width shall be provided between any two hotels/beach resorts; and in no case shall gaps be less than 500 metres apart; and

(x) If the project involves diversion of forest land for non-forest purposes, clearance as required under the Forest (Conservation) Act, 1980 shall be obtained. The requirements of other Central and State laws as applicable to the project shall be met with.

(xi) Approval of the State/Union Territory Tourism Department shall be obtained.

7(2) In ecologically sensitive areas (such as marine parks, mangroves, coral reefs, breeding and spawning grounds of fish, wildlife habitats and such other areas as may notified by the Central/State Government/Union Territories) construction of beach resorts/hotels shall not be permitted.

NOTES

[3] The clause “ For the purpose of this notification , the High Tide Line means the line on the land upto which the highest water line reaches during the spring tide and shall demarcated uniformly in all parts of the country by the demarcating authority so authorized by the Central Government in consultation with the Surveyor General of India” has been substituted by S.O.1122(E), dated 29th December, 1998. Gazette of India (Extra).No.849, dated 29-12-1998.

[4] Inserted as per S.O.(E).No. 550 (E), dated 21st May, 2002.

[5] Note omitted by S.O.(E).No. 550 (E), dated 21st May, 2002.

[6] Substituted the earlier clause “ Provided that the Government of India in the Ministry of Provided that Government of India in the Ministry of Surface Transport, on a case to case basis, may permit storage of the petroleum products as specified in Annexure-III appended to this notification within the existing port limits of existing ports and harbours and in these areas of ports that have not been classified as CRZ-I subject to implementation of safety regulations including guidelines issued by Oil Safety Directorate in the Government of India. Ministry of Petroleum and Natural Gas after ensuring proper location of site and availability of necessary equipment to meet the safety norms and the exigencies arising due to any accident or spillage” by S.O.329(E), dated 12th April,2001.Published in the Gazette of India. Extra.No. 237 dated 12th April,2001.

[7] Inserted by S.O.(E).No.550(E), dated 21st May, 2002.

[8] Added by S.O.494(E), dated 9th July, 1997. Gazette of India (Extra) No. 393.Part II. Sec. 3(ii), dated 9th July, 1997.

[9] The earlier clause “Provided the Government of India in the Ministry of Surface Transport, on a case basis, may permit storage of the petroleum products as specified in Annexure-A-III appended to this notification within the existing port limits of existing ports and harbours and in those areas of ports that have not been classified as CRZ-I subject to implementation of safety regulations including guidelines issued by the Oil Safety Directorate in the Government of India , Ministry of Petroleum and Natural Gas after ensuring proper location of sue and availability of necessary equipment to meet the safety norms and exigencies arising due to any accident or spillage ” is substituted by S.O. 329(E), dated 12th April, 2001.Gazette of India, Extra. No. 237, dated 12th April,2001

[10] Proviso inserted by notification No. 494 (E) dated 9-7-1997.Gazette of India, Extra. No. 393, dated 9th July,1997

[11] The clause “land reclamation, bunding or disturbing the natural course of sea water except those required for construction of ports, harbours, jetties, wharves, quays, slipways, bridges and sea-links and for other facilities that are essential for activities permissible under the notification or for control of coastal erosion and maintenance or clearing of water ways, channels and ports or for prevention of sandbars or for tidal regulators, storm water drains or for structures for prevention of salinity ingress and sweet water recharge. Substituted by S.O. 329(E),dated 12th April,2001. Gazette of India, Extra No. 237 dated 12th April, 2001.

[12] Inserted by S.O. 73(E), dated 31st January,1997. Gazette of India, Extraordinary No. 73(E), dated 31st January, 1997. Dates extended from time to time.

[13] The date “30th September, 1999” has been substituted by S.O.998(E), dated 29th September, 1999. Gazette of India. Extra , Part-II, Section 3 (ii) dated 30th September, 1999. and later on substituted by .S.O. 900(E), Dated 29th September,2000.

[14] The clause “ requirements of 1998-99 “has been substituted by S.O.998(E), dated 29th September, 1999. Gazette of India. Extra , Part-II, Section 3 (ii) dated 30th September, 1999.

[15] Proviso inserted by S.O. 494(E), dated 9th July, 1997. Gazette of India. Extra No. 393, Dated 9th July,,1997.

[16] The clause “ construction activities in ecologically sensitive areas as specified in Annexure. I of this notification “ is substituted by S.O. 329(E), dated 12th April, 2001. Gazette of India, Extra. No. 237 dated 12th April, 2001.

[17] Inserted by S.O.(E). 550(E).Dated 21st May, 2002.

[18] The clauses “i)Construction activities related to Defence requirements for which foreshore facilities are essential (e.g. slipways, jetties, etc.); except for classified operational component of defence projects for which a separate procedure shall be followed. (Residential buildings, office buildings, hospital complexes, workshops shall not come within the definition of operational requirements except in very special cases and hence shall not normally be permitted n the CRZ).(ii)operational constructions for ports and harbours and light houses and constructions for activities such as jetties, wharves, quays and slipways;” were substituted by S.O. 329(E), dated 12th April, 2001. Gazette of India, Extra. No. 237 dated 12th April, 2001.

[19] Proviso inserted by SO. 494(E), dated 9th July, 1997

[20] Inserted by S.O.730(E), dated 4th August, 2000, Gazette of India , Extra, Part II, Sec. 3 (ii), dated 4th August, 2001.

[21] Inserted by S.O.550(E), dated 21st May, 2002.

[22] Substituted by S.O.494(E), dated 9th July, 1997. Gazette of India, Extra No. 393 dated 9th July,1997.

[23] The existing clause “ No new construction shall be permitted within 500 metres of the High Tide Line. No construction activity, except as listed under 2(xii), will be permitted between the Low Tide Line and the High Tide Line provided that construction of dispensaries, schools, public rain shelters, community toilets, bridges, roads, jetties, water supply, drainage, sewerage which are required for traditional inhabitants of the Sunderbans Bio-sphere reserve area, West Bengal, may be permitted, on a case to case basis, by an authority designated by the State Government. “substituted by S.O. 329(E), dated 12th April,2001, Gazette of India, Extra, No. 237 dated 12th April, 2001.

[24] Inserted by S.O.550(E), dated 21st May, 2002.

[25] Substituted the clause “ Buildings shall be permitted neither on the seaward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) nor on seaward side of existing authorized structures . Buildings permitted on the landward side of the existing and proposed roads/existing authorized structures shall be subject to the existing local Town and Country planning regulations including the existing norms or FSI/FAR. “ by notification, S.O.494(E), 9th July, 1997.

[26] The clause “ roads proposed in the approved Coastal Zone Management Plan” has been substituted by S.O.735(15), dated 21st October, 1997.

[27] Inserted by S.O.550(E), dated 21st May, 2002.

[28] Inserted by S.O. 550 (E). dated 21st May, 2002.

[29] The words “ No construction shall be permitted within this zone except for repairs of existing authorized structures not exceeding existing FSI, existing plinth area and existing density” substituted by notification No. 494(E), dated 9-7-1997

[30] Inserted by S.O.550(E), dated 21st May, 2002.

[31] Inserted by S.O.550 (E), dated 21st May, 2002.

[32] Inserted by S.O.494(E), dated 9th July,1997.

[33] Inserted by S.O.550 (E), dated 21st May, 2002.

[34] Inserted by notification No. 73(E) dated 31-1-1997. Gazette of India, dated 31st January, 1997.

[35] The dates “30th day of September, 1999” has been substituted by S.O.998(E), dated 29th September,1999 as “30th day of September, 2000” later on substituted by S.O. 900(E), dated 29th September, 2000, Gazette of India, Extra. 640, dated 29th September,2000.

[36] This clause was inserted by S.O.595(E), dated 18th August, 1994 with the following proviso “ Provided that the Central Government may, after taking into account geographical features and overall Coastal Zone Management Plans, and for reasons to be recorded in writing, permit any construction subject to the conditions and restrictions as it may deem fit. But Supreme Court of India has quashed the said amendment by judgment reported in 1996(4) JT 263.

[37] Supreme Court by its judgment in JT 1996(4) SC 263 modified the amendment and hand that a private owner of land in NDZ shall be entitled to take into account half of such land for the purpose of permissible –FSI in respect of the construction undertaken by him outside the NDZ. (Para 33(v).

[38] Inserted by S.O.494(E), dated 9th July, 1997. Gazette of India, Extra. No. 393, dated 9th July, 1997

[39] The words “Port Areas” substituted by S.O.No. 329 dated 12th April, 2001. Gazette of India, Extra No. 237 dated 12th April,2001.

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 sub-rule (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 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, 1986SCHEDULE I

EMISSION STANDARDS FOR POLLUTANTS FROM VARIOUS INDUSTRIES

8. Dye and Dye Intermediate Industries  

 

Suspended Solids

Concentration not to exceed milligrammes per litre (except for pH, temperature and bio-assay)  

pH Temperature         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)

100 6 to 8.5 Shall not exceed 5oC above the ambient temperature of the receiving body.

0.01 0.1

2.0 3.0 5.0 3.0 2.0 1000 1000 1.0

1090% 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 (Waste-waterdischarge)

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

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

S.No. ParameterStandards

Inland surface Water Public Sewers Land for

irrigation Marine coastal areas

 (a)  (b)  (c) (d)

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. 100 600 200 a) For process waste

water-100

(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

14. *** * --- *** ---

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 mg/l Max. 1.0   -   -  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 max. 0.2  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

17. Cadmium (as cd) mg/l,Max. 2.0  1.0 -  2.0

18. Hexavalent chromium (as Cr+6), mg/l, Max.

0.1  2.0  -  1.0

19. Total chromium as Cr) mg/l, Max 2.0  2.0  -  2.0

20. Copper (as Cu) mg/l, Max. 3.0  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

124. *** *  *  *  * 125. *** *  *  *  * 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 (as P), mg/l Max.

5.0  -   - - 

131. ***  *  *  *  * 

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 10-7  10-7  10-8  10-7

micro curie/ml

(b) Beta emitter microcurie/ml 10-6  10-6 10-7  10-6

35. Bio-assay test 90% survival of fish after 96 hours in 100% effluent

90% survival of fish after 96 hours in 100% effluent

90% survival of fish after 96 hours in 100% effluent

90% survival of fish after 96 hours in 100% 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/l140. *** * * * *

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/SlurryRegulatory quantities: 200 kilogrammes per year calculated as Acids/Alkalies. Wastes Category 17: Off-specification and discarded products. Regulatory quantities: Irrespective of any quantity.

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.

(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 – Environment Protection RulesIndustrial Effluents Standards

Tolerance Limits for Industrial Effluents Discharged into Inland Surface Waters

Part - 1Tanning Industry

Characteristics Tolerance Limit

Colour and odour Absent * *

Total dissolved solids, mg/L, Max 2100

Suspended solids, mg/L, Max 100

Biochemical oxygen demand  

(5 days at 200 C) mg/L, Max 100

Chlorides as (Cl) mg/L, Max 600

Hexavalent chromium (as Cr) mg/L, Max 0.1

Total chromium (as Cr) mg/L, Max 2

Sulphide (as S) mg/L, Max 2

Sodium %, Max 60

Chemical oxygen demand mg/L, Max 250

pH Value 6.0-9.0

** For colour and odour, no requirements have been laid down standard but it is recommended that, as far as practicable, colour and unpleasant odour should be absent in the standards.

Part - IIWool Processing Industries

Characteristics Tolerance Limit

Suspended Solids, mg/L 100

Biochemical Oxygen Demand (5 days at 200 C), mg/L 100

Oil and grease, mg/L 10

Chemical Oxygen Demand, mg/L 250

Total Chromium (as Cr), mg/L 2

Sulphide (as S), mg/L 2

Phenolic compounds (as C6 h5 OH), mg/L 5

pH Value 5.5-9.0

Temperature 0 C 40

Part - IIIFermentation Industries

Characteristics Tolerance Limit

pH 5.5 to 9.0

TSS, mg/1, max 100

BOD 5 days at 200 C mg/l, max 60

Part - IVVegetable Ghee and Oil Industries

Characteristics Tolerance Limit

BOD5 days at 200 C, mg/L Max 100

COD, mg/l, Max 250

pH 9-Jun

Oil and Grease, mg/l, Max 10

Nickel, mg/l, Max 3

art - VPaper and Pulp Industries

Characteristics Tolerance Limits

pH 5.5-9

Suspended Solids, mg/l 100

BOD5 days at 200C, mg/l Max 100

Part - VIDairy Industry

S.N. Characteristics Tolerance Limits

1 pH 5.5-8.5

2 TSS mg/litre, Max 150

3 BOD (5 days at 200 C) mg/litre, Max 100

4 Oil and Grease, mg/litre, Max 10

5 COD, mg/litre, Max 250

Part-VIISugar Industry

S.N. Characteristics Tolerance Limits

1 pH 5.5-8.5

2 TSS mg/litre, Max 100

3 BOD (5 days at 200 C) mg/litre, Max 100

4 COD, mg/litre, Max 250

Part-VIIICotton Textile Industry

S.N. Characteristics Tolerance Limits

1 pH 6.0-9.0

2 TSS mg/litre, Max 150

3 BOD (5 days at 200 C) mg/litre, Max 100

4 COD, mg/litrre, Max 250

Part-IXSoap Industries

S. N. Characteristics Tolerance Limits

1 BOD(5 days at 200 C) mg/litre, Max 100

2 COD mg/ litre, Max 250

3 pH 6.0-9.0

4 TSS mg/litre, Max 200

5 Oil & Grease mg/litre, Max 10

6 Phenolic Compound mg/litre, Max 1

7 COD, mg/litre, Max 250

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 environmentand includes: (a) impairment of, or damage to, human health and safety or to biodiversity orproperty; (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 includingpoultry, cattle farming, animal husbandry, residues from the use of fertilizers, pesticidesand 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, combustionexhaust, exhaust gases, noxious gases, hazardous substances and radioactive substances;

(iv) "biodiversity" or "biological diversity" means the variability among livingorganizations from all sources, including inter alia terrestrial, marine and other aquaticecosystems and ecological complexes of which they are part; this includes diversitywithin species, between species and of ecosystems;

(v) "council" means the Pakistan Environmental Protection Council established undersection 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-organismcommunities and their non-living environment interacting as a functional unit;

(viii) "effluent" means any material in solid, liquid or gaseous form or combinationthereof being discharged from industrial activity or any other source and includes aslurry, suspension or vapour;

(ix) "emission standards" means the permissible standards established by the FederalAgency or a Provincial Agency for emission of air pollutants and noise and for dischargeof 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 inter-relationships 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 ofPakistan as may be specified by notification under section 7 of the Territorial Waters andMaritime 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;

(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, non-governmental 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 Agencyestablished under section 8;

(xxxviii) “regulations” means regulations made under this Act;

(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, theFederal 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: (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 StandardsNational Environmental Quality Standards for Municipal and Liquid Industrial Effluents

See pages 61 to 62 of this Chapter.

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.

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.

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 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 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 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.

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 – Coast Conservation Act, 1981

12. (1) The Director shall, not later than three years after the appointed date, submit to the Council a comprehensive Coastal Zone Management Plan (hereinafter referred to as “the Plan”), based on the results of the survey made in pursuance of section 11. The Plan shall include—

(a) the guidelines to be used in determining the suitability of particular development activities in the Coastal Zone;

(b) proposals which deal with the following subjects: (i) land use; (ii) transport facilities; (iii) preservation and management of the scenic and other natural resources; (iv) recreation and tourism; (v) public works and facilities, including waste disposal facilities, harbours, and power plants; (vi) mineral extraction; (vii) living resources; (viii) human settlements; (ix) agriculture; and (x) industry, within the coastal zone;

(c) proposals for the reservation of land or water in the Coastal Zone for certain uses, or for the prohibition of certain activities in certain areas of the Coastal Zone;

(d) a comprehensive programme for the utilization of manpower displaced as a direct result of more effective Coastal Zone regulation; and

(e) recommendations for strengthening Governmental policies and powers and the conduct of research for the purposes of coast conservation. …

13. The Minister may, having regard to the long term stability, productivity and environmental quality of the Coastal Zone, prescribe the criteria to be used in determining whether a permit should be issued under section 14 upon an application made in that behalf to the Director after the appointed date and prior to the date of coming into operation of the Plan.

PART III - PERMIT PROCEDURE

14. (1) Notwithstanding the provisions of any other law, no person shall engage in any development activity other than a prescribed development activity within the Coastal Zone except under the authority of a permit issued in that behalf by the Director.

(2) The Minister may, having regard to the effect of those development activities on the long term stability, productivity, and environmental quality of the Coastal Zone, prescribe the categories of development activity which may be engaged in within the Coastal Zone without a permit issued under subsection (1).

(3) An application for a permit to engage in any development activity within the Coastal Zone shall be made to the Director in the prescribed manner. Every such application shall be in the prescribed form, shall contain the prescribed particulars and be accompanied by the prescribed fee.

15. No permit shall be issued by the Director under this Part unless the proposed development activity—

(a) is consistent with the Coastal Zone Management Plan and any regulations made to give effect to such Plan, or if the application is received prior to the date of coming into operation of such Plan, satisfies the criteria prescribed under section 13, and

(b) will not otherwise have any adverse effect on the stability, productivity, and environmental quality of the Coastal Zone.

16. (1) Upon receipt of an application for a permit to engage in a development activity within the Coastal Zone, the Director may require the applicant to furnish an environmental impact assessment relating to such development activity and it shall be the duty of the applicant to comply with such requirement. Every environmental impact assessment furnished under this section shall contain such particulars as may be prescribed.

(2)(a) The Director shall, on receipt of an environmental impact assessment furnished to him by an applicant in compliance with any requirement imposed on such applicant under subsection (1)—a. submit a copy of such assessment to the Council for its comments, if any; and

(b) by notice published in the Gazette, notify the place and times at which such assessment will be available for inspection by the public, and invite the public to make its comments, if any, thereon.

(3)(a) The Council shall, within sixty days of an environmental impact assessment being submitted to it under subsection (1), make its comments, if any, thereon to the Director.

(b) Any member of the public may within thirty days of the date on which a notice under paragraph (b) of subsection (2) relating to such assessment is published in the Gazette make his comments, if any, thereon to the Director.

(4) In deciding whether to issue a permit under section 14 authorizing a person to engage in a development activity within the Coastal Zone, the Director shall have regard to any comments made under subsection (3) on the environmental impact assessment, if an, relating to such activity and any development projects commenced by the Urban Development Authority in any area declared to be an urban development area under the provisions of the Urban Development Authority Law.

(5) The Director shall, within sixty days of the receipt by him of any comments made under subsection (3), make the decision referred to in subsection (4).

17. The Director may attach to any permit issued under this Part, such conditions as he may consider necessary for the proper management of the Coastal Zone, having regard to the Coastal Zone Management Plan, or to any scheme of work for coast conservation.

18. (1) A permit issued under section 14 shall remain in force for such period as the Director may specify therein.

(2) The holder of a permit may, not less than one month prior to the date of expiration of such permit, apply for a renewal of such permit. An application for renewal of a permit shall be in the prescribed form and shall be accompanied by the prescribed fee.

(3) Where the holder of a permit desires to transfer the permit to another person, such holder may apply to the Director for permission to effect such transfer, and the Director may by order permit such transfer subject to the payment of the prescribed fee.

42. DEFINITIONS

In this Act, unless the context otherwise requires—

“coast” means the border of land which is adjacent to the sea and not covered by sea water;

“coast conservation” means the protection and preservation of the coast from sea erosion or encroachment by the sea, and includes the planning and management of development activity within the Coastal Zone;

“Coastal Zone” means that area lying within a limit of three hundred metres landwards of the Mean High Water line and a limit of two kilometers seawards of the Mean Low Water line and in the case of rivers, streams, lagoons, or any other body of water connected to the sea either permanently or periodically, the landward boundry shall extend to a limit of two kilometers measured perpendicular to the straight base line drawn between the natural entrance points thereof and shall include the waters of such rivers, streams, and lagoons or any other body of water so connected to the sea;

“coastline” means the line of intersection of the plane of water at Mean Sea Level with the coast;

“development activity” means any activity likely to alter the physical nature of the Coastal Zone in any way, and includes the construction of buildings and works, the deposit of wastes or other material from outfalls, vessels or by other means, the removal of sand, coral, shells, natural vegetation, seagrass or other substances, dredging and filling, land reclamation and mining or drilling for minerals, but does not include fishing;

“environmental impact assessment” means a written analysis of the predicted environmental consequences of a proposed development activity, and includes a description of the avoidable and unavoidable adverse environmental effects of the proposed development activity, a description of alternatives to the activity which might be less harmful to the environment of the Coastal Zone, together with the reasons why such alternatives were rejected, and a description of any irreversible or irretrievable commitments of resources required by the proposed development activity;

“foreshore” means that area of the shore of the sea between the Mean High Water and the Mean Low Water;

“land” includes the sea bed and anything resting on the sea bed or shore of the sea;

“local authority” means any Development Council, Municipal Council, Town Council or Village Council, and includes any Authority created and established by or under any law to exercise, perform and discharge powers, duties, and functions corresponding or similar to the powers, duties and functions exercised, performed and discharged by such Council;

“material” includes minerals, turf, seagrass and any other vegetation;

“Mean High Water Line” means plus 0.6 metres from the Mean Sea Level;

“Mean Low Water Line” means minus 0.6 metres from the Mean Sea Level;

“scheme of work” in relation to coast conservation or the Coastal Zone means any work of construction, alteration, demolition, excavation, reclamation, repair, or maintenance and includes dredging and drilling, the removal or dumping of any material or the sowing or planting of vegetation, for the purpose of protecting the Coastal Zone from sea erosion or encroachment by the sea, or for the development of the Coastal Zone;

“sea” includes the water of any channel, creek, bay, estuary or any river extending up to the furthermost point to which the tide flows;

“straight base line” means the base line specified in the Proclamation made under section 2 of the Maritime Zones Law declaring the territorial sea of Sri Lanka, being the base lines from which the limits of such territorial sea are measured; and

“territorial sea” means the area of sea declared to be the territorial sea of Sri Lanka by the Proclamation made under the Maritime Zones Law.

Sri Lanka - General Standards for Industrial Waste Water (Effluents) Discharged Into Inland Surface Waters (After Treatment)

pH -- 6.0-8.5Suspended Solid (mg/l) --50Temperature (C) -- 40BOD (5 days at 20 0 C )(mg/l) -- 30COD (mg/l) -- 250Phenolic compounds (as C6H5OH) (mg/l) --1.0Cyanides (mg/l) -- 0.2Sulphides (mg/l) -- 2.0Fluorides (mg/l) -- 2.0Total residual Chlorine (mg/l) -- 1.0Ammonical Nitrogen (as N) (mg/l) -- 50

Arsenic (as As) (mg/l) -- 0.2Cadmium (as Cd) (mg/l) -- 0.1Chromium (as Cr) (mg/l) -- 0.1Copper (as Cu) (mg/l) -- 3.0Lead (as Pd) (mg/l) -- 0.1

SUPREME COURT JUDGMENTS

Bangladesh -- Dr. Mohiuddin Farooque vs Government of Bangladesh WP 92 of 1996

48 DLR, 434 HCDecided 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 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.

Bangladesh -- Dr. Mohiuddin Farooque vs Government of BangladeshWP 998 of 1994, CA 24 of 1995

49 DLR 1, 434 HCDecided 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 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.

India – M.C. Mehta v. Union of IndiaWP 12739 of 1985

AIR 1987 SC 1086, (1986) 2 S.C.C. 175Decided 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.

India -- M.C. Mehta v Union of India and OthersWP 3727 of 1985 (Kanpur Tanneries case)

AIR 1988 SC 1037Decided 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 BiharWP 381 of 1988

AIR 1991 SC 420, 424Decided 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 281Decided 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 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 law-abiding 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 NathWP 182 of 1996

(1997) 1 S.C.C. 388Decided 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 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. NayuduCA 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 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 'non-negligible 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 OthersCA 9323-25/1994

AIR 1999 SC 2468Decided 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 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.

India -- Goa Foundation v. Diksha Holdings Pvt. LtdCA 401 of 2000

AIR 2000 SC 4065; 2001 (2) SCC 97Decided 10 November 2001

There should be a proper balance between the protection of environment and the development process. The Society shall have to prosper, but not at the cost of the environment and in the similar vein, the environment shall have to be protected but not at the cost of the development of the society - there shall have to be both development and proper environment and as such, a balance has to be found out and administrative actions ought to proceed in accordance therewith and not de hors the same. In the case of Indian Council for Enviro-Legal Action v. Union of India and Ors., 1996 (5) SCC 281, this Court had the occasion to deal with the question of protection of 6000 kms long coast line of India and the Court emphasised that it would be the duty and responsibility of the coastal States and Union Territories in which the stretches exist, to see that the notification issued under the provisions of Environment (Protection) Rules as well as the notification issued, declaring the coastal stretches should be properly and duly implemented and the various restrictions on the setting up and expansion of industries, operation or process etc. in the Regulation Zone should be strictly enforced. The Court had indicated that with a view to protect the ecological balance in the coastal areas, notifications having been issued by the Central Government there ought not to be any violation and the prohibited activities should not be allowed to come up within the area declared as CRZ notification. The Court also emphasised that no activities which would ultimately lead to unscientific and unsustainable development and ecological destruction should at all be allowed and the Courts must scrupulously try to protect the ecology and environment and should shoulder greater responsibility of which the Court can have closer awareness and easy monitoring. …

Let us now examine the case in hand to find out as to whether there exists any infraction of any rule, regulation or law by granting environmental clearance in favour of the respondent to have the hotel complex and whether there exists any authentic data or material before us for coming to a conclusion that by allowing such hotel complex at the disputed plot would upset the environment and ecological balance of the area and would really have the effect of damaging the pristine beach with sand dunes, if any. …

According the appellant, the plot of land on which the respondent has been granted permission to construct the hotel is CRZ-I and by allowing such construction of hotel, necessarily, there will be dressing or altering of sand dunes, which is a prohibited activity under paragraph 2(xiii) of the Notification, whereas according to the Union Government, the State Government and the hotelier, the plot of land falls under Category CRZ-III and the same being beyond 200 meters from the High Tide Line, developmental activities for construction of hotel is permissible with the proper approval of the Ministry of Environment and Forest and as such there has been no infraction of the CRZ notification. In fact that High Court in the impugned judgment has come in to t finding that the land in question falls within the Category CRZ-III of the Coastal Regulation Zone Notification, issued by the Government of India and, therefore, one question has to be answered whether the land has been appropriately categorised as CRZ-III, as contended by the respondent or it ought to have been classified as CRZ-I, as contended by the appellant. …

Coming to the materials on record, we find in the High Court itself, the Ministry of Environment and Forest, Govt. of India had filed the affidavit, indicating therein that as per the information submitted by the Govt. of Goa, the area of the proposed construction is designated as settlement area and the same has been categorised as CRZ-III in the approved Coastal Zone Management Plan of Goa. It was also averred in the said affidavit that the proposal for construction of hotel was thoroughly examined by the Ministry, including a visit to the site where the construction of hotel is proposed and the sand dunes and only after satisfying that the construction of the project was not on the sand dunes, the approval of the project was given by the Union Ministry of Environment and Forest. …

The disputed plot of land in the case in hand falls within the aforesaid area and, therefore, it is crystal clear that the area in question was proposed to be used for settlement (beach/resort). Dr. N.P.S. Varde, on receipt of the letter from the Ministry of Environment and Forest vis-a-vis the representation made by the Goa Foundation on the subject of environmental clearance to the Goa Resort Hotel at Nagorcem, examined the matter in consultation with the Town and Country Planning Department and had categorically indicated that the area falls within CRZ-III Category as per the CZMP approval dated 27th September, 1996 issued by the Ministry of Environment and Forest, New Delhi. In the said report, he had indicated the existence of sand dunes and the number thereof and had also further stated that the construction of resort complex will not disturb the dunes in any manner and the dunes will remain undisturbed. … On these mass of materials and those materials having been obtained after the appellant objected to grant of environmental clearance to the hotel project, when the Central Government granted the environmental clearance, we see no infirmity with the said grant of clearance nor are we in a position to hold that the conclusions of the competent authority are based on non-consideration of any relevant and germane materials. ...

Two of the scientists, belonging to the National Institute of Oceanography who were the authors of the report namely Dr. Antonio Mascaren has and Dr. Kalidas Sawkar were Members of the Goa State Committee for Coastal Environment and they were signatories to the approved plan in the meeting held on 15th of March, 1996 and they never objected to the aforesaid approved plan, though now, they indicate the permission granted for the hotel would have the effect of demolishing the sand dunes. That apart, though the writ petition is in the nature of Public Interest Litigation at the instance of the Goa Foundation, but the said Goa Foundation had vehemently objected before the Department of Environment and Forest, which cleared the hotel project in question and, therefore, it must be assumed that all necessary materials in their possession had been produced before the Government of India. The present report of National Institute of Oceanography, if read with the letter of the Goa Foundation dated 20th of April, 1999, unequivocally indicates that the Goa Foundation had obtained this report just to nullify the environmental clearance, granted by the Department of Environment and Forest. On the basis of such reports, we are unable to accept the alternative prayer … that the matter should be remitted back to the Department of Environment and Forest for reconsideration of their approval granted earlier. In our considered opinion, this subsequent report obtained by the appellant cannot be considered for coming to a conclusion that the conclusion of the environmental authorities and the consequential clearance of the project is either based on non-consideration of the relevant materials or ignoring any vital material, requiring reconsideration, more so, when the structural

construction of the hotel project is nearing completion. In our considered opinion, the appellant has utterly failed to establish by referring to any authentic materia that there has been an infraction of any provisions of the CRZ Notification or the approved Management Plan of Goa nor is there any illegality in the order of the Government of India, granting environmental clearance as well as the order of the State Authorities in sanctioning the project on the basis of such environmental clearance.

Nepal -- LEADERS v. Godavari Marble Industries Private Ltd. and othersNKP 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 publicinterest. 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.

Pakistan -- Zia v. WAPDAP 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.

Pakistan – W. Pakistan Salt Miners Labour Union (CBA) Khwra, Khelum v.The Director, Industries and Mineral Development

1994 SC MR 2061Decided 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. …

Sri Lanka -- Jayawardena v. Akmeemana Pradeshiya SabhaS.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. Illinois146 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 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. Morton405 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 long-established 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 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.

A PLEA FOR HELP

June 25, 2003

XYZAdvocate, 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!

Sincerely,

….

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 (80-280 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 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.

A PLEA FOR HELP

June 25, 2003

XYZAttorney-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?

Sincerely,

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Selected paragraphs of the Mineral Investment Agreement

Mineral Investment Agreement

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

A. The mineral resources contained in this Nation constitute a part of national wealth.B. 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.

C. 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.

D. 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.

E. 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.

F. 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.

G. 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 IIRIGHTS 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 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 cooperationwith 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 .

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 VIIFEASIBILITY 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 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 XVIIENABLING 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.

(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.

Selected paragraphs of Letter from the President of the National Academy of Sciences to the President

The Government’s Proposed Potash Projectand the Comments of the National Academy of Sciences

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

a. Size of deposit: proven reserve 25 million metric tons, inferred reserve 35 million metric tons.

b. 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 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

a. 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)

b. Direct monetary benefits to the Nation:

(1) 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.

(2) Dividend on 10% free equity over 30-year period, US $70 million.

Total direct benefits = US $ 107 million

b. Indirect monetary benefits:

(1) 5% tax on first 12 years and 15% tax thereafter, US $ 74 million

(2) defense levy US $1.3 million

(3) Ports Authority earnings US $ 137 million.

(4) Gross foreign exchange revenue from all exports of potash US $ 152 million,

(5) 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

c. Social and infra-structural development benefits

(1) 1,000 people employed

(2) local farmers will get potash at 5% below f o b value

(3) 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 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.

Selected paragraphs of Newspaper article “Exploitation of the Potashpura Potash Deposit”

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 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.

A PLEA FOR HELP

June 25, 2003

XYZAttorney-at-Law Coastal Zone Protection Law Foundation:

Dear Sir or Madam:

I am writing to you as General Secretary of a local environmental non-governmental organization Revere Residents United for Protection of our Coast (RRUPC). I am old and infirm now, no longer able to leave my house, but in my youth I spent my free hours wandering through the tidal flats and banks of the Saugus River estuary in the State of Nahant, marveling at its natural beauty and rich marine life. RRUPC is dedicated to the protection of the Saugus River Estuary and its surrounding coastal stretches in the City of Revere, so that our children and grandchildren may enjoy these treasures as our members did in our youth.

In regard to this purpose, RRUPC is greatly agitated by the actions of a private company that has nearly completed construction of hotel buildings on the banks of the Saugus River near where it empties to the sea. Admittedly, the location of the buildings is in a built-up area, but these new buildings encroach so close to the water, far closer than any existing structures! Moreover, these new buildings are destabilizing sand dunes and tide pools that provide habitat to many unique species of marine life.

Shockingly, the Nahant Coastal Zone Management Committee granted permission to the developers on the basis that the buildings comply with the Nahant Coastal Zone Management Plan. We believe the developers are in cahoots with certain members of the Authority who are pulling the wool over everyone’s eyes by claiming that there is a road between the Saugus River and the hotel buildings. I know that area as well as the back of my hand!! There was never a road there, but perhaps an occasionally-used footpath that landowners and collectors of shells would use to reach the tide pools.

We have made numerous formal protests to the District Collector, the newly-constituted Nahant Coastal Zone Management Authority, the Municipality of Revere, but our protests have fallen on deaf ears. We have notice that the hotel will open its doors to tourists in a matter of moneths. If that happens, we fear we will never be able to drive them out. You are our last hope!! Can you help us?

Sincerely,

….