Environment Law Case: Prakash Mani Sharma et. al. vs. Council of Ministers et. al, NKP (7th semester)

Environment Law Case: Prakash Mani Sharma et. al. vs. Government of Nepal, Secretariat of the Council of Ministers et. al, NKP 2073, Writ No. WF-0005, DN: 9575

Case: Protection of natural resources
Plaintiff: Advocate Prakash Mani Sharma & others
Respondent: Government of Nepal, Secretariat of the Council of Ministers et al.
Decision number: 9575

This case is related to the protection of the right to the clean environment guaranteed by the Constitution of Kingdom of Nepal, 2047.

Facts of the case:
Godawari Marble Industry was allowed to perform mining works for 10 additional years (from 2058 to 2068). The petitioner filed the case stating how this act of Godawari Marble Industry would hamper the extinct flora & fauna & environmental biodiversity of Godawari Phulchowki areas. Hence, the petitioners demanded for such an act to be quashed, stating the matter to be an issue of public interest.

The writ petitioners had the following demands:-

1. The decision to extend the mining operation period of Godavari Marble Industries should be annulled by an order of the Supreme Court.
2. In accordance with Sub-section (1) of Section 27 of the Mines and Minerals Act, 2042 and Rule 43 of the Mines and Minerals Regulations, 2056 issue an order of mandamus in the name of the respondents to immediately suspend the mining operations and in accordance with Section 12(1) of the same Act to immediately declare the Godavari region as a prohibited area for mining operations.
3. An injunction order be issued to Godavari Marble Industries in accordance with the accepted principles of Sub-section (3) of Section 21 of the Mines and Minerals Act, 2042 and the Polluters’ Pay Principle,
4. To conduct a thorough study of the families affected and make necessary arrangements to provide compensation for the losses suffered by the farmers due to the Godavari Marble Industry.
5. To identify the actual damage caused to the environment and biodiversity of the Godavari region and to take all necessary actions to restore the area to its pre-mining condition.

Legal issues:

1. Do the activities, including excavations, being carried out by the Godawari Marble Industry in the Godavari region appear to be in accordance with the provisions of the Constitution and laws of Nepal regarding environmental protection or not?

Different Court’s Decision:
Supreme Court:
Supreme Court upheld the writ petition. The Supreme Court emphasized that biodiversity, forests, water resources, and ecological systems are assets for present and future generations. Natural heritage cannot be sacrificed merely for economic gain. The environmental damage caused by mining outweighed the limited employment and revenue generated by the marble industry. The Godawari area is an exceptionally valuable biodiversity and ecological zone deserving special protection.
When the burden of adverse environmental impacts from development outweighs the benefits they generate, a situation of imbalance arises. In such a situation, development activities should not continue.

1. A continuous mandamus is issued in the name of the respondent ordering that mining activities be stopped immediately and that no such permission be granted to anyone in future.
2. An order has been issued to form a committee comprising representatives of the Ministry of Forests, Ministry of Environment, Department of Mines and Geology, as well as at least two experts in the relevant field to conduct study & provide advice on proper management and operation by declaring Godawari a protected area.
3. The Ministry of Environment and the Ministry of Forests shall submit updated progress reports on the implementation of the order every three months until the work is completed within the time limit.
4. Ordered the immediate closure of mining operations.

Principles established:

1. 1. Such priceless natural heritages like Godawari are to be protected for future generations & should not be scrapped and demolished.
   2. The efforts to improve the area have been in vain. In addition, the quality and storage of marble in the area is not being done properly. Many stones are to be excavated to extract a small amount of marble, and the opposing industry is seen to be operating as a stone industry rather than a marble industry. Since the damage caused to the area is very sensitive from an ecological point of view & is irreparable compared to the limited employment provided and revenue paid by the opposing industry, it does not seem justified in continuing the activities. Its protection is indispensable for the greater good of humans.
   3. Godawari region should be declared a prohibited area for mining activities and mining activities should be stopped immediately and no such permission should be given to anyone in future.

Relevance of the case:
The case shows that environment protection stands before economy & development.