Supreme Court, Full Bench
Hon`ble Trilok Pratap Rana
Hon`ble Laxman Prasad Aryal
Hon`ble -Gobinda Bahadur Shrestha
Order Writ No. 35 of the year 2049 B.S (1992)
Petitioner: Suray Prasad Sharma Dhungel
Versus Respondents: Godawari Marble Industries and others
Constitutional / Legal Issues
Whether the Constitution guarantees the right to clean: environment as the part of right to life?
Whether there is locus standi of the NGOs or individuals working for the protection of the environment?
Whether the Court can issue an order against Parliament to enact law?
The Court held: The Court concluded that the clean and healthy environment is part of the right to life under the Article 12 (1) of the Constitution of the Kingdom of Nepal 1990. In this case locus standi of NGOs or individuals working for the protection of the environment has been enunciated very clearly. The Supreme Court directives in the name of respondents to enact necessary for protection of air, water, sound and environment and to action for protection of the environment of Godawari area.
Facts and order in detail
As per the judgment dated 049-5-8 (Aug. 24, 1992) of the Division Bench of this Court, the facts of this writ petition presented before this Bench, pursuant to Rule 3 (a) of the Supreme Court Rules, 2049 (1991) are as follows:
Legal and Environmental Analysis for Development and Research Services (Pvt.) Ltd. which is called as LEADERS Inc., is an institution, registered under the Companies Act 2021, with the objective of conducting research, study, analysis in the area of environment and law as well as promoting environment conservation. This institute, in accordance with its objectives, has been conducting the business of research, analysis study and also on the subjects of environmental condition, environmental pollution, degradation of environment and negative effect of the same, root causes for the degradation of environment, necessary measures and attempts for protections of life, property, prosperity, peace and healthy life of the general people by maintaining healthy and clean environment etc., including within the environmental and legal mattes of the various sectors of Nepal.
It has been found that the respondents activities have caused and have been causing, in violation of the Constitution and law, a very serious environmental degradation to Godawari forest and its surroundings which is rich in natural grandeur and historical and religious enshrinement with the area of 15 sq. miles occupying within Godawari Adarsha Village Panchayat situated North West to Phulchowki Hill of South East Lalitpur District lying within Kathmandu valley. Since such deeds of the respondents have hindered to conserve appropriate natural heritage and protect from the danger, to be caused on the property, life and health of the people and since respondents have also prohibited to study and research to this (Pvt.) Ltd. on the said area and they have infringed the rights of the petitioner, this writ petition is hereby submitted for protection of public interest and enforcement of the rights of the applicant. Since the aforesaid deeds of the respondents are against the responsibility entrusted by the Articles 9 (b), (c) and (d) of the Constitution and they have not fulfilled the constitutional responsibilities and undermined the constitutional rights guaranteed under Articles 2, Article 10, Article 11 (1) (2) and Article 15 of the Constitution, the petitioner has submitted this writ petition under Section 10 of Court Proceedings of the Country Code, Section 5 of the Forest Conservation (special provision) Act 2024 and in accordance with principles propagated by the Supreme Court. The following unconstitutional and illegal activities of the respondent Godawari Marble Industries have caused a huge public loss. Good environment is one of the prerequisites for a personal life. But the dust, minerals, smoke and sands emitted by the said factory have excessively polluted the springs water and nearby water bodies, land and atmosphere of the said area, thus continuously deteriorating the health, life, education and profession of the research experts of the petitioner institute, the students of St. Xaviers school, the laborers working in the industry and their family members and ultimately the local inhabitants. While blasting dynamites, crushing stones and transporting boulders and marble, even the minimum security measures have not been adopted or granted neither by the industry nor the government. No measure has been adopted to halt the negative impact and loss on the environment. The respondent industry has no constitutional and legal right to endanger others` life. The local Panchayat including all the respondents are equally responsible for keeping quiet and not implementing any legal measure to thwart this type of unauthorized activity of the industry. As the 11th and 12th Village Assembly of the Local Village Assembly had requested the Department of National Parks and Wildlife Conservation, Department of Forest and the Royal Palace to declare the Godawari area a National Park and to halt the deforestation and environment pollution thus created by the said industry. Since the villagers` committee has appealed to the Prime Minister and the Forest Minister to this end, it has been proved that the respondents have shown no interest and alertness to ensure public welfare and security of life and to halt the environmental degradation. From the above-mentioned facts, it is clear that the subject is of public interest and concern.
Henceforth the petition has been filed seeking mandamus or any appropriate order in the name of the respondents, to enforce the right of the people to live in healthy environment, security of life and property and live a peaceful life.
An order has issued by the single bench of this Supreme Court for a show cause notice to the respondents and to present the affidavit of the same before the bench.
The written statement submitted by Mr. Mukti Prasad Kafle, the Secretary of the Ministry of Works and Transport Contended that the Ministry is not engaged in any sort of works and proceedings which caused any negative effect and distraction to the nature and natural flora and fauna as well as the Ministry has not thwarted the legitimate rights of concerned people as provided by the Constitution. Since the Ministry has not caused distraction of the nature and thwarted the rights of the people, the petition filed in the respected Court by making respondent to this Ministry is baseless and ill-motivated. In that view of the matter I request the respected Court to dismiss the petition.
The written statement submitted by Mr. Ashok Kumar Todi, the chairman of the Board of Directors, an authorised person on behalf of the Godawari Marble Industry contended that while studying the writ petition, it is found clear that this petition is filed with illmotive and vested interest to cause negative impact on the goodwill of this company gained in the industrial arena within prevailing Law and Regulations. This company has obtained the license on 2034/7/24 (Nov. 9, 1977) from the HMG Department of Industry, for expansion and modernisation of the marble industry. The question of the legality of its activity does not arise since it has been conducting its works under the norms of the existing rules and regulations after obtaining the incorporation certificate and certificate of mining from the Department of Mines. Since the applicant has lodged this petition on the ground of public interest in accordance with extra ordinary jurisdiction without obtaining permission from HMG or the Court thus violating the Legal Provision of section 10 of Court Proceedings of the Country Code and therefore, there is no such situation on which there can be taken any action on this petition. As the company enjoys no special facility from HMG Nepal and has obtained the facilities similar to that given to other companies, and it has been provided license to operate mining to the other person, the allegation that other persons have been deprived of the business and profession related to the natural resources is completely misleading and is without any grounds. Hence, Thereby request the respected Court to dismiss the petition.
The written statement submitted by Mr. Birendra Nath Khujeli, Secretary of the Ministry of Forest and Soil Conservation has contended that is has not permitted for encroachment outside the area except the license obtained from the Department of Mines and Geology. Since, this Ministry has been keeping vigilance on the same and have been conserving the area, the applicant couldn`t produce any evidence indicating that this Ministry has not conserved the area. This writ petition is not true which is filed against the license issued in accordance with law by the Department of Mines and Geology of HMG and making respondent to the Ministry of Forest and Soil Conservation, His Majesty`s Government. Therefore, I request the respected Court to dismiss the writ petition.
The written statement submitted by Mr. Yogendra Nath Ojha, Acting Secretary of the Home Ministry states that since the write petition filed by the petitioner Mr. Surya Prasad Sharma Dhungel has nowhere mentioned the order of this Ministry that could endanger the public interest and since this Ministry has issued no such order and also the petitioner hasn’t been able to produce any evidence of the misdeed of this Ministry to this end, I duly request the respected Court to dismiss the writ petition filed against this Ministry.
The written statement submitted by Mr. Ananda Bilash Upadhyaya, Deputy Director General of the Royal Botanical Garden, Godawari, Lalitpur states that it has not been permitted for illegal land acquisition in the outside area except as obtained license from Department of Mines and Geology. This Garden has been keeping vigilance on the same and conserving the area. Since, this garden is committed to conserve and preserve its natural resources, the petitioner hasn`t been able to produce any evidence in support of its allegation that this Botanical Garden has failed to carry out its responsibility. Moreover, the writ petition filed against this Botanical Garden and Ministry of Forest and Soil Conservation in relation to the license duely issued by the Department of Mines and Geology of His Majesty`s Government is itself contradictory and thus appears void. I therefore, hereby duly request the respected Court to dismiss the writ petition.
The written statement submitted by Mr. Lok Bahadur Shrestha, Chief Secretary of the Cabinet Secretariat states that the applicant, in his writ petition, hasn`t been able to produce any evidence as to which decision of the Cabinet Secretariat on what grounds has violated the petitioner`s rights. On top of that, the Cabinet hasn`t taken any decision so far to undermine the public interest Hence, I duly request the respected Court to dismiss the writ petition filed without having any base against this Secretariat.
The written statement submitted by Mr. Sushil Bhattarai, Acting Director General of the Department of Soil and Watershed Conservation has contended that it is the responsibility of each and everybody to preserve and conserve the greenery and natural flora and Fauna in Godawari, Phulchowki area and this Department is committed to protect the environment in overall, including that of Godawari, Phulchowki and its surrounding. Hence I duly request the respected Court not to issue order as asked by the petitioner against this Department.
The written statement submitted by Mr. Bhuwaneshwor Khatri, the Secretary of the Ministry of Industries states that while thoroughly reading out the writ petition the writ petitioner hasn`t been able to provide any evidence as to which decision of this Ministry, on what ground has violated the legitimate rights of the applicant. Moreover the petitioner hasn`t been able to elicit any proceedings of this Ministry as liable to guilty indictment. On top of that, the Ministry has undertaken no decision as to undermine the public interest so far. In view of that matter, I duly request the respected Court to dismiss the writ petition filed against this Ministry.
The written statement submitted by Mr. Santa Bahadur Rai, the Secretary of the Ministry of Housing and Physical Planning states that the license for the establishment of the Godawari Marble Industries wasn`t issued by this Ministry as this Ministry was created after the establishment of the said industry. Hence I duly request the respected Court to dismiss the writ petition filed against this Ministry.
The written statement submitted by Mr. Purushottam Silwal, The Chairman of Godawari Village Panchayat, Lalitpur states that Marble Factory has contributed to local development which has created more employment opportunities to the local people. Local people have not faced any inconvenience and insecurity because of the factory. Due to the very fact this Village Panchayat on its decision dated 2045/5/18 B.S. (Sept 3, 1989) had replied the letter sent on 2045/4/32 B.S. (Aug. 16, 1988) by the Lalitpur District Forest Office; Godawari Area, deciding to allow the said industry to continue its operation. This also substantiates that the allegation put forward by the petitioner is insubstantial and baseless. Hence I request the writ petition be dismissed.
The written statement submitted by Mr. Mahendra Narashingh Rana, the Director General of the Department of Mines and Geology states that Section 3 of the Nepal Mines Act, 2023 B.S., stipulates that all the minerals lying under or found in any part of the territory of the Kingdom of Nepal are the assets of HMG. The Mine Act and Rules were promulgated with the objective of timely mobilisation, and development of Minerals which are the property of HMG by managing mines and appropriate management of the minerals. The Godawari Marble Industries which has obtained a license on 2021-1-30 (May 12, 1964) from Department of Industries to operate the industry, this Department on 2021/3/18 B.S. (July 1,1964) has provided a lease of mining marble around the area extending 1760 ft, 4790 ft, 174 ft and 625 ft to the East, West, North and South, respectively, of the bridge situated in Godawari Road in front of the mine lying in Godawari, located at Ward No. 5, Kitni Village Panchayat on the basis of the power entrusted to it by Rule 15 of the Minerals Rules of 2013 B.S. and Section 7 of Nepal Mines Act 2023 B.S. Since the mineral resources is the economic backbone of the country, and the decision undertaken by this department was targeted for the overall national upliftment, I hereby request that the writ order shouldn`t be issued to the respondent on the baseless allegation of environmental pollution.
The written statement submitted by Mr. Shambhu Silwai, on behalf of Lalitpur District Panchayat, Lalitpur states that due to the Marble Industry and other industries operating in this area, the local people have secured job opportunities which has resulted into the local development as well as national economic development. On consideration of this matter, the village Panchayat has also recommended for renewal of the certificate of the Godawari Marble Industry to the respective authority. As the said area has been developed with the help of the industries operating in that area, establishment of governmental and non-governmental offices and religious institutions, is generating the employment opportunity to the local people and are utilizing such facilities, the 13th session of village panchayat meeting also proposed to declare all the forest areas except, the area currently operating industries, government and non-government offices and religious institutions, as the National Park. Thus, I duly request the respected Court to dismiss this writ petition, which is insubstantial and motivated by misleading and false rumors.
As there has been no clear legal provision for the subject matter of environment, it might not be wise enough to imitate some of the principles of foreign countries in our country. It is most important for the concerned authority to undertake appropriate measure in order to safeguard environment. But the mere interest and concern of an organization is still inadequate for the establishment of environmental rights by law. The respondent Godawari Marble Industries seems to be a licensed industry, registered under law by the concerned Department. Hence there is no doubt on the Hon`ble Judge Mr. Gajerdra Keshari Bastola`s decree of rejecting the writ petition and the constitutional obligation of this Court to ensure public interest through the use of its extraordinary jurisdiction are unquestionable.
Thus at the instance of the facts present in the writ petition including those present in the report of Mr. Bhairab Risal`s team; the writ of Mandamus is to be issued calling upon the respondent Ministry and Mining Department to carry out necessary investigations before renewal of the industry for the sake of safeguarding the environment in and around Godawari area. If the environment isn`t maintained despite these measures and the environmental degradation is going to worsen due to the lease given to the respondent industry, the contract has to be cancelled in the view of public welfare. The latter shall be done after providing adequate compensation to the respondent industry as provided for by rule 25 (1) of the Minerals Rules (Amendment and Renewal) 2018 B.S.. If the amendment in the contract is feasible, then the appropriate amendments shall be done to control the environmental degradation. Further, it has been viewed by Hon`ble Justice Kedar Nath Upadhyaya in his dissenting judgement delivered on 2049-5 8(Aug. 24, 1992) that the writ of mandamus should be issued on the respondents Department of Mines and Geology and Ministry of Forest and Soil Conservation stating that all appropriate measures must be taken to maintain environmental balance in Godawari area.
Mr. Prakash Mani Sharma and Mr. Upendra Dev Acharya, the learned Advocates, appearing on behalf of the petitioner have put forward the Article 11 (1) of the Constitution of Nepal, 2019 B.S. which provides that no person shall be deprived of his life and personal liberty save is accordance with law. The works carried out by the respondent Godawari Marble Industries have been disbalanced to the environment. The dust and sand produced during the explosions which is being undertaken in the mining process has polluted the atmosphere and water of the area and caused deforestation. Due to the continuing environmental degradation and pollution created by the said industry, Right to Life of the people has been violated. The absence of appropriate environment caused diminution of human life. There are plenty of examples that various types of animals and birds have disappeared from the earth due to the negative effect on the environment. Human being may also be extinct if there is no conducive environment. Environmental issue is not the related matter of a specific person, it is the matter of all and public as interest. Environmental degradation imparts its untoward effect not only to a limited area but encroaches upon the surroundings and the entire nation. The petitioner LEADERS Inc. does have locus standi, as protection and conservation of the environment is the objective of the petitioner and environmental problems in Godawari area has adverse impact on the petitioner as well. The Supreme Court of India, while delivering its judgment in various environmental cases, has interpreted the constitutional provision that no person shall be deprived of his life except in accordance with law, liberally and established various precedents that where polluted environment is likely to damage life of individuals, any person can file writ petition.
Substantially an environmental issue is a matter of public interest and the term public rights used in the Article 88 (2) of the Constitution of the Kingdom of Nepal, 2047 (1990) B.S. implies to the common right provided by any law or Constitution in any community or people of the Kingdom of Nepal. This fact has been established in the writ petition of Radheshyam Adhikari Vs. Kalyan Bikram Adhikari As the present writ petition represents both the public interest and public right, it cannot be said that the petitioner does not have locus standi. Since the petitioners` locus standi in a case of public interest is very broad, the question of locus standi in the present case can`t be limited. In Ajit Kumar Vs Krishna Narayan Shrestha (writ petition No. 3092) the Supreme Court has formulated the principle that if the public property is not preserved properly, anybody concerned with the public property can approach the Court with the aim of preserving that property. Similarly, the present issue is also a matter of public interest; therefore any concerned person can file a writ petition.
Article 26 (4) under the Directive Principles and policies of the Constitution of the Kingdom of Nepal, 2047 (1990) B.S/ there has been a constitutional provision which states that the State shall give priority to the protection of the environment and prevent its further damage from various physical development activities by creating awareness to the people on cleanly environment Since the Indian Supreme Court in Shree Sachidananda Pandey vs State of West Bengal (AIR 1987 section 1109), has propagated a principle based on the very Directive Principles of the State and as the Directive Principles of our Constitution also comprises of the matter of the environmental cleanliness, the existence of locus standi of the petitioner in the present case can not be ruled out.
So far as the environment is concerned, the frequent explosions during the mining operation of the respondent Marble Industry have created an environmental hazard in that area. Due to the pollution of sound and the overall atmosphere, the rare species of birds and butterflies are disappearing at an alarming rate. There are planty of species of bird and butterflies in the Godawari area which are rare. This is the area which is famous for flora and founa. But flora and founa have been badly affected by the explosions of dynamite. Due to continuing deforestation, the productivity of fertile lands has decreased a lot Huge stones that have been pelted during the frequent explosions have created a panic amongst the local inhabitants and the students of St. Xaviers1 school. There is a Godawari Pond in this Godawari area. Godawari area is one of the religious place and it has cultural, archaeological and biological importance 600 species of butterflies and 259 species of birds in Godawari area. However, the respondent Marble Industry has created an overall deterioration in the natural flora and fauna of that marvellous area. Some taps of the TSfau Dhara1 (Nine taps) are on the verge of drying and the water of Godawari Pond has been affected by the said industry.
Even from the economic point of view, the activity of respondents is against the economic welfare of the nation. It has been caused unbearable loss of the natural flora and fauna and butterflies, decreased fertility of the soils by erosion and polluted the water of river and air of the atmosphere, and it is a gross economic loss which is many times greater than the royalty it pays bade to HMG of Nepal. Neither new technology nor any equipment has been installed to minimize the air, water and sound pollution. There has been no security measure undertaken for the workers of the said industry. Since the respondent industry is a capital intensive rather than labour intensive one, it has not been able to make any contribution in providing employment opportunity. The negative impact caused by the Godawari Marble Industries on the environmental, natural and cultural heritage is much more greater than the royalty Rs. 20,000/- it pays annually to HMG/N. During mining of the marble, 1400 hectares land has been contaminated with soil, sand and lime thus reducing the productivity of said land. Because of the marble and bolder, the water source of the Phulchowki hill has declined a lot and the source of drinking water and irrigation has been drying up. Moreover, the quality of the drinking water has declined due to the mining operation. Different reports about the effects of the respondent industry on the environment of the Godawari area have been published. Review of the environment of Godawari area undertaken during Shrawan 2045 (1988) B.S. by the Environmental Impact Study Project, Thapathali; the report put forward by a research group led by Mr. Bhairab Risal; and the investigation report projected by a research group led by Dr. Narasingh Narayan Singh have been published. Sufficient discussions on the environmental hazards poised by the Marble Industry along with their appropriate solutions can be obtained from those reports. United Nations Conference on Environment Development, Rio de Jenerio, has taken the environmental problem as a serious threat to the mankind and HMG has expressed its commitment in environment conservation by ratifying the Conventions passed in Rio. In this context, conservation of environment has become an important obligation of the government. When an industry, targeted at a specific economic benefit, has more adverse effects than the services; has negative effect on the rare species of birds, insects, flora and fauna and ultimately the whole mankind, it is inappropriate to operate such industry. It may be mentioned herein that the Indian Supreme Court in an environmental case between R.L.E. Kendra, Deharadun Vs State of UP and others had put a halt to the mining operation. Since the respondent industry is the cause of environmental degradation in the aforesaid area, the learned Advocates on behalf of the applicant demanded that the writ of Mandamus be issued for immediate closure of the respondent industry and submitted a written note also.
Mr. Akbar Ali Mikrani, the Learned Government Advocate clarified on behalf of the respondents including Ministry of Forest and Soil Conservation and others that HMG, itself is well aware to keep environmental balance in Godawari area. The writ of Mandamus is issued if HMG has not undertaken any of its responsibilities but the HMG, in the context of Godawari Marble Industry, has issued various directives to safeguard the environment of Godawari area and those directives have been implemented. In case there has been environmental pollution due to the Godawari Marble Industry, the measures to safeguard environment should be implemented rather than closing the industry. If the latter be proceeded, the country will be industry-less in the future.
The petitioner is an organization registered under the Companies Act. As only the affected party can file a writ petition, the aforesaid organization bears no locus standi at all. The petitioner has not been able to show the right that has been violated as alleged in the petition. In such situation there is no question is arises to issue the writ. Hence Mr. Akbar Ali Mikrani, the learned government Advocate, demanded that the petition be dismissed.
Mr. Shambhu Prasad Gyawali, the learned senior Advocate, on behalf of the respondent industry, mentioned that there is no difference of opinion between honourable justices as to the locus standi of the respondent is the Division Bench. It is important to see the legislation, which Hon`ble Judge Mr. Kedar Nath Upadhyaya has cited while establishing locus standi.
After repealing of the Nepal Mines Act B.S. 2013; Nepal Mines Act B.S. 2023 has been promulgated. Section 9 of Nepal Mines Act 2023 empowers HMG to direct the mine owner or issue necessary orders or instructions in accordance with the Rules Formulated under the Act. But the Rules have not been formulated under the Nepal Mines Act B.S. 2023, rather the Minerals (Amendment and Consolidation) Rules B.S. 2018 were formulated under the Nepal Mines Act B.S. 2013. Rule 6 of the said Rules provides the contents of license and the rule 23 stipulates the conditions which the contractor for the mining must abide by.
The Nepal Mines Act 2042 B.S. which has not come into force yet, should not be considered for the authority. There is not clearly mentioned in the petition that which provision of which Act does the respondent violate. If a section of law is violated, then the writ of Mandamus is issued. But such condition has not arisen in the current writ petition. Nepal Mines Act 2023 B.S. has no provision for environment. Though Rule 23 of the Minerals (Amendment and Consolidation) Rules 2018 B.S. provides for the preconditions, it does not stipulate any condition relating to environment.
Similarly, Rule 25 of the said.Rules has vested HMG the discretionary power to cancel any mining contract, whether to use such discretionary power solely lies on the government To prevent or stop anything, one needs law. This is the principle of the Rule of Law and hence the writ of Mandamus cannot be issued upon the respondents. The learned senior Advocate Mr. Ratan Lai Kanaudiya on behalf of the respondents stated before the bench that if person does not perform any duty as specified by Law, this is the matter of public interest. In the decision no 4895 it has been propounded that whether any matter is of public interest. Since the Hon`ble Judge Mr. Gajendra Keshari Bastola has expressed in his opinion that there is absence of environmental law that is necessary. Since there is absence of the environmental law it cannot be done as contented by writ petitioner. The opinion of Hon`ble Judge Mr. Kedar Nath Upadhyaya appears to base on Minerals Act 2042 B.S. But this Act is yet to come into effect and the provision of the Act cannot be enforced. Even though HMG has shows its consent by signing the limited Nation`s Conference on Environment and Development, Rio de Jenerio, nothing can be done in the absence of the environmental law. Environmental law should be enacted. If a norm, as directed by the law, is violated, only then the writ of Mandamus is issued, otherwise it cannot be issued. The Mining Act 2023 B.S. has no any provision for environmental issue and the Minerals Act 2042 B.S. has not come into force yet thus the writ of Mandamus issued on the basis of such Act by Hon`ble Judge Mr. K.N. Upadhyaya is not harmonious with the existing laws. The respondent has not violated any kind of Act or Rule.
Though HMG may cancel the contract under rule 25 of Minerals (Amendment and Consolidated) Rule 2018 B.S. in public interest, this is not feasible as such. Though the petitioner enlisted a number of committees who have published reports about the environment of Godawari, those committees were not constituted under any law, HMG is itself well aware of maintaining clean and good environment in Godawari area. There is no question of limiting itself on the opinion and contention of the Hon`ble Judges who have the dissenting opinions in the division bench. If and only if HMG couldn`t perform its duty under the law, then to make HMG perform that duty, the writ of Mandamus can be issued upon. In the present writ petition, such relevance is not found.
The contention of the petitioner is not based on the reality. The petitioner alleged that boulders fall that on St. Xaviers school and villages in the vicinity because of the dynamite explosion but the petitioner himself has made the St. Xaviers` School and the local inhabitants as respondents. The petitioner has not been able to demonstrate the level of environmental pollution, as alleged in the writ. The respondent industry has been abiding all the rules and guidelines issued by HMG for protection of ecology of Godawari area. In such situation the decision of Hon`ble Justice Gajendra Keshari Banstola who expressed the view that the writ cannot be issued and it is dismissed, was reasonable. Mr. Kusum Shrestha, learned Senior Advocate representing the respondent Marble Industry, argued that respondent industry has been operating Mines by limiting itself within the laws and regulations. It has been implementing the directions given by the government in time to time. There is not clearly mentioned is the petition that what sort of works of the industry has degraded the environment. No doubt, the environmental issue needs utmost importance but in the current context of Nepalese law, we do not have adequate and appropriate environmental laws. In this sense, the extent of seeking litigation is open to consideration to the Court. The petitioner has demanded that Godawari area be declared the National Sanctuary, but the absolute power to this context is vested within HMG. If there is threat to the mankind due to the environmental degradation, caused by the dust produced from any industry, the modern equipments can be used to safeguard the environment and life of the people. If it is possible to protect the environment by using modern equipments, stoppage of the industry is not suggestive. The respondent industry is not responsible for illegal deforestation of the Godawari area. It is the responsibility of the concerned authorities to prevent from such situations.
To close the mining is the discretionary power of HMG, vested under the rule 25 of the minerals Rules 2018 B.S.. Moreover, HMG is not obliged to exercise this discretionary power under any circumstances. The Minerals Act 2042 B.S., as used by Hon`ble Judge Mr. Kedar Nath Upadhyaya has not been promulgated -yet. Such Act can not be enforced. The respondent industry has installed safety tanks to safeguard water pollution and undertaken plantation program in empty space to safeguard deforestation. Though our country has accepted the environmental issues adopted in the international conference, the need for the environmental law is immensely felt. The rationality of any plan or project in relevant to the environment is decided by the concerned authority, not by the Court During installment of new industries, the expected effects to the environment can be analyzed but for the old industries, standard holding without causing environmental pollution can be determined. If the standard holding is not maintained, only then the 2nd step towards closure of the industry may be proceeded. Before closing the industry, an opportunity for using various technologies to prevent environmental pollution should be granted. The Court can review as to whether the activities of the industry are as directed by authority. The international affairs about the environmental aspect might be imitable but should be rethought in the context of Nepal. There were hints about the formulation of environmental law in our 7th and 8th plan. On 049/3/27 B.S. in the Section 42 of the Nepal Gazette, formation of the Environment Conservation Committee is also found. But the appropriate law regarding this vital aspect is still absent in our country. The petitioner has mentioned the Mining Act 2023 B.S., Mines Act 2018 B.S., Minerals Rules 2042 B.S. in his statement. But the Mines Act 2042 B.S. is yet to be promulgated and there is no specific Clause regarding environment in the Mining Act 2023 B.S. and the Minerals Rules 2018 B.S. Any act shall be carried out is accordance with law but in the absence of law it cannot be performed. Here the petitioner has introduced the Right to Life in the writ Though it is a dynamic concept, one should acknowledge that this should be as regulated by law when approaching the environment. Until and unless the constitutional and legal right has been violated, the writ of mandamus cannot be issued by a Court. Even for issuing the writ, one cannot rule out the principle of the Judicial Restraint. Though the petitioner has demanded that water pollution, sound pollution and air pollution be mitigated, the functioning of the type of technology to be applied for the mitigation of above environmental hazards is yet to be determined. If pollution caused by industry is prevented by using new technology, the situation does not arise to close the industry. The reports published on the issue are not reported under any law and have no legality. The writ petition should be adjusted with meaningful relation. Analysis of the direct intervention to the petitioner so far should be undertaken and the locus standi should then be determined prior to issuing upon the writ of mandamus. All the allegations brought about by the petitioner are not related with the respondent industry and the issuance of the writ of mandamus in absence of the appropriate law by the Hon`ble judge Mr. Kedar Nath Upadhyaya doesn`t appear to be an appropriate step.
The petitioner in his writ petition dated B.S. 2046/2/30 (June 12,1989) under the Articles 2, 10, 11(1) (2), 15 of the then Constitution of Nepal has alleged, inter alia, that since the environmental degradation produced due to the presence and the activities of the respondents have violated the public interest including the petitioner`s constitutional and legal right the environmental degradation and its untoward impact on the public life, health and property shall immediately be abandoned; incorporation policy as such to maintain the environmental balance after undertaking the research about to be effects of newly licensed industry shall be implemented, the petitioner went ahead demanding that a scientific team from the RONAST or the university be constituted to undertake the research about the environmental degradation so far created by the respondents and an adequate compensation be provided for the loss it has produced. The petitioner, further demanded in the writ petition that the natural and historical resources be maintained as it is, without causing any kind of impairment to them, adequate equipments and security measures be implemented for the workers; the illicit transaction of the natural flora and fauna be immediately halted; the freedom of movement of the professionals engaged in the research of the subject be ensured through order of the Court. The petitioner also demanded that to ensure a peaceful and healthy life in a hygienic environment, the writ of mandamus be imposed upon the respondents. Further more, the writ petitioner has mentioned different types of demand from Para 5 (a) to (i) of the writ petition.
While summing up the demand of the petitioner, it is appeared mainly that the respondent industry has degraded the environment and from the negative effect of which has infringed the right to live is the healthy environment of the person, and among the respondent the governments` authorities have not prohibited the works of the respondent Marble Industry and not made surveillance which caused such environmental degradation and therefore helped to the same. It is seem to be requested to issue an order that the environmental degradation activity caused by the respondent Marble Industry shall be controlled as per the Constitution and other Laws and Regulations.
It appears that the petitioner while lodging the petition on 2046-2-30 B.S. (Jun 12,1989) has taken the grounds of Articles 11(1) (2) and 71 of the then Constitution of Nepal 2019 B.S. and Sections 10 (A), and 83 of chapter on Court Proceedings of the Country Code for the introduction of the public interest. Article 11(1) of the Constitution of Nepal 2019 has guaranteed the right to life save in accordance with law. The life of is threatened in polluted environment. Right to life of a person is ceased to exist by pollution of environment. It is the legitimate right of an individual to be free from polluted environment. As the protection of environment is directly related with life of human being, it should be accepted that this matter is included in Article 11(1) of the Constitution of the Kingdom of Nepal 2047 (1990). There is no doubt the applicant has a profound interest in the present environmental issue. In fact an environmental problem is a matter of public interest and concern. And as such, the petitioner, involved in the environmental subject which has been proved to be of public interest, has a strong relationship with the subject of the present dispute. The promulgation of the Constitution of the Kingdom of Nepal 2047 (1990) repealed the then Constitution, and Article 88 (2) of the newly promulgated Constitution has protected the public interest.` There was situation where the question whether the applicant has locus standi could be raised under the previous Constitution. However as the present Constitution has established public interest as a protectable fundamental right, there is no question of locus standi.
Since clean and healthy environment is an indispensable part of a human life, right to clean, healthy environment is undoubtedly, embedded within the Right to Life. It is clear that the constitutional perimeter in which the applicant had filed the writ petition, has been substantively changed form the commencement of Article 26 (4) of the Constitution of the Kingdom of Nepal 1990, because this Article has taken environmental conservation as one of the basic Directive Principles of the State. Thus, as the environmental conservation is one of the objectives of the applicant `LEADERS Inc.`, it needs to be accepted that the applicant has the locus standi for the prevention of the environmental degradation.
Since the Industrial Enterprises Act 2049- B.S. requires for assessment of the likely untoward effects to the environment before providing the license for the establishment of an industry, not only the government policy but a clear legal provision has been developed to this end. Thus one of the contentions made by the petitioner that adequate measures regarding protection of the environment should be undertaken before providing the license for the establishment of an industry has been converted into a legal procedure. The demand for creating an investigative committee of either RONAST or the university seems to be fulfilled to some extent as there have been constituted various committees, task forces in this regard since B.S. 2040 to study the matter whether the Godawari Marble Industry has caused negative impact on the environment of the Godawari area and they have been submitted their respective reports as well. Amongst the reports published by these committees and taskforces, the petitioner in verbal and written submission has mentioned one, suggesting the marble industry should be closed to safeguard the environmental degradation. The applicant has not categorically asked for the closure of the marble industry in the writ petition rather has emphasized on the regulatory and remedial side for adoption of effective measure to stop or reduce negative environmental effect.
After the Stockholm Conference of 1972 the every ones attention is on environmental degradation. In developed countries including the United Sates, separate legislation has been enacted for environment conservation since the seventies. Recently developing and underdeveloped countries have begun the formulation of or are in the process of formulating separate law for environment. In our country also, there has not yet been a separate environmental law but all the necessary frameworks for this goal have been drafted. To declare environmental conservation as a state policy, under the Article 26(4) of the Constitution, to form of the environmental conservation commission led by the prime minister on 2049/9/27 B.S. (Jan 11,1993); environmental effect evaluation has prepared on 2050/2/4 B.S.(May 17 1993) by the aforesaid environment Conservation Commission; the Ministry of Environment is established, the matters of the environmental reforms are incorporated in its 8th 5- year plan of the planning commission; among the committees of the parliament an environmental committee is in existence in the house of representatives; and participated in to the world environmental conference in Rio de Jenerio, 1992 and has signed the same are some of the instances indicating a deep concern of HMG towards the conservation of the environment. But these are only some of the attempts but not creative works. But still the lack of a specific law has hindered the dynamism needed in this regards. It`s no doubt, nothing can be properly managed without any law and for the systematic provision of the environment related crimes and subsequent punishment, and an appropriate law is indispensable. Without law it is not possible to issue an order for punishment and closure of the industry. As the present laws are currently in scattered forms and also inadequate and ineffective, an appropriate, separate law encompassing all aspects of the environment is deem necessary to be formulated and promulgated as soon as possible.
Though the Minerals Act 2043 B.S. and Clause 11 (a), added by the amendment of 2052/2/5 B.S. (May 19, 1995) are important landmarks in safeguarding the environment, the government has not yet promulgated the Act but the Act was amended on 2052-2-5 (May 19,1995). If the executive does not implement whatever the legislation has enacted by the legislature, it cannot be said that the executive has been performing its works in accordance with spirit of the legislature. Hence it appears that the executive has shown ken interest in petty things but overlooked the constitutional beckoning and national-international public interest; Henceforth it is revealed that the time has came to mitigate the uncertainty prevailing presently and to fulfill national and international responsibilities towards the environment by promulgating a separate environmental law.
Since after the respondent Marble Industry in the present case got permission on 2024/7/2 B.S. (Oct. 19,1967) with the conditions of modernization and expansion, various reports published by different governmental and non-governmental organizations have indicated that the complaint about the negative impact to the environment of Godawari area has surfaced and this controversy bas been gradually proceeding towards the explosive stage. But no official scrutiny has ever been undertaken despite so many reports and controversies. So far as the environmental degradation of Godawari area is concerned its extent is yet to be explored in a scientific and official manner. The respondents in their discussions and submission have mentioned various remedy measures like forestation, silt satelliting construction, distribution of mask to the workers during working period in order to curb the environmental degradation. It appears quite essential to investigate the effectiveness of those regulatory and remedy measures as well as the ratio between the pollution rate and the permissible limit
So far the explosion during mining is concerned, permission for the explosion during mining has been mentioned in the conditions of the license but since the frequency and power of explosion have not been clearly defined there arises the likelihood of unlimited accounts of the explosion. Irregular unlimited explosions not only create the sound pollution but also attribute to the geological micro side effects that ultimately lead to the geological and botanical disasters. Thus it is indispensable to find out an appropriate and rffacticable alternate to the explosion and the government with its deep commitment must take an appropriate measure to this end. As indicated from the various reports that the grit production has been overshadowing the marble mining, there is possibility of greater ffiimber of explosions and subsequent sound pollution at the alarming rate: Hence the environmental degradation can be rninimized to some extent provided the prime objective of marble production be given upper hand.
It is beyond doubt that industry is the foundation of development of the country. Both the country and society need development however; it is essential to maintain environmental balance along with industry. It is essential to establish balance between the need to provide continuity to developmental activities and priority to the protection of the environment. Stockholm Conference has developed the concept of "Sustainable Development" along with the report of the United Nations Commission on Environment, this matter has been substantiated There has always been more or some adverse impact1 on the environment form industries. Therefore where there is development activity, there is adverse impact on the environment. First remedial and then regulatory measures need to be adopted to mitigate such negative effects. If these measures are unable to protect the environment, the activity that is causing environmental pollution needs to be closed. Development is for the interest, prosperity of human being. Therefore, life of human being is the end. Development is the means to live happily; human being cannot live clean and healthy life without clean and healthy environment. Therefore, safety of the environment is the means. Environment protection measures should be initiated taking into account this fact.
In the opinion of Hon`ble Judge Mr. Kedar Nath Upadhyaya, it has directed that alternative remedy measures should be undertaken at first. If this is not possible the renewal of the license is allowed in such a way that the concerned industry will have to concentrate on the environmental conservation. Even if this measure fails, then for the sake of public welfare the contract shall be canceled under the Contract Unification and Amended Rule 25(1). It is indicated by this views that the remedy measures shall be adopted at first and if it fails then the extensive measures like closure of the Mines shall be adopted.
Hon`ble Judge Mr. Gajendra Keshari; opinion has also pointed towards the remedy measures. He has viewed that environment is a matter of public interest and therefore there shall be appropriate management on this. Since the applicant in his writ petition has demanded the environment degrading activity be abandoned not that the marble industry at once be closed; it is mandatory to implement effective remedy measure at first to surmount the environmental degradation. If the problem still persists, then the 2nd step shall be proceeded. In the discussion on behalf of the applicant the opinion of closing the marble industry as mentioned in some reports, has been taken as a base and the instance of demanding full judgment of the some ground have been found. In the writ petition being unable to demand the closures of the industry due to the lack of sufficient legal ground, the claimant appears to aim at mitigating the environmental degradation and receiving other compensations. It is not mandatory herein to stick to the principle of traditional give and take policy in the public interest matter like environment. This fact shall be taken into consideration while discussing about the efficiency and degree of Judgment.
In relation to the submission of the applicant that lease can be cancelled on public interest under Rule 25(1) and accordingly mandamus can be issued for terminating the lease, and submission of the lawyers of the respondents that it is the job of the government to determine public welfare but not the Court, Rule 25(1) is the discretionary power of His Majesty`s Government. One cannot be compelled to use its discretionary power. The writ of mandamus is issued for the fulfillment of the legal responsibility. The petitioner has not been able to clearly point out a specific section of the law that has not been obeyed or followed, where someone claims that legal duty has not been fulfilled, such person needs to specifically indicate that such and such agency or official did not fulfill such and such legal duty. For the purpose of mandamus, legal duty must be definite and fixed. Therefore mandamus cannot be issued on the basis of general claim that public interest has not been fulfilled in the absence of clear statement of respondents` legal duty. Taking into account the sensitive, humanitarian issue of national and international importance such as the protection of the environment of Godawari area, we found that effective and satisfactory corrective activity has not taken place. Therefore, it is appropriate to issue this directives in the name of respondents to enforce the Minerals Act 2042 (1985), enact necessary legislation for protection of air, water, sound and environment and to take action for protection of the environment of Godawari area.
Be send a copy of the order to the respondent His Majesty`s Government also for implementation of the order.
Justice Laxman Prasad Aryal
We concur the aforesaid opinion. J. Govinda Bahadur Shrestha J. Trilok Pratap Rana
Done on the 14th day of the month of Kartik, 2052 (Oct. 31,1995)