Environmental Law –--- Pre – University Exam

SECTION – A (4 Marks)
Q1. Define Environment.
Ans. Literally, the expression “environment” connotes surroundings. The environment contains air, water, food
and sunlight etc. Environment affects all the living creatures including the plants and trees. A number of
necessities of life are fulfilled rather derived from the environment. Thus, it can be said that the environment is
the life support system.
According to Section 2(a) of the Indian Environment (Protection) Act, 1986 the term “Environment” includes
water, air and land and human beings, other living creatures, plants, micro-organisms and property.
However, under Section 1(2) of the Environment Protection Act, 1990 of the United Kingdom, the term
“environment” consists of all, or any of the following media, namely, air, water and land and the medium of air
includes the air within the buildings and the air within other natural or man-made structures above or below
ground.
OBJECTIVES OF ENVIRONMENT PROTECTION
The main objectives of the Environment Protection are as follows:
1. Controlled, restricted and mindful use and exploitation of natural resources;
2. Maintenance and protection of environmental quality;
3. Protection and balancing of the eco-system;
4. Achievement of substantial development;
5. Environment awareness among the people;
6. Working out the pollution problems;
7. Environment education and training; and
8. Punishment of the polluter.
COMPONENTS OF ENVIRONMENT
“Environment” consists of three kinds of components, namely:
(1) Non-living component or abiotic component
(2) Living component or biotic component
(3) Energy component
Non-living or abiotic component
Under this category non-living things like soil, air and water fall, though in different forms. However, non-
living component in turn is divided in three categories, namely:
(a) Lithosphere (rocks, soil and solid air)
(b) Hydrosphere (water component)
(c) Atmosphere (gaseous envelope) which, in turn is divided into four zones, namely:
1. Troposphere
2. Stratosphere
3. Ionosphere; and
4. Exosphere
Living component or biotic component
This component consists of flora and fauna including man.
Energy Component
This component include solar energy, geo-chemical energy, thermo-chemical energy, hydro-electrical energy,
nuclear atomic energy, energy due to radiation etc., that helps maintaining the real life of organisms.
TYPES OF ENVIRONMENT
Broadly, environment can be divided into the following two types, namely:
(1) Natural Environment
(2) Man-made Environment
Natural Environment
Under this type of environment any change in the system caused due to natural processing is counter balanced
by the change in the other components of the environment. This type of environment is called homeostatic
environment mechanism.
Man-made Environment
This type of environment is created by men such as industrial revolution, communication networks like
telephone, telex, fax, agricultural apparatus, satellite and energy sources like thermal and hydro energy and
atomic energy, etc.
Q2. What do you mean by Acid Rain?
Ans. The term “acid rain” was first used by Robert A. Smith in 1872. The term acid rain is used to describe all
precipitation and/or deposition, which is more acidic than normal. It results when gaseous emissions of
particularly SOx and NOx interact with water vapour and sunlight, and are chemically converted to strong
acidic compounds such as sulphuric, sulphurous, nitric and nitrous acids. When these compounds (acid gases
or their precursors or acid particles) along with other organic and inorganic chemicals are deposited on the
earth as aerosols and particulate, the deposition is called as Dry Deposition; and when these are carried to the
earth’s surface by precipitation (raindrops, snow, fog or dew), the deposition is called as Wet Deposition.
Generally, clean rain is slightly acidic as it dissolves varying amounts of naturally occurring carbon dioxide
from the atmosphere. The lowest pH level which can be produced by carbonic acid (or CO ₂) is 5.6. Therefore,
the precipitation or rain is said to be clean rain up to a pH of 5.6, which is the natural background pH of rain
water.
CO₂ + H₂O —› H₂ CO₃
Hence, acid rain, on precipitation, is defined as the one which has a pH less than 5.6.
Both acid particles and gases can be incorporated into cloud droplets. Particles are incorporated into droplets
by nucleation, impaction, Brownian movement, diffusiophoresis (transport into the droplet induced by the flux
of water vapour to the same surface), and electrostatic transport. Advectic and diffusive attachment dominate
all other mechanisms for pollutant gas uptake by cloud droplets. Most of the H₂SO₄ in precipitation is due to
the diffusion of SO₂ into the cloud droplets, where it is oxidized to H₂SO₄ by one of the several mechanisms;
while most of the NHO₃ in precipitation is due to the diffusion of HNO₃ (g) into the droplets.
Q3. Explain the provision under section 133 of Cr. P.C. in relation to environmental protection.
Ans. The Code of Criminal Procedure, 1973 (Section 133 to Section 143) deals with the subject concerning
environment protection. Since, the Code of Criminal Procedure is not a substantive law but it deals with the
procedural aspect, thus, it does not provide definition and meaning of the term public nuisance or private
nuisance.
The Code of Criminal Procedure, 1973 does not deal with the cases of private nuisance. Such cases are to be
referred to civil court for adjudication or order. However, Section 133 of the Code of Criminal Procedure,
1973 deals with cases of public nuisance, wherein the Magistrate is empowered to pass conditional order for
removal of public nuisance. Section 133 of the Code reads as under:
“133. Conditional order for removal of nuisance:
(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate
specially empowered in this behalf by the State Government, on receiving the report of a police officer
or other information and on taking such evidence (if any) as he thinks fit, considers:
(a) That any unlawful obstruction or nuisance should be removed from any public place or from any way,
river or channel which is or may be lawfully used by the public; or
(b) That the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to
the health or physical comfort of the community, and that in consequence such trade or occupation
should be prohibited or regulated or such goods or merchandise should be removed or the keeping
thereof regulated; or
(c) That the construction of any building, or the disposal of any substance, as is likely to occasion
conflagration or explosion, should be prevented or stopped; or
(d) That any building, tent or structure, or any 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 pass by, and that is
consequence of the removal, repair or support of such building, tent or structure or the or support of
such tree, is necessary; or
(e) That any tank, well or excavation adjacent to any such way or public place should be fenced in such
manner as to prevent danger arising to the public; or
(f) That any dangerous animal should be destroyed, confined or otherwise disposed of.
Such Magistrate may make a conditional order requiring the person causing obstruction or nuisance, or
carrying on such trade or occupation or keeping any such goods or merchandise, or owning, possessing or
controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such
animal or tree; within a time to be fixed in the order:
(i) To remove such obstruction or nuisance; or
(ii) To desist from carrying on or to remove or regulate in such manner as may be directed, such trade
or occupation or to remove such goods or merchandise or to regulate the keeping thereof inn such
manner as may be directed; or
(iii) To prevent or stop the construction of such building or to alter the disposal of such substance; or
(iv) To remove, repair or support such building, tent or structure or to remove or support such trees; or
(v) To fence such tank, well excavation; or
(vi) To destroy, confine or dispose of such dangerous animal in the manner provided in the said order:
Or if he objects so to do, to appear before himself or some other Executive Magistrate subordinate
to him at a time and place to be fixed by the order and show cause, in the manner hereinafter
provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any civil court.
It is also relevant to mention that Section 133 of the Code deals with the cases of public nuisance, and not
private nuisance as this is the subject matter of the civil court.
WHEN SECTION 133 CAN BE INVOKED:
It is well settled legal position that the proceedings under Section 133 of the Code should be taken in case of
emergency where the public shall be put to great inconvenience and shall suffer an irreparable injury if the
encroachment or nuisance is not removed at once by adopting the summary procedure. Ordinarily, Section 133
of the code cannot be invoked where the obstruction or nuisance has been in existence for a long period but
there is no legal bar to action being taken in such circumstances if there exists genuine emergency to get
encroachment or nuisance removed under Section 133 of the Code. On this point, the Allahabad High Court in
Asharfi Lal vs. State, expressed the view that if the obstruction has been in existence for a long period without
any change in circumstances, the removal of such obstruction cannot be said to be urgent and the remedy must
be sought in civil courts.
MAGISTRATE IS REQUIRED TO EXAMINE LOCAL PEOPLE:
In the interest of justice and fair play it is required that while exercising power under Section 133 of the Code,
the Magistrate should examine the local people about physical discomfort or health hazard on account of
‘Khatal’. However, failure on the part of Magistrate to carry out such endeavour would make his rder illegal
under Section 133 of the Code.
SCOPE OF SECTION 133:
The Apex Court had an occasion to consider the scope and applicability of section 133 of the Code of Criminal
Procedure, 1973 in case of Municipal Council, Ratlam v. Vardhichand & Others, according to the court, where
there existed a public nuisance in a locality due to open drain, heaps of dirt, pits and public excretions by
human for want of lavatories and consequential breeding of mosquitoes, the court may require the municipality
under Section 133 of the Code and in view of Section 123 of the Municipalities Act to abate the nuisance by
taking affirmative action on a time bound basis. When such an order was given, the Municipality cannot take
the plea that financial inability validly exonerate it from statutory liability. The Apex Court further held that the
Code of Criminal Procedure operates against statutory bodies and others regardless of the cash in their
coffers, even as human rights under Part III of the Constitution of India, 1950 have to be respected by the State
regardless of budgetary provision.
SECTION 133 WOULD APPLY, WHEN NUISANCE IS IN EXISTENCE:
In Kachrulal Bhagirath Agrawal & others v. State of Maharashtra, where the order passed by S.D.M. holding
that the appellant is guilty of public nuisance and said was confirmed by the High Court on appeal. The
Supreme Court has held that nuisance is an inconvenience which materially interferes with the ordinary
physical comfort of human existence. The object and purpose behind Section 133 of Cr. P.C. is to prevent
public nuisance and involves a sense of urgency if the Magistrate fails to make recourse immediately
irreparable harm would be done to the public. It applies to a condition of the nuisance at the time when the
order is passed and it is not intended to apply to future likelihood or what may happen at some later point of
time. The Court clarified that Section 133 of Cr. P.C. does not deal with all potential nuisance but only applies
when the nuisance is in existence. The judgement of High Court does not suffer from any infirmity.
Q4. Environmental Laboratories.
Ans. An environmental laboratory is responsible for dealing with contaminants that affect the environment,
humans and wildlife. Such laboratories consist of advanced technology and experienced researchers. These
researchers at an environmental laboratory produce analytical data on biological, ecological and physical
sciences by performing insightful tests on various elements such as analysis of water, soil, air, waste
characterization, contaminants, energetics, explosives and other aspects. However, to provide such services
one must have qualified experts who are great at the development of protocols, sampling and analysis.
POWER TO ESTABLISH ENVIRONMENTAL LABORATORIES
Section 12 empowers the Central Government to establish environmental laboratories and provides in this
connection as under:
(1) The central government may by notification in the official gazette:
(a) Establish one or more environmental laboratories;
(b) Recognize one or more laboratories or institutes as environmental laboratories to carry out the
functions entrusted to an environmental laboratory under this Act.
(2) The central government may, by notification in the official gazette, make rules specifying:
(a) The functions of the environmental laboratory;
(b) The procedure for the submission to the said laboratory of samples of air, water, soil or other
substance for analysis or tests, the form of the laboratory report thereon and the fees payable for
such report;
(c) Such other matters as may be necessary or expedient, necessary to enable that laboratory to carry
out its functions.
Q5. Hazardous Substance.
Ans. HAZARDOUS SUBSTANCE [Section 2(e)]
Hazardous substance means any substance or preparation which, by reason of its chemical or physio-chemical
properties or handling, is liable to cause harm to human beings, other living creatures, plants, micro-organism,
property or the environment.
HANDLING OF HAZARDOUS SUBSTANCES [Section 8]
Person shall handle any hazardous substance only in accordance with prescribed procedure and after
complying with prescribed safeguards.
Q6. What duty regarding environment is cast on the state under Article-48A of Indian Constitution?
Ans. In the year 1976, the constitution was amended. With this amendment, Article-48A was inserted in the
constitution with the aim to afford better provisions so as to preserve and protect the environment. The
provisions of this article imposes the duty on the state to protect and improve the environment and safeguard
the forests and wildlife of the country. The word “environment” has been interpreted widely in this article. The
state shall not only play a role of being protectionists but also enact adequate measures for improvement of the
environment.
Every natural resource is interconnected with other natural resources of this country. Forests are directly
linked with providing pollution-free air, helps in reducing global warming and is also connected with water
resources. They help in maintaining the ecological balance. Thus, this resource is crucial and hence, its
protection is equally important to avoid atmospheric pollution. Hence, the specific insertion of this section is
justified.
Article 48A lays down the directive principle for protection and improvement of environment and safeguarding
of forests and wildlife. It reads as:
“The state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of
the country.”
This Article was added by the 42 nd amendment, 1976 and places an obligation on the State to protect the
environment and wildlife. While not judicially enforceable, Article 48A may become enforceable under the
ambit of the right to life under Article 21.
In M.C. Mehta v. Union of India (2002), the Supreme Court heard a public interest litigation in the matter if air
pollution in Delhi. The court made the following observations regarding Article 48A and public health:
“Article 39, 47 and 48A by themselves and collectively cast a duty on the State to secure the health of the
people, improve public health and protect and improve the environment.
In Sachidanand Pandey & Ors. v. The State of West Bengal & Ors. (1987), the Supreme Court held that Article
48A must be kept in mind whenever a matter regarding maintenance of the ecology is brought before the court.
Q7. What are the conditions on use of certain industrial plants in air pollution control area under Section 21(5)
of the Air (Prevention and Control of Pollution) Act, 1981?
Ans. Section 21 deals with restriction on use of certain industrial plants. Accordingly, no person shall, without
the previous consent of the State Board establish or operate any industrial plant in any air pollution control
area.
Prior Amendment Act, 1987 this section required only industries specified in the Schedule to the Act to obtain
such consent. However, the amended section, with effect from 1st April, 1988 requires every industrial plant in
an air pollution control area to obtain prior consent.
Application for consent of the State Board should be made in the prescribed form alongside with prescribed fee.
The rules framed by the respective State Governments specify the procedure for making such applications.
Where any person operates in any such air pollution control area, from a date prior to the date of declaration
of the area as an air pollution control area, such person shall also make the application in the prescribed
manner within 3 months of the declaration of that area to be an air pollution control area. In that case, he shall
be deemed to be operating such industrial plants with the consent of the State Board the consent applied has
been refused. In respect of applications received under this section, the State Government may make such
enquiry as per the policy prescribed as it may deem fit. However, before cancelling a consent or refusing a
further consent a reasonable opportunity of being heard should be afforded to the concerned person.
CONDITIONS
Every person to whom consent has been granted by the State Board shall comply with the following conditions,
namely:
1. The control equipment of such specifications as the State Board may approve in this behalf shall be
installed and operated in the premises where the industry is carried on or proposed to be carried on;
2. The existing control equipment, if any, shall be altered or replaced in accordance with the directions of
the State Board;
3. The control equipment referred to in clause (1) or clause (ii) shall be kept at all times in good running
condition;
4. Chimney, wherever necessary, of such specifications as the State Board may approve in this behalf shall
be erected or re-erected in such premises;
5. Such other conditions as the State Board may specify in this behalf; and
6. The conditions referred to in clauses (i), (ii) and (iv) shall be complied with within such period as the
State Board may specify in this behalf;
Provided that in the case of a person operating any industrial plant in an air pollution control area
immediately before the date of declaration of such area as an air pollution control area, the period so specified
shall not be less than six months:
Provided further that:
(a) After the installation of any control equipment in accordance with the specifications under clause (i), or
(b) After the alteration or replacement of any control equipment in accordance with the directions of the
State Board under clause (ii) or
(c) After the erection or re-erection of any chimney under clause (iv).
no control equipment or chimney shall be altered or replaced or, as the case may be, erected or re-
erected except with the previous approval of the State Board.