PETITIONER
1. WHETHER WP OF NGO MAINTAINABLE?
RULE OF ALTERNATE REMEDY
The power under Article 226 of the Constitution to issue writs can be
exercised not only for the enforcement of fundamental rights, but for any
other purpose as well;…
SECTION 6 - SOCIETIES REGISTRATION ACT - Society as legal entity
Under Section 6 of the Societies Registration Act, 1860 (hereinafter
referred to as the SRA), every society can sue or be sued in its name and
the provisions of the SRA make the society a legal entity by itself. It has
separate legal existence in the eyes of law and can act in its own name
and in the manner prescribed by the SRA.
UNREGISTERED ASSOCIATIONS- ( petitioner is a registered association and can file
WP)
the principle of law is that unregistered associations have no
fundamental right to approach the High Court under Article 226 of the
COI.[5]
In the matter of: Porathissery Panchayat Tax Payees
Association V/s Executive Officer & Ors[6], while stating that an
unregistered association cannot maintain a writ petition under Article
226 of the COI, the Hon’ble Court observed that:
“… When a number of individuals are affected by an official act, they can
ordinarily bring a legal proceeding to challenge that only if all such
persons join in the proceedings by name, except where the law confers
upon them, a legal personality as a collective body such as an
association which is incorporated by statute or formed under a statute.”
Similarly, in the matter of: Meghalaya Wine Dealers Association &
Ors V/s State of Meghalaya & Ors[7], the High Court of Gauhati
observed that because Meghalaya Wine Dealers Association was an
unregistered association (not registered under the Meghalaya Societies
Registration Act, 1983), thus, it cannot prefer writ petition under Article
226 of the COI.
Article 226 of the Constitution of India by the petitioner which is said to be an NGO
being a trust registered under the Indian Trust Association, and therefore, petitioner
NGO is not a juristic person. It is well settled law that writ petition filed by the
unregistered association is not maintainable.
Lafarge Umiam Mining Private Limited v. Union of India5:-
the Court should review the decision-making process to ensure that the decision of MoEF is fair
and fully informed, based on the correct principles, and free from any bias or restraint. Once
this is ensured, then the doctrine of “margin of appreciation” in favour of the decision-maker
would come into play.”
Alembic Pharmaceuticals Ltd.(supra), this Court observed:-
“27. The concept of an ex post facto EC is in derogation of the fundamental principles of
environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994.
It is, as the judgment in Common Cause holds, detrimental to the environment and could lead
to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is
alien to environmental jurisprudence is that before the issuance of an EC, the statutory
notification warrants a careful application of mind, besides a study into the likely consequences
of a proposed activity on the environment. An EC can be issued only after various stages of the
decision- making process have been completed. Requirements such as conducting a public
hearing, screening, scoping and appraisal are components of the decision-making process
which ensure that the likely impacts of the industrial activity or the expansion of an existing
industrial activity are considered in the decision-making calculus. Allowing for an ex post facto
clearance would essentially condone the operation of industrial activities without the grant of an
EC. In the absence of an EC, there would be no conditions that would safeguard the
environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have
been caused to the environment. In either view of the matter, environment law cannot
countenance the notion of an ex post facto clearance. This would be contrary to both the
precautionary principle as well as the need for sustainable development.”
he question in this case is, whether a unit contributing to the economy of the country and
providing livelihood to hundreds of people, which has been set up pursuant to requisite
approvals from the concerned statutory authorities, and has applied for ex post facto EC,
should be closed down for the technical irregularity of want of prior environmental clearance,
pending the issuance of EC, even though it may not cause pollution and/or may be found to
comply with the required norms. The answer to the aforesaid question has to be in the negative,
more so when the HSPCB was itself under the misconception that no environment clearance
was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly
stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and
Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the
concerned authorities on the misconception that no EC was required.
ISSUE 3
“whether the “freedom of trade” of STPL is violated if the operations of the
factory is stopped?”
PROVISIONS
Article 19 (1) (g)
of the Indian constitution confers fundamental right on every citizen to practice any
profession or to carry on any occupation, trade or business. This is subject to reasonable
restrictions.
A citizen cannot carry on business activity, if it is health hazards to the society or general
public. Thus safeguards for environment protection are inherent in this.
Cooverjee B. Bharucha Vs Excise commissioner, Ajmer (1954, SC 220)
The Supreme Court, while deciding the matter relating to carrying on trade of liquor in
Cooverjee B. Bharucha Vs Excise commissioner, Ajmer (1954, SC 220) observed that, if
there is clash between environmental protection and right to freedom of trade and
occupation, the courts have to balance environmental interests with the fundamental rights
to carry on any occupations.
Article 21
The right to live in a healthy environment as part of Article 21 of the Constitution was first
recognized in the case of
Rural Litigation and Entitlement Kendra vs. State, AIR 1988 SC 2187
(Popularly known as Dehradun Quarrying Case). It is the first case of this kind in India,
involving issues relating to environment and ecological balance in which Supreme Court
directed to stop the excavation (illegal mining) under the Environment (Protection) Act,
1986
M. C. Mehta vs. Union of India, AIR 1987 SC 1086
the Supreme Court treated the right to live in pollution free environment as a part of
fundamental right to life under Article 21 of the Constitution.
Article 51-A (g),
says that “It shall be duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wild life and to have compassion for
living creatures.”
Vellore Citizens Welfare Forum v. Union of India (1996): In this landmark case, the
Supreme Court of India recognized that industries have an obligation to
compensate for the environmental degradation caused by their activities. The court
held that the right to trade and operate factories is subject to reasonable restrictions
to protect the environment and public health.
MC Mehta v. Union of India (1987): This case is popularly known as the "Oleum
Gas Leak Case." The Supreme Court issued several orders to prevent pollution
caused by factories, particularly those involving hazardous substances. The court
ruled that the right to trade cannot take precedence over the right to a clean and
healthy environment.
Indian Council for Enviro-Legal Action v. Union of India (1996): In this case, the
Supreme Court addressed the issue of pollution caused by tanneries in the state of
Tamil Nadu. The court held that the right to trade and operate factories cannot be
exercised at the expense of public health and environmental protection. The
tanneries were ordered to implement pollution control measures and bear the costs
of remediation.
M.C. Mehta v. Union of India (1988): This case, commonly referred to as the "Taj
Trapezium Case," focused on pollution affecting the Taj Mahal due to industrial
activities in the vicinity. The Supreme Court imposed restrictions on industries
operating within the Taj Trapezium Zone to protect the monument. The court
recognized the importance of balancing economic activities with environmental
conservation.
T. N. Godavarman Thirumulpad v. Union of India (2006): *In* this case, the
Supreme Court issued a series of orders to regulate timber and other forest-based
industries to protect forests and wildlife. The court emphasized that the right to
trade should not infringe upon the preservation of natural resources and
biodiversity.
STANDARD OPERATING PROCEDURE (SOP)
Provided for Violation of EIA notification 2006 - non compliance of environmental
clearance-
Dastak NGO Vs. Synochem organics pvt ltd
For the past violations the concerned authorities are free to take appropriate action
in accordance with Polluter Pays principle following due process
