Prevalence of Tort law in pursuance to the Environmental Problems and its Remedies

Shashank Sahay, Research Associate

Damages and Injunction

A plaintiff in a tort action may sue for damages or an injunction, or both.

Damages

Damages are the pecuniary compensation payable for the commission of a tort. Damages may be either ‘substantial’ or ‘exemplary’. Substantial damages are awarded to compensate the plaintiff for the wrong suffered. The purpose for such damage is restitution, i.e. to restore the plaintiff to the position he or she would have been in if the tort had not been committed. Such damages, therefore, correspond to fair and reasonable compensation for the injury.

Exemplary damages are intended to punish the defendant for the outrageous nature of his or her conduct, as for instance, when he or she persists in causing a nuisance after being convicted and being fined for it1. The object of court in such cases is to deter the wrongdoer. The deterrence objective has recently prompted the Supreme Court to add a fresh category to the type of cases where exemplary damages may be awarded, viz., when harm results from an enterprise hazardous or inherently dangerous activity. In the Shri Ram Gas Leake case2, oleum gas escaped from a unit of the Shriram Foods and Fertilizers Industries and injured a few Delhi citizens. The court observed that in such cases, compensation ‘must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount compensation payable by it3.

Damages awarded in tort action in India are notoriously low, and pose no deterrent to the polluter. Lengthy delays in the adjudication of cases combined with chronic inflation dilute the value of any damages that a successful plaintiff may receive. Consequently, although in theory damages are the principal relief in a tort action, in practice injunctive reliefs is more effective in abating pollution. Accordingly, litigation strategies must shift away from conventional common law emphasis on damages. Lawyers in India intent on abating pollution may seek a temporary injunction against the polluter followed by a perpetual injunction on decree. Damages should be viewed as bonus4.

Injunction

An injunction is a judicial process where a person who has infringed, or is about to infringe the rights of another, is restrained from pursuing such acts. An injunction may take either a negative or a positive form. It may require a party to refrain from doing a particular thing or to do a particular thing. Injunction is granted at the discretion of court5.

Injunctions are of two kinds, temporary and perpetual. The purpose of a temporary injunction is to maintain the state of things at a given date until trial on the merits. It is regulated by sections 94 and 95 as well as Order 39 of the Code of Civil Procedure of 1908. It may granted on an interlocutory application6at any stage of a suit. It remains in force until the disposal of the suit or until further orders of court.

Rule 1 of Order 39 provides the temporary injunctions may be granted where it is provided:

a)      “That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any part of the suit, or wrongfully sold in execution, of a decree, or

b)      That the defendant threatens, or intends , to remove or dispose of his property with a view of defrauding his creditors, or

c)      That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit”.

The Supreme Court has held that courts also have an inherent power to issue temporary injunction in circumstances that are not covered by the provisions of Order 39 when the court is satisfied that the interests of justice so required7.

The grant or refusal of a temporary injunction is governed by three well established principles : (1) the existence of a prima facie case ( a showing on the facts that the plaintiff is very likely to succeed in the suit); (2) the likelihood of irreparable injury (an injury that cannot be adequately compensated for damages) if the injunction is refused; and (3) that the balance of convenience requires the issue of the injunction (a showing that the inconvenience to the plaintiff if the temporary injunction is withheld exceeds the inconvenience to the defendant if he or she is restrained).

Perpetual injunctions are regulated by sections 37 to 42 of the Specific Relief Act of 1963. A perpetual injunction permanently restraints the defendant from doing the act complained of. It is granted at a court’s discretion after judging the merits of the suit. A perpetual injunction is intended to protect the plaintiff indefinitely (so that he or she need not resort to successive actions in respect of every infringement), assuming the circumstances of the cse essentially remains unchanged.

A court may permanently restrain the defendant where damages do not provide adequate relief or where the injunction would prevent a multiplicity of proceedings. Thus, where hazardous dust from a brick grinding machine polluted the air of neighboring medical practitioner’s consulting room, the polluter was permanently restrained from operating the machine8. A court may grant an injunction even though the anticipated damage may not be very serious, as long the damage is continuous or frequent. The ‘balance of convenience’ test also applies to the award of permanent injunction: The court must be satisfied that the damage that the defendant would suffer by the grant of the injunction is outweighed by the damage the plaintiff would suffer if the injunction was refused. Finally, the court will consider the injunction’s impact on third parties, for example, when granting of an injunction would throw a large number of people out of work.

Nuisance

Modern environmental law has its roots in the common law relating to nuisance. A nuisance is an unlawful interference with the plaintiff’s use or enjoyment of land. A plaintiff must, therefore, prove some injury to his enjoyment of property and his own interest in that property. An occupier of the property can sue for nuisance. Ordinarily, a nuisance means anything that annoys hurts or offends; but for an interference to be an ‘actionable nuisance’, the conduct of the defendant must be unreasonable. Further, a nuisance must not be momentary, but must continue for some time: A single, short inconvenience is not actionable. A nuisance would include offensive smells, noise, air pollution and water pollution9.             The remedies of a public nuisance are:-

  1. A criminal prosecution for the offence of causing public nuisance10;
  2. A criminal proceeding before a magistrate for removing public nuisance11;
  3. A civil action by the Advocate General or by two or more members of the public with permission of the court, for a declaration, an injunction or both12.

A private nuisance is a substantial and unreasonable interference with the use and enjoyment of land. Reasonableness of the defendant’s conduct is the central question in nuisance cases. To determine ‘reasonability’ the courts are guided by the ordinary standard of comfort prevailing in the neighborhood. Minor discomforts that are common in crowded cities will not be viewed as nuisance by the courts.

An action for private nuisance may seek injunctive relief as well as damages. In cases of a continuing cause of action, such as pollution of a stream by factory wastes or smoke emissions from a chimney, the proper course is to sue for an injunction. Repeated actions for damages may be brought to recover the loss sustained up to the date of the court’s decree; but future losses, which are contingent on the continuance of the wrong, are not usually awarded. Damages offer poor relief since courts grant the plaintiff an injunction where a nuisance exists or is threatened, unless he or she is guilty of improper conduct or delay.

A two decade journey through four tiers of the court culminated in the dismissal of an action to restrain a baking oven from being operated in a residential locality in Kuldip Singh v Subhash Chandra Jain13. The plaintiff, Subhash Chandra Jain, feared that the baking oven and 12 foot chimney built by his neighbor would cause a nuisance when the bakery commenced. The trial court restrained the defendant since operating of the oven ‘would result in emitting smell and generating heat and smoke which taken together would amount to nuisance’. The Supreme Court drew a distinction between an existing nuisance and a future nuisance: ‘ In case of a future nuisance, a mere possibility of injury will not provide the plaintiff with a cause of action unless the threat be so certain or imminent that an injury actionable in law will arise unless prevented by an injunction. The court may not require proof of absolute certainty or a proof beyond reasonable doubt before it may interfere; but a strong case of probability that the apprehended mischief will in fact arise must be shown by the plaintiff.’ In a remarkable conclusion, the apex court found that the plaintiff’s apprehension about a smoking oven next door causing a nuisance was not justified by the pleadings or the evidence and dismissed the suit.

In B. Venkatappa v B. Lovis14, the Andhra Pradesh High Court upheld the lower court’s mandatory injunction directing the defendant to close the holes in a chimney facing the plaintiff’s property. The court ensured enforcement of its order by authorizing the plaintiff to seal the holes at defendant’s cost, if the defendant failed to do so. The High Court stated that the smoke and fumes that materially interfered with ordinary comfort were enough to constitute an actionable nuisance and that actual injury to health need not be proved. The Court also observed that the existence of other sources of discomfort in the neighborhood were no defence, provided that the source complained of materially added to the discomfort. The court rejected the defence that the plaintiff ‘came to a nuisance’ : ‘the fact that the nuisance existed long before the complainant occupied his premise, does not relieve the offender unless he can show that as against the complainant he has acquired a right to commit nuisance complained of15. The 1905 Judgment of Calcutta High Court in J, C. Galstaun v Dunia Lal Seal16is considered to be the earliest reported pollution control cases in India, as apart from its historical significance, the case is important because it shows how the common law regulatory system can check polluters in a pre-industrialized society.

Negligence      

A common law action for negligence may be brought to prevent environmental pollution. In an action for negligence, the plaintiff must show that

  1. The defendant was under a duty to take reasonable care to avoid the damage complained of ;
  2. There was a breach of this duty; and
  3. The breach of duty caused the damages.

The degree of care required in a particular case depends on the surrounding circumstances and varies according to the risk involved and the magnitude of the prospective injury.

An act of negligence may also constitute a nuisance if it unlawfully interferes with the enjoyment of another’s right in land. Similarly, it may also amount to a breach of rule of strict liability in Rylands v Fletcher17, if the negligent act allows the escape of anything dangerous which the defendant has brought on land. The casual connection between the negligent act and the plaintiff’s injury is often the most problematic link in pollution cases. Where the pollutant is highly toxic and its effect is immediate, as with the methyl isocyanate that leaked from the Union Carbide plant in Bhopal, the connection is relatively straightforward. The casual link is more tenuous when the effect of the injury remains latent over long periods of time and can eventually be attributed to the factors other than the pollutant, or to polluters other than the defendant18. The Mukesh Textile Mills Case19, is one of the few reported pollution cases in which a judgment was rendered for damages.

Strict Liability        

The rule in Ryland v Fletcher20holds a person strictly liable when he brings or accumulates on his land something likely to cause harm if it escapes, and damage arises as natural consequence of its escape. But ‘strict’ liability is subject to a number of exceptions that considerably reduce the scope of its operation. Exceptions that have been recognized are:

  1. An act of God ( natural disaster such as earthquake or flood);
  2. The act of third party (e.g., sabotage);
  3. The plaintiff’s on fault
  4. The plaintiff’s consent
  5. The natural use of the land by the defendant (i.e., strict liability applies to a non – natural user of land); and
  6. Statutory authority.

Absolute liability

With the expansion of chemical-based industries in India, increasing number of enterprises store and use hazardous substances. These activities are not banned because they have a great social utility (e.g., the manufacture of fertilizers and pesticides). Traditionally, the doctrine of strict liability was considered adequate to regulate such hazardous enterprises. This doctrine allows for the growth of hazardous industries, while ensuring that such enterprises will bear the burden of the damage they cause when a hazardous substance escape. Shortly after the Bhopal gas leak tragedy of 1984, the traditional doctrine was replaced by the rule of ‘absolute’ liability, a standard stricter than strict liability. Absolute liability was first articulated by the Supreme Court and has since been adopted by Parliament.

The genesis of absolute liability was the Shriram Gas Leak Case21which was decided by the Supreme Court in December 1986. The case originated in a writ petition filed in the Supreme Court by the environmentalist and lawyer, M.C. Mehta as a public interest litigation. The petition sought to close and relocate Shriram’s caustic chlorine and sulphuric acid plants which were located in a thickly populated part of Delhi. Shortly after Mehta filed this petition, on 4th December 1985 oleum leaked from Sriram‘s sulphuric acid plant causing widespread panic in the surrounding community22.

Chief Justice Bhagwati, who presided over the Supreme Court Bench, was concerned for the safety of Delhi’s citizens. Moreover, the Chief Justice saw in the oleum leak a way of influencing the pending and far more important Bhopal Gas Leak Case. In the first reported order in Shriram, the Chief Justice observed that the principles and norms for determining the liability of  large enterprise engaged in the manufacture and sale of hazardous products were ‘ questions of the greatest importance particularly since, following upon the leakage of  MIC gas from the Union Carbide Plant in Bhopal, lawyers, judges and jurists are considerably exercised as to what controls, whether by way of relocation or by way of installation of adequate safety devices, need to be imposed upon [hazardous industries], what is the extent of liability of such corporations and what remedies can be devised for enforcing such liability with a view to securing payments of damages to the person affected by such leakage of liquid or gas23.

Union Carbide hinted at a sabotage theory’ to shield itself from claims of the Bhopal victims. It was suggested that a disgruntled employee working in the pesticide factory owned by the Carbide’s Indian subsidiary may have triggered the escape of the gas. Such a theory afforded a defense under the rule of strict liability as laid down in Rylands v Fletcher24. But any faith Union Carbide may have reposed in the sabotage theory was soon shaken by Chief Justice Bhagwati’s rejection of the Ryland’s rule in situations involving hazardous industries.

The absolute liability theory laid down by the Supreme Court in Shriram was first applied by the Madhya Pradesh High Court to support its award of interim compensation to the Bhopal victims25. In light of Shriram, Justice Seth of the High Court described the liability of the enterprise to be ‘unquestionable’. However, soon thereafter the wisdom of the teory was questioned by Chief Justice Ranganath Misra who presided over the proceedings before the Supreme Courtfor a review of the Bhopal Case settlement26. Chief Justice Misra in his concurring judgment observed that the issue before the Shriram court was whether the delinquent company came within the ambit of ‘state’ under Article 12 of the Constitution so as to subject to the discipline of Article 21 and proceedings under Article 32 of the Constitution. Thus, according to the Chief Justice, what was said about the departure from the Rylands v Fletcher’s rule was essentially obiter27.

Public Nuisance

A public nuisance may be broadly defined as an unreasonable interference with a general right of the public. Because a public nuisance interferes with a public right, it is not tied to interference with the enjoyment and use of property; and remedies against a public nuisance are, therefore available to every citizen. Section 268 of the Indian Penal Code of 1860 defines the offence of public nuisance. This section also provides that ‘a common nuisance is not excused on the ground that it causes some convenience or advantages’.

Persons who conduct ‘offensive’ trades and thereby pollute the air, or cause loud and continuous noise that affect the health and comfort of those dwelling in the neighborhood are liable to prosecution for causing public nuisance. The penalty for this offence is merely Rs 200, which make it pointless for a citizen to initiate a prosecution under section 268 by complaint to a magistrate28. A much better course would be to utilize the remedies provided in sections 133 to 144 of the Code of Criminal Procedure of 1973. Section 133 provides an independent, speedy and summary remedy against public nuisance. The section empowers a magistrate to pass a ‘conditional order’ for the removal of a public nuisance within a fixed period of time. The magistrate may act on information received from a police report or any other source including a complaint made by a citizen. Although the magistrate’s power to issue a conditional order under section 133 appears discretionary, the Supreme Court has interpreted the language to be mandatory29. Once a magistrate has before him evidence of a public nuisance, he must order removal of the nuisance, within a fixed time30.

The person directed to remove the nuisance (the opposite party) must either comply with the order or show cause against it. Where he or she opposes the order, the court must initiate an inquiry and call on the parties to adduce evidence. Moreover, to assist the inquiry, the magistrate may direct a local investigation to ascertain facts or summon expert witness. If measures are necessary to prevent imminent danger or serious injury to the public, the court may issue an injunction pending an inquiry. When a person fails to appear and show cause, or when the court is satisfied on the evidence adduced that the initial order was proper, the order is made final. Otherwise it is vacated. Failure to comply with a final order within the specified time attracts the penalty provided by section 188 of the Indian Penal Code for disobedience of an order of a public servant. Further, the court may carry out the order and recover costs from the defaulter. A magistrate is also empowered to prohibit repetition or continuance of a public nuisance31.

A magistrate, however, may not pass a final order that exceeds the conditional order in scope. For instance, in Gobind Singh v Shanti Sarup32the conditional order required a baker to demolish within 10 days an oven and chimney that emitted smoke ‘injurious to the health and physical comfort of the people living or working in the proximity.’ In the final order the magistrate went beyond the conditional order and completely prohibited the baker from carrying out his trade. The Supreme Court found the final order far too broad and narrowed its scope to require the baker to demolish the offending oven and chimney within a month. The baker, however, was allowed to practice his trade.

In Municipal council, Ratlam v Vardichand, the Supreme Court for the first time treated an environmental problem differently from an ordinary tort or public nuisance. Environmental pollution in Ratlam affected a large community of poor people and arose from a combination of diffuse causes: private polluter, slack and under- financed enforcement agencies, and haphazard town planning. In view of these peculiarities, the court tailored the existing public nuisance remedy to provide relief.

The Judgment explicitly recognizes the impact of a deteriorating urban environment on the poor, and links the provisions of basic public health facilities to both human rights ad directive principles in the Constitution. The court commends an activist judiciary to compel municipalities to provide proper sanitation and drainage, thereby enabling the poor to live with dignity.

Conclusion

Although the language of Justice Krishna Iyer is flowery in parts, the judgment is notable for the principles it enunciates. Notice the court’s interpretation of the nature of the magistrate’s power under section 133; the court’s response to the municipality’s plea of budgetary constraints’ and the relief granted by the court. To conclude, Common law based tort rules continued continue to operate under Article 372 of the Indian Constitution which ensured the continuance of existing laws33, as in case of  Vellore Citizen’s Welfare Forum v Union of India34, the Supreme Court traced the source of the constitutional and statutory provisions that protect the environment to the ‘inalienable common law right’ of every person to a clean environment. Quoting from Blackstone’s Commentaries on the English law of nuisance published in 1876, the court held that since the Indian legal system was founded on English common law, the right to pollution free environment was a part of the basic jurisprudence of land35.

  1. J.C Galstaun v Dunia Lal Seal (1905) 9 CWN 612, 617 []
  2. AIR 1987 SC 1086 []
  3. Id []
  4. Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.89 []
  5. Id []
  6. An application made between the commencement and end of a suit []
  7. Manohar Lal Chopra v Raj Baja Seth Hiralal AIR 1962 SC 527,532 []
  8. Ram Baj Singh v Babulal AIR 1982 ALL 285 []
  9. Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.91 []
  10. Section 268 of the Indian Penal Code of 1860 []
  11. Section 133-144 of Code of Criminal Procedure of 1973 []
  12. Section 91 of the Code of Civil Procedure of 1908. []
  13. 2000(2) SCALE 582 []
  14. AIR 1986 AP 239 []
  15. The ‘right to commit nuisance complained of’ , refers to a prescriptive right to emit smoke acquired under section 15 of the Indian Easements Act of 1882, or a right acquired by the authority of a statute. A right to cause public nuisance, however, cannot be obtained by prescription. []
  16. [1905] 9 CWN 612 []
  17. [1868]LR 3 HL 330 []
  18. In numerous American suits brought against asbestos manufactured by asbestos workers suffering from lung cancer, several courts reduced the damage award on the theory that a plaintiff habit of smoking cigaretteas had contributed, or could have contributed, to his condition. Some courts dismissed the suit entirely when the plaintiff had been a cigarette smoker. []
  19. AIR 1987 KANT 87 []
  20. For a discussion on ‘strict liability’ and the Rylands’ rule see Jay Laxmi Salts Works (P) Ltd. v State of gujurat 1994 (4) SCC 1 []
  21. M.C Mehta v Union of India AIR 1987 SC 1086 []
  22. Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.106 []
  23. MC Mehta v Union of India AIR 1987 SC 965 []
  24. Supra note 27 []
  25. Union Carbide of India v Union of India Civil Revision No. 26 of 1988, 4th April 1988. This judgment was never implemented in view of the final settlement between parties. []
  26. Union Carbide of India v Union of India (Bhopal Review) AIR 1992 SC 248 []
  27. Id. at 261. Obiter dictum are words of a judgment unnecessary for the decision of the case. []
  28. A complaint may be made under section 190 of the Code of Criminal Procedure of 1973 []
  29. Municipal Council , Ratlam v Vardhichand AIR 1980 SC 1622 []
  30. In urgent cases, a magistrate may direct the immediate removal of nuisance. Supra note 42 at 295. Also see section 145 of the Code of Criminal Procedure of 1973 []
  31. Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.113 []
  32. AIR 1979 SC 143 []
  33. Shyam Divan & Armin Rosencranz, Environmental law and Policy of India, 2nd edition, Oxford Press. p.88 []
  34. AIR 1996 SC 2715 []
  35. Id. at 2722. For a great review of tort law principles see  Jay Laxmi Salt Works (P). Ltd v State of Gujarat 1994 (4) SCC 1 []

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