Environment Law Case: Surya Prasad Sharma Dhungel et. al v. Godawari Marble Industries et. al. NKP, (7th semester)

Environment Law Case: Surya Prasad Sharma Dhungel et.al v. Godawari Marble Industries et.al. NKP 2052 BS, P. 168 , DN. 04

Case: Protection of right to life
Plaintiff: Surya Prasad Sharma Dhungel on behalf of LEADERS Inc.
Respondent: Godawari Marble Industries Pvt. Ltd.
Decision number: 04

This case is related to the interrelationship between right to the clean environment & right to life.

Facts of case:
The petitioner, LEADERS Inc. (Legal and Environmental Analysis for Development and Research Services Pvt. Ltd.), is an organization established under the Company Act to conduct research, analysis, and conservation activities related to law and the environment. Surya Prasad Sharma Dhungel is the chairperson of Board of Directors of LEADERS Inc. The petitioner filed a writ petition to protect public health, lives, and property, and to conserve the environment. They claimed that the respondents were causing severe environmental degradation in the Godawari and Phulchowki forest area, an area of immense natural beauty, historical, and religious significance.

The industry’s mining, rock crushing, transportation, and dynamite blasting was releasing excessive dust, smoke, and noise. This activity heavily polluted local rivers, air, and soil, directly harming the health, lives, and professions of residents, workers, and students at the nearby St. Xavier’s School. Furthermore, blasting caused large rocks to fly toward settlements, natural waterspouts were drying up, and the rich biodiversity (including 600 species of butterflies and 259 species of birds) was facing extinction.

Legal issues:

1. Does a registered research organization have the legal standing to file a writ petition regarding environmental degradation under public interest?
2. Does the Right to Life (guaranteed under Article 11(1) of the then Constitution of the Kingdom of Nepal, 2047, which states that no person shall be deprived of their life) encompass the right to a clean and healthy environment?
3. Can the court issue an order to close an industry or regulate pollution when there is an absence of a comprehensive, dedicated statutory environmental protection law in the country?

Different Courts Decision:
Supreme court’s decision:
The Supreme Court noted that a writ of Mandamus requires a petitioner to establish a failure to perform a specific, clearly defined statutory or legal duty. In this case, because the petitioner’s demands were omnibus and failed to pinpoint exactly which public official failed to execute which specific statutory duty, issuing a strict writ of mandamus was deemed inappropriate. Additionally, it ruled that regulatory, preventative, and curative measures must always be exhausted first. Shutting down an industry completely should only be treated as a last resort if environmental protection cannot be achieved through any other mitigative technologies.

The Supreme Court issued a comprehensive Directive Order to the Government of Nepal:

1. To enact and implement a dedicated, comprehensive environmental protection law as soon as possible to clear up legal ambiguities and properly define environmental offenses and penalties.
2. To take immediate steps to bring into force the Mines and Minerals Act 2042, which had been passed by the legislature.
3. To scientifically assess whether the pollution levels caused by Godawari Marble Industries fall within a permissible limit.
4. To issue mandatory directives to ensure the effective environmental conservation of the Godawari area.

Principles established:

1. A clean, healthy environment is part of the totality of life, and the right to a clean, healthy environment is also included within the right to life.
2. The legal duty must be definite and specific for the purpose of the injunction. Therefore, it does not seem appropriate to issue an injunction order based on a summary failure to perform a public duty without clarifying which of the respondents has a legal duty.
3. It is not possible to impose fines or order closure of industries without a law. Even though the current laws are scattered and appear to be insufficient and ineffective, it seems that a law needs to be made to cover all aspects of the environment. For this, it seems necessary to make and implement a separate law.
4. The issues concerning the environment are a matter of public interest and concern. Hence, the petitioner has meaningful relation to the subject matter.

Relevance of case:
The case shows how the right to clean the environment also falls under the right to life as a clean environment leads to living a dignified life.