judgement:
Civil Appeal Nos.
2012 2013 of 1974.
From the Judgement and Order dated 2.2.1973 of the Calcutta High Court in Appeal No. 211 of 1966.
B. Sen, Mrs. Geetanjali Mohan and Bishan Lal for the Appellant.
Dr. Shanker Ghosh, Darshan Singh, Praveen Kumar, I.B. Gaur and Ms. Shaifali Khanna (NP) for the Respondents.
The Judgement of the Court was delivered by KASLIWAL, J.
These appeals by special leave are directed against the order of the Calcutta High Court dated February 2, 1973.
Brief facts necessary for the determination of these appeals are that Shri Gouri Sankar Sarda (hereinafter referred to as Respondent No. 1) filed a Suit No. 1783 of 1965 in the Calcutta High Court against R. McDill and Company Pvt.
Ltd. (in short Appellant No. 1), Mirilal Dharamchand (Pvt.
) Ltd. (in short Appellant No.2 ) and Shri Misrilal Jain for the recovery of some amounts as well as for some other reliefs.
On or about 15th December, 1965 both the appellant Nos. 1 and 2 who were also defendants in the suit submitted a joint application in the High Court for staying proceedings of the aforesaid suit, under Section 34 of the (hereinafter referred to as 'the Act ').
In view of some formal defect in the application the High Court by order dated 25th February 1966 gave permission to withdraw the said application with liberty to file a fresh application.
As the entire case hinges on the above order dated 25th Feb. 1966, relevant portion of the said order is reproduced as under: 812 :Application withdrawn with liberty to make a fresh application.
Cost to be paid by the applicant.
" Though the above order does not make a mention of the formal defect, but according to the appellants the permission to withdraw was sought as no copy of the plaint was annexed with such application.
Thereafter, on March 21, 1966 the appellant Nos. 1 and 2 instead of making a joint application submitted two separate applications for staying the suit against the respective appellants and in the alternative for stay of the suit as a whole.
These applications were resisted by the plaintiff respondent No. 1 on the ground that separate applications were not in terms of the order dated 25.2.1966 and hence no stay should be granted.
Learned Single judge upheld the objection raised by the plaintiff and refused to stay the suit.
On appeal the Division bench of the Calcutta High Court by order dated 2nd February, 1973 dismissed the appeal.
The Division Bench took the view that liberty was granted to make a fresh application and as such under the provision of Order XXIII of the Code of Civil Procedure, the appellants had no right to move two separate applications for staying the suit.
Aggrieved against the aforesaid Order of the High Court dated 2nd February, 1973 the appellants have filed these appeals by the grant of special leave.
order XXIII C.P.C. as it existed at the relevant time is reproduced as under: ORDER XIII: WITHDRAWAL AND ADJUSTMENT OF SUITS 1.
Withdrawal of suit or abandonment of part of claim: (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
(2) Where the Court is satisfied (a) That a suit must fail by reason for some formal defect or (b) That there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of claim.
813 It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of claim.
(3) Where the plaintiff withdraws from a suit, or abandon part of a claim, without the permission referred to in sub rule he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw the consent of the others".
It was contended on behalf of the appellants that the provisions or Order XXIII were not applicable in the matter of applications filed under Section 34 of the .
It was contended that the provisions of Order XXIII could only apply to the proceedings of a suit and not in respect of any applications filed under the Act.
It was submitted that the High Court committed an error in taking a highly technical view of the matter that initially a joint application was submitted for stating the suit and liberty was given to withdraw the same and to make a fresh application and as such the appellants were not entitled to submit two separate applications though for the same purpose.
It was contended in this regard that there were two separate agreements between the plaintiffs and appellants Nos. 1 or 2 containing an arbitration clause and as such the appellants were given a legal advice to submit two separate applications for staying the suit and the High Court should not have dismissed the applications on the ground that liberty to file fresh application was given in respect of one application only.
Learned counsel for the appellants in support of this contention placed reliance on Nawab Usmanli Khan vs Sagarmal, On the other hand it was argued on behalf of the respondent No. 1 that provisions or Order XXIII C.P.C. were applicable in respect of an application under the Act.
It was contended that basically the proceeding had arisen on account of a suit filed by the plaintiff respondent and in that suit an application was submitted for staying the suit and referring the matter to Arbitrator under Section 34 of the Act.
The Order as such passed by the High Court on 25th February, 1966 would be governed by the provisions of order XXIII of the Code of Civil 814 Procedure and fresh application could only lie in accordance with the terms and conditions imposed at the time of permitting the withdrawal of the first application.
It was contended that it was an admitted position that a joint application was filed for staying the suit and the permission was granted to withdraw the same with liberty to make a fresh application and the defendants appellants had no right to submit two separate applications in violation of the order of the Court dated 25th February, 1966.
Reliance in support of the above contention was placed on Munshi Ram vs Banwari Lal, [1962] Supp.
(2) SCR 477 and Hakam Singh vs M/s Gammon (India) Ltd.; , We would first deal with the question whether the provisions of Order XXIII C.P.C. apply or not to an application for stay of suit filed under Section 34 of the Act.
Section 41 of the Act reads as under: 41 Procedure and powers of Court.
"Subject to the provisions of this Act and of rules made thereunder (a) The provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court, and to all appeals, under this Act, and (b) The Court shall have, for the purpose of, and in relation to, arbitration proceeding before the Court.
Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters".
According to the above provision the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court subject course to the provisions of The and of any rules made thereunder.
it has been laid down in various decisions from time to time that the following provisions of the Code of Civil Procedure shall apply to proceedings under the Act.
In the 'Law of Arbitration ' by R.S. Bachawat (2nd 1987 Ed., 585) under the Heading 'Applicability of Code of Civil Procedure to court proceeding ' it has been mentioned as under: 815 Subject to the provisions of the Act and the Rules made thereunder the provisions of the code of civil procedure aplply to all proceddings before the Court and to all appeals under the Act, Section 41(a).
The following provisions of the Code of Civil Procedure have been held to apply to certain proceedings under the Act: (1) Section 20 Hakam Singh vs Gammon (India) ltd.; , (2) Section 96(3) Union of India vs Mohinder Singh & Co., AIR 1971 JK 10.
(3) Section 24 Union of India vs Rup Kishore, AIR 1957 All 504.
(4) Section 114 read with Order 47 Executive Engineer vs Thingom Iboyaima Singh, AIR 1970 Manipur 76.
(5) Order 1 Rule 8 Abdul Gani vs Reception Committee, AIR 1936 Bom.
250: ILR (6) Order 3 Rule 5 Ram Bharosey vs Peary Lal, AIR 1957 All 265.
(7) Order 5 Shrinath Bros. vs Century Spinning & Wvg.
Co., AIr (8) Order 6 Rule 17 Indian Minerals Co. vs Northern India Uime Marketing Association, (9) Order 9 Rule 13 Ganeshmal vs Keshoram Cotton Mills, AIR 1952 Cal 10: ILR (10) Order 23 Rule, 3 Munshi Ram vs Banwari Lal, ; (11) Order 30 Rule 3 Governor General in Council vs Associated Live Stock Farm (India) Ltd., AIR 1948 Cal.
230: 52 CWN 288.
(12) Order 30 Rule 4 Soorajmull Nagarmull vs Sagar Mal, AIR 1978 Cal.
A proceeding under Section 14 Section 17 under the Act is not a suit and the provisions of Section 86(1) C.P.C. read with Section 87 C.P.C. does not apply to such a proceeding (Usman Ali Khan) vs (Sagar Mal,) ; Nor does the provision of Section 80 C.P.C. apply to a proceeding under Section 20 (Ramchand) vs (Governor General in Council,) AIR 1947 sind 147.
The following provisions of the Code Civil Procedure apply to appeals under the Act: 816 (1) Section 96(3) (Union of India) vs (Mohinder Singh & Co.,) AIR 1971 JK 10; (2) Order 41 Rule 5 (Scottish Union of National Insurance Co.) vs (Saraswati Sajnani,) AIR 1960 Cal.
22:63 CWN 800.
Apart from the above cases Section 41 of the Act itself provides that the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court.
We do not find any provision in the Act so as to take away the provisions or Order XXIII C.P.C. from being applied to applications filed under Section 34 of the Act, in a suit.
That apart the case before us has started on a plaint filed by the plaintiff and in such a suit if any application is filed under the Act, the same ought to be governed by the provisions of the Code of Civil Procedure.
In (Munshi Ram) vs (Banwari Lal,) (supra) the facts were that the Arbitrator gave an award.
The award was filed in the court by the Arbitrator.
The appellants made application for setting aside the award and the respondents filed their replies to the application.
Thereafter, the parties came to terms and asked for a decree to be passed in accordance therewith.
The court passed a decree on the award modified by the compromise.
In execution, the appellant contended that the decree was nullity as the Court had no jurisdiction to modify the award by compromise.
It was argued that after a dispute is referred to arbitration and an award has been obtained and filed in Court, it is not open to the Court to record the compromise under Order XXIII Rule 3 of the Code of Civil Procedure, because an award can be set aside or modified as laid down in the , there is no provision in the for recording the compromise, the above contention was not accepted and it was held as under: "When an award is given, the parties cannot, under the Act challenge it except as laid down there.
The powers of the Court are indicated by the Act.
They are limited to accepting the award, if there be no objection and passing a decree in accordance therewith, or superseding the reference or revoking or modifying the award or remitting it for further consideration, as laid down in the Act.
But, the Act does not disable the parties from terminating their dispute in a different way, and if they do it could not be intended by law that a dispute, which had been successfully terminated, should again become the subject of litigation.
If the parties are dissatisfied with the award and want to substitute it by a compromise involving matters alien to the original dispute 817 which are inseparable, the Court may supersede the submission, and leave the parties to work out their agreement in accordance with the law outside the ".
In (Nawab Usmanali Khan) vs (Sagarmal,) (supra) on which reliance has been placed by learned counsel for the appellant it was held that a proceeding under Section 14 read with Section 17 of the Act for the passing of a Judgement and decree on an award does not commence with a plaint or a petition in the nature of a plaint, and cannot be regarded as a suit and the parties to whom the notice of the filing of the award is given under Section 14(2) cannot be regarded as "suit in any Court otherwise competent to try the suit" within the meaning of Section 86(1) read with section 87B, Civil Procedure Code.
In the above case the appellant was the Ruler, or the former Indian State of Jaora.
The had money dealing with the respondent.
The respondent after obtaining a decree in terms of the award started execution proceedings against the appellant.
The Central Government gave a certificate under Section 86(3) read with Section 87B of the Code Civil Procedure, 1908 consenting to the execution of the decree against the properties of the appellant.
The Executing Court passed the prohibitory order under Order XXI Rule 46 of the Code of Civil Procedure in respect of sums payable to the appellant on account of the privy purse.
On an objection raised by the appellant by order dated March 15, 1958, the Court recalled the decree and cancelled the certificate as prayed for, on the ground that the amount receivable by the appellant on account of his privy purse was not attachable.
The respondent preferred appeal before the High Court.
The High Court allowed the Appeal No. 33 of 1958.
Usmanali Khan (appellant) filed an appeal before this Court.
This Court held as under: "Section 86(1) read with section 87B confers upon the Rulers of former Indian State substantive rights of immunity from suits.
Section 141 makes applicable to other proceedings only those provisions of the Code which deal with procedure and not those which deal with substantive rights.
Nor does section 41(a) of the Indian carry the matter any further.
By that section, the provisions of the Code of Civil Procedure, 1908 are made applicable to all proceedings before the Court under the Act.
Now, by its own language section 86(1) applies to suits only, and section 141, Code of Civil procedure does not attract the provisions of section 86(1) to proceedings other than suits.
Accordingly, by the conjoint application of section 41(a) of the Indian Arbitration 818 Act and sections 86(1) and 141 of the Code of Civil Procedure, the provisions of section 8691) are not attracted to a proceeding under s.14 of the Indian .
It follows that the Court was competent to entertain the proceedings under section 14 of the Indian and to pass a decree against the appellant in those proceedings, though no consent to the institution of those proceedings had been given by the Central Government".
The following observations in (Hansraj Gupta) vs (Official Liquidator, Dehra Dun Mussorrie Electric Tramway Co.) [1932] L.R. 60 I.A. 13, 19 made by Lord Russell of Killowen were quoted.
"The word 'suit ' ordinarily means, and apart from some context must be taken to mean a civil proceeding instituted by the presentation of a plaint".
The following observations made by Shah, J. in (Bhagwat Singh) vs (State of Rajasthan,) ; were also quoted with approval: "The appellant is recognised under article 366(22) of the Constitution as a Rule of an Indian State, but section 86 in terms protects a Ruler from being 'sued ' and not against the institution of any other proceeding which is not in the nature of a suit.
A proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of dispute ordinarily triable in a Civil Court, would prima facie not be regarded as falling within section 86 Code of Civil Procedure".
The above observation made by Lord Russell of Killowen and Shah, J. go to show that for a suit the civil proceedings is instituted by the presentation of a plaint.
In the aforesaid background it was held that a proceeding which does not commence with a plaint or petition in the nature of plaint, or where the claim is not in respect of dispute ordinarily triable in a civil court, would prima facie not be regarded as falling with Section 86, Code of Civil procedure.
In the case before us as already mentioned above a suit by presenting a plaint was instituted by the respondent No. 1 and thereafter it was sought to be stayed by submitting application under section 34 of the Act.
Thus we are clearly of the view that the above case of (Usmanali Khan) vs (Sagarmal,) (supra) is clearly distinguishable and does not help the appellants in the case before us.
It may be noted that Bachawat, J. who delivered the Judgment in (Usmanali Khan) vs (Sagarmal,) (supra) has himself in his 819 book on the 'law of Arbitration ' under the heading 'Applicability of Code of Civil Procedure to Court Proceeding ' has mentioned a number of decisions wherein the provisions of Code of Civil Procedure have been held to apply to proceedings under the Act.
We have already extracted the above passage from the book of Bachawat, j.
In (Hakam Singh) v (M/s Gammon (India) Ltd.,) (supra) it was held that the Code of Civil Procedure in its entirety applies to proceedings under the by Virtue of Section 41 of the later Act.
The jurisdiction of the Courts under the to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure read with Explanation (II) thereto, the respondent company which had its principal place of business at Bombay, was liable to be sued at Bombay.
Thus in the above case dispute arose between the parties and the appellant submitted a petition to the Court of the Subordinate Judge at Varanasi for an order under Section 20 of the Indian , 10 of 1940 that the agreement be filed and an order of reference be made to an Arbitrator or Arbitrators appointed by the Court to settle the dispute between the parties in respect of the construction works done by him.
In order to determine the place of suing, it was held that Section 20 of the Code of Civil Procedure would govern the case.
Thus we do not find any force in the submission made by learned counsel for the appellants before us that the provisions or Order XXIII of the Code of Civil Procedure will not apply to the Order passed by the High Court on 25th February, 1966.
We would, now, consider the scope and effect of the order dated 25th February, 1966 considering that the said order would be governed by the provisions of Order XXIII of the Code of Civil Procedure.
Admittedly, appellant Nos. 1 and 2 were defendants in the suit filed by respondent No. 1.
A joint application was submitted on their behalf for staying the proceedings of the suit, under Section 34 of the Act, Though the order dated 25th February, 1966 does not make a mention of the formal defect on account of which the said application was withdrawn, but the appellants have categorically stated that the same was withdrawn on account of the fact that copy of the plaint was not annexed with such application and in the absence of any counter made by the respondent, we take that the reason for withdrawing the application was that copy of the plaint was not annexed with such application.
The said application was allowed to be withdrawn with liberty to 820 make a fresh application.
To our mind, the term 'a fresh application ' used in singular had no more significance than the fact that as both the appellants had submitted one joint application as such the liberty was given to make a fresh application.
The main purpose of moving the application by the appellant was to stay the proceedings of the suit under Section 34 of the Act the intention and the purpose of moving two separate applications is also to stay the proceedings of the suit under Section 34 of the Act.
The explanation given by the appellants for moving two separate applications is that they were given a legal advice to move two seperate applications as there were two different agreements between the appellant Nos. 1 and 2 and the respondent No. 1.
There was no element of mala fide in doing so and the two applications were also submitted on March 21, 1966 i.e. within 30 days of the order dated 25.2.66.
Learned counsel for the respondent No. 1 submitted that there was no merit in the applications submitted by the appellants under Section 34 of the Act and the proceedings of the suit have already remained stayed for nearly 15 years in this Court and now there is no justification for further staying the suit.
So far as the pendency of this appeal in this Court is concerned, no party is at fault and it would have been proper if the respondent had been advised not to take such objection of non maintainability of two applications before the High Court and would have contested the applications on merits.
We are not deciding the question of maintainability of the applications under Section 34 of the Act on merits and we make it clear that respondent No. 1 would be free to take all objections as he likes against the grant of such application and the same would be decided by the High Court on merits in accordance with law.
We are, however, clearly of the view that the High Court was not correct in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within the order passed by the High Court dated 25th February, 1966.
In view of the fact that it is an old matter, we request the High Court to dispose of the applications filed by the appellants Nos. 1 and 2 under Section 34 of the Act.
At the earliest.
In the result, these appeals are allowed, the order of the High Court dated 2nd February, 1973 is set aside and the case would now be decided by the High court in the manner indicated above.
The parties are left to bear their own costs.
R.P. Appeals Allowed.

summary:
In a suit filed by plaintiff respondent no.1 before the High Court defendant appellants filed a joint application under section 34 of the for staying proceedings of the suit and referring the matter to arbitration.
In view of some formal defects in the said application, the High Court on 25.2.1966 without mentioning the defects ordered.
"Application withdrawn with liberty to make a fresh application".
on 21.3.1966 the appellants submitted two separate applications for staying the suit in so far as it related to them or in the alternative for stay of the entire suit.
The plaintiff respondent resisted the applications as not being in terms of the order dated 25.2.1966.
Upholding the objection, Learned Single Judge refused to stay the suit.
On appeal, the Division bench of the High Court held that the liberty was granted to 'make a fresh application ' and as such, under the provisions or Order XXIII, C.P.C., the appellants had no right to move two separate applications to stay the suit.
In appeal by special leave to this Court it was contended that provisions or Order XXIII, C.P.C. were not applicable to applications filed under section 34 of the ; and that the High Court committed an error in taking a technical view that as liberty was given to withdraw the application in order to make a fresh application, the appellants were not entitled to make separate stay applications.
Respondent No. 1 supported the impugned judgment.
Allowing the appeals, this Court, 810 HELD: 1.
In view of section 41 of the , subject to provisions of the Act, Code of Civil Procedure, 1908 apply to all proceedings before the Court No. provision in the takes away the provisions of Order XIII, C.P.C. from being applied to applications filed under section 34 of the in a suit.
[814F, 816B] Hakam Singh vs M/S Gammon (India) Ltd, ; relied on.
Nawab Usman Ali Khan vs Sagarmal, ; , held inapplicable.
Munshi Ram vs Banwari Lal [1962] Supp; (2) SCR 477; Hansraj Gupta vs Officlal Liquidator Dehradun Musoorie Electric Tramway Co, [1932] L.R. 60 I.A. 13; Union of India vs Mohinder Singh & Co., AIR 1971 JK 10; Union of India vs Rup Kishore, [1957] All. 504; Executive Engineer vs Thingom Iboyaima Singh, AIR 1970 Bom. 250; Ram bharosey vs Peary Lal, AIR 1957 All. 265; Shrinath Bros. vs Century Spinning & Wvg.
Co. AIR 1968 Bom 443; India Minerals Co. vs Northern India Lime Making Association, ; Ganeshmal vs Keshoram Cotton Mills, AIR 1952 Cal.
10; Governor General in Council vs Associated Live Stock Farm (India) Ltd., AIr ; Soorajmull Nagarmull vs Sagar Mal, AIR 1978 Cal. 239; Ramchand vs Governor General in Council, AIR 9147 Sind.
147 and Scotish Union of National Insurance Co. vs Saraswati Sajnani, Air 1960 Cal. 22, referred to. 2.
In the instant case, apart from section 41 of the providing for application of Code of Civil Procedure and there being no provision taking away provisions of order XXIII, C.P.C. from being applied to the applications for stay filed under section 34 of the , the proceeding started on a plaint filed by the plaintiff and in such a suit if any application was filed under the , the same ought to be governed by the provisions of the Code of Civil Procedure.
[816A c] 3.1 The High Court was not right in dismissing the applications on the ground that two applications were not maintainable as the same were not covered within its order dated 25.2.1966.
[820E F] 3.2 The term 'a fresh application ' in the order dated 25.2.1966 used in singular had no more significance than the fact that as both the 811 appellants had submitted one joint application, liberty was given to make a fresh application, The main purpose of moving the applications under section 34 of the was to stay the suit proceeding.
The intention and purpose of moving two such separate applications was also the same.
The explanation given by the appellants was that they were given a legal advice to move two separate applications as there were two different agreements between appellants No. 1 and 2 and the respondent No. 1 There being no element of mala fide in the two applications having been submitted within 30 days of the order dated 25.2.1966, the same were maintainable .
[820A c]


judgement:
ition No. 13029 of 1985.
(Under Articles 32 of the Constitution of India).
Petitioner in person.
Altaf Ahmed, Additional Solicitor General , Sri Narain Mathur, R. Mohan, Ms. Anil Katiyar, Ms. Sushma Suri, K. Swamy, R.K. Maheshwari and S.M. Ashri for the Respondents.
The Judgement of the Court was delivered by.
RANGANATH MISRA, CJ.
This is an application under Article 32 of the Constitution in the public interest litigation sector.
A practising advocate who is the Chairman of the Environment Protection Cell operating at Delhi is the petioner.
This Court has been asked to issue directions for closing down of hazardous industries located in the densely populated areas of Delhi and for regulation of air pollution caused by automobiles operating in the area as also the thermal units generating power for the Delhi Electric Supply Undertaking, (here after referred to as `DESU ').
The Union Territory of Delhi has a total population of about 96 868 lakhs, out of which the urban area consisting of old Delhi, New Delhi and the Cantonment has a population of around 90 lakhs.
By 1947 when the country became independent, Delhi had a population of a little over 5 lakhs.
In these little more than two scores of years the population has, thus, multiplied by 18 times.
Though it is a spread out city, in some pockets, the density of population is very high and these have become congested.
The problem of environmental pollution is global in a increasingly small world and concerns all countries irrespective of their size, level of development or ideology.
Notwithstanding political division of the world into national units, the oceanic world in an inter connected whole; the winds that blow over the countries are also one.
Pollution is capable of moving from continent to continent.
If USSR carries out a nuclear test, the fall out may be carried by the winds to any part of the world and such fall out or irresponsible disposal of radio active waste from a remote energy plant in one country may turn out to have greater adverse effect on the neighbouring countries that the danger of full fledged war.
Informed public mind is already agitated over the polluting effect of the Gulf War and the common concern of the entire homosapien race is obsessed by the apprehension of acid rain, toxic effect on the seas and even on the atmosphere.
The awareness of interaction of man with his environment is of recent origin.
The Declaration of the United Nations Conference on the Human Environment held in Stockholm in June, 1972 stated: "Man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth.
In the long and tortuous evolution of the human race on this planet a stage has been reached when, through rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale.
Both aspects of man 's environment, the natural and the man made, are essential to his well being and to the enjoyment of basic human rights even of life itself." Principle No. 1 of the same Declaration went on to say: "Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality 869 that permits a life of dignity and well being, and he bears solemn responsibility to protect and improve the environment for present and future generations. ".
The closeness of the undeveloped and under developed communities to nature is not found in the developed ones.
Our ancestors had realised the importance of the tie between man and his environment.
The Samaveda note that Flute of Divine love by saying: "Listen to the melodious music of the divine poet.
He plays upon the flute of love, the notes soar to high heaven and reach the distant stars and dance on the raging waves of the sea." The earth, the seas, the sky, the stars are all woven together by the soft strains of the divine music.
Its vibrants echo through the corridors of time in the endless canopy of the sky." Norman Myers quoted in Sir Edmond Hillary 's Ecology 2,000 ' has rightly observed: " The fate of African environments is thus determined not only by local circumstances.
It is influenced, in part at least, by the lifestyles of the developed world.
These economic ecological linkages between different members of the international community are little recognized to date, but they represent a significant factor for land use patterns in Africa 's Savannahs".
Our Constitution by the Forty Second Amendment introduced Article 48A as also Article 51A into the Constitution.
these Articles provide: "48A. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."" 51A. It shall be the duty of every citizen of India: (g) to protect and improve the natural environment including forests, rivers and wild life, and to have compassion for living creatures.
" 870 The incorporation of protection of environment as an obligation of the State in the Directive Principles and the mandate in Article 51 A to the citizens of India as part of fundamental duty are indications of the Constitutional recognition of importance of environment on life both the flora and the fauna.
Ours is a great country territorywise, from the stand point of population as also legacy wise.
Though politically divided into many States throughout the ages it has been bound by a common culture short lived empires have grown up and Delhi became the capital of such empires of the north.
Delhi was the capital of the Mughals too but the Britishers had in the initial period Calcutta as their capital and it was only 1911 that the Indian capital of the British empire was shifted from Calcutta to Delhi.
With the growth of importance of Delhi, on the outskirts of the then city gradually industries developed.
Lack of vision and inadequate statesmanship allowed many of these industries to grow perilously close to human habitation and in the process of expansion of the city with the growth of population and activity, the industrial belt became a part of the city.
Hindustan Insecticides Limited, which is respondent No. 6 before us, is one of such industries, DESU has three generating units One known as the indraprastha Power Station, the other as the GT Power Stations and the third as the RPR Power Station.
These too are located within the densely populated area.
The Delhi Transport Corporation (hereafter DTC) which provides the public transport facility to the residents of Delhi operates thousands of buses has been impleaded as respondent No. 5 on the allegation that it is one of the notorious polluting agencies.
A monitoring Committee on ambient and automotive emission levels was set up for examining the impact of surface transport on air environment of Delhi at the instance of the Director of Transport, Delhi Administration.
The facts and figures available from the report may briefly be indicated.
As on March 31, 1982.
Delhi had a total number of 5,92,584 vehicles of which 65% were two wheelers, 3.5% were three wheelers, 25% cars, jeeps and other medium size vehicles and 1.5% were buses and the remaining 7% were goods carriers.
The affidavit of the Deputy Director of Transport of the Delhi Administration indicates that the vehicular population of 1990 is 13.5 lakhs.
This means that within about 8 years there has been an increase of about 8 lakhs of vehicles in Delhi which would work out to an addition of 871 about 1 lakh every year.
The proportion of the two wheelers has perhaps not been seriously disturbed.
Though the Deputy director of Transport has indicated that the automobiles contribute about 50% of the polluting factor there is material to suggest that the proportion is still higher.
Two wheelers and three wheelers contribute over sixty percent of the total emission of carbon monoxide and about eighty percent of the total hydrocarbons.
To meet the challenging task of controlling pollution, Air (Prevention and Control of Pollution) Act, 1981 has been enacted.
Respondent 3 is the Central Board set up under the Act.
The statute authorise Government in consultation with the Board to instruct the Transport Authorities for developing expertise by taking vehicular pollution survey covering all ramifications.
The Union Territory of Delhi was chosen on selective basis because it maintains the highest traffic volume.
Under the Motor Vehicles Act of 1989 certain provision have been made for regulating emission resulting in pollution.
Transport Authorities of the Delhi Administration had placed facts and figures relating to steps taken under the Act for regulating pollution.
Emission checking.
prosecution as also steps for canceling of registration are said to be the normal steps taken by the Administration in this behalf.
We were , however, not satisfied that the action taken in this behalf was adequate and the challenging task of pollution control could not be successfully dealt with that way.
Law alone also cannot help in restoring a balance in the biospheric disturbance.
Nor can funds help effectively.
The situation requires a clear perception and imaginative planning.
It also requires sustained effort and result oriented strategic action.
Campaign for general awakening of the people using automobiles of different classifications and among the people inhabiting the capital is indispensable preliminary.
All persons using automobiles should have a fair knowledge of the baneful effect on the community including those who use such vehicles on account of the emission from such vehicles.
Until that is done in an effective way the appropriate attitude would not develop and cooperation for reducing pollution would not emerge.
A brief extract from the journal entitled `Environmetal Policy & law ' vol.
13 nos.
1 2 Spring 1983) published from North Holland describes the problem thus: 872 "It became clear that all these measures are not themselves sufficient to come to grips with the problem of air pollution caused by road traffic.
In every one of the towns and cities, the problem of air pollution from motor vehicle traffic is a considerable one, and it was more or less generally apparent that present norms for motor vehicle exhausts are not adequate so as to achieve the necessary reductions in a rapid space of time.
In fact, the problem is, in part, on the increase.
This is not only true of private cars, especially diesel powered vehicles, but also of commercial vehicles . " "Despite the legal and other restrictions mentioned above, which hamper the towns and cities involved in pursuing effective policies aimed at limiting motor vehicle exhausts, some interesting strategies have been thought up which have either led to improvements in themselves or at least stimulated attitudes towards environmental policies.
For example, in formulating their regulations in the event of smog, both Munich and Berlin offered positive stimulus for the purchase of vehicles fitted with catalytic converters.
As far as city owned motor vehicles are concerned, some authorities have pursued a deliberate policy of purchasing those automobiles with improved exhaust systems.
" In course of the hearing of this matter we had called upon counsel to look at the problem not as an adversial litigation but to come forward with useful deliberations so that something concreate could finally emerge for easing the situation.
We were shown some literature and even gadgets which might help reduction of pollution.
The question of eliminating use of motor spirit and replacement of battery operated two wheelers was also mooted.
The Association of Indian Automobile Manufacturers had made an application for intervention and was present in Court.
Some of the aspects which came up for discussion were indeed sufficiently technical.
Some other aspects require laboratory testing and probe into efficacy.
Therefore, the question of setting up of a high powered committee was also mooted.
We are happy to find that the deliberations in course of the hearing have taken a concreate shape and the Ministry of Environment & Forests has ultimately instructed the learned Attorney General in writing (copy placed on the record) that a Committee could be set up by the Court to look into the problem of vehicular pollution in Delhi 873 and for devising methods of solution of the problem.
The Ministry has agreed that a retired Judge of this Court could act as Chairman and has suggested that Shri M.C. Mehta, the petitioner herein and Shri.
N.S. Tiwana, Chairman of he Central Pollution Control Board may be made the Members of the Committee.
We find this suggestion of the Ministry acceptable subject to certain modification.
We are inclined to take the view that Shri Sudhakar Girdharlal Shah representing the Association of Indian Automobile Manufacturers could be taken as a member of the Committee and the Committee would also have the power to co opt experts not exceeding three for its efficient working from time to time.
Shri Justice K.N. Saikia who has recently retired as a Judge of this Court is appointed as the Chairman of the Committee with Shri N.S. Tiwana, Shri M.C. Mehta and Shri.
S.G. Shah as Members.
The Joint Secretary in the Ministry of Environment and Forests shall be the convenor Secretary of the Committee.
Shri Justice Saikia shall be entitled to all the benefits to which a retired Judge of this Court while called back to duty is entitled.
The Committee may be constituted with effect from 18th March, 1991, under an appropriate Notification of the Union Government in the relevant Ministry.
The terms of reference for the time being as recommended by the Ministry are the following: "(i) To make an assessment of the technologies available for vehicular pollution control in the world; (ii) To make an assessment of the current status of technology available in India for controlling vehicular pollution; (iii) To look at the low cost alternatives for operating vehicles at reduced pollution levels in the metropolitan cities of India.
(iv) To examine the feasibility of measures to reduce/eliminate pollution from motor vehicles both on short term and long term basis and make appropriate recommendations in this regard; (v) To make specific recommendations on the administrative/legal regulations required for implementing the recommendations in (iii) above.
" For the time being the Committee may proceed to consider these.
874 other relevant aspects may be taken into consideration by the Committee.
This writ petition shall be deemed to be pending for the purpose of monitoring.
The Committee shall furnish a report to this Court once in two months as to the steps taken in the matter.
The Union Government and the Delhi Administration are directed to effectively cooperate with the Committee for its successful operation.
V.P.R. Petition pending for monitoring.

dataset_name: IN-Abs

summary:
The petitioner, an Advocate and Chairman of the Environmental Protection Cell filed the petition under Article 32 asking the Court to issue directions for closing down of hazardous industries located in the densely populated areas of Delhi, and for regulation of air pollution caused by automobiles operating in the area as also the thermal units generating power for the Delhi Electric Supply Undertaking.
Making an interim order, and keeping the writ petition pending for the purpose of monitoring, the Court.
HELD: 1.
The incorporation of protection of environment as an obligation of the State in the Directive Principles and the mandate in Article 51 A to the citizens of India as part of fundamental duty are indications of the Constitutional recognition of importance of environment of life both the flora and the fauna.
[870 A B] 2.
Law alone also cannot help in restoring a balance in the biospheric disturbance.
Nor can funds help effectively.
The situation requires a perception and imaginative planning.
It also requires sustained effort and result oriented strategic action.
Campaign for general awakening of the people using automobiles of different classification and among the people inhabiting the Capital is an indispensable preliminary.
[871E G] 3.
All persons using automobiles should have a fair knowledge of the baneful effect on the community including those who use such vehicles on account of the emission from such vehicles.
Until that is done in an effective way the appropriate attitude would not develop and cooperation for reducing pollution would not emerge.
[871 F H] 867 4.
A Committee is set up by this court to look into the problem of vehicular pollution in Delhi and for devising methods of solution of the problem.
[ 872 H 873 A].
A retired Judge of this court to act as Chairman, the petitioner and the Chairman of the Central Pollution Control Board and the person representing the Association of Indian Automobiles Manufacturers could be the members of the Committee.
The Committee would also have the power to co opt experts not exceeding three for its efficient working from time to time.
The Joint Secretary in the Ministry of Environment and Forests shall be the Convenor Secretary of the Committee.
[873A D] 6.
The Committee may be constituted with effect from 18th March, 1991, under an appropriate Notification of the Union Government.
[873D] 7.
The Committee shall furnish a report to this Court once in two months as to the steps taken in the matter.
The Union Government and the Delhi Administration are directed to effectively cooperate with the Committee for its successful operation.
[874B]