記：2013年3月9日
P L D 1994 Supreme
Court 693
Present: Nasim Hasan
Shah, C.J.,
Saleem Akhtar
and Manzoor Hussain Sial,
JJ
Ms. SHEHLA ZIA and
others---Petitioners
versus
WAPDA---Respondent
Human
Rights Case No.15-K of 1992, heard on 12th February, 1994.
(Environmental
pollution-Installation of Grid Station/cutting of trees).
環境汚染‐変電所建設と樹木の切断
(a)
Constitution of Pakistan (1973)-
---Arts. 184(3), 9 & 14--- Public interest
litigation---Human rights---Apprehension of citizens of the area against
construction of grid station by authority---Supreme Court, on receipt of letter
from citizens in that respect, found that the letter raised two questions namely
whether any Government agency had a right to endanger the life of citizens by
its actions without the latter’s consent and whether zoning laws vest rights in
citizens which could not be withdrawn or altered without the citizen’s
consent---Citizens, under Art. 9 of the Constitution of Pakistan were entitled
to protection of law from being exposed to hazards of electromagnetic fields or
any other such hazards which may be due to installation and construction of any
grid station, any factory, power station or such like installations---Article
184 of the Constitution, therefore, could be invoked because a large number of
citizens throughout the country could not make such representation and may not
like to make it due to ignorance, poverty and disability---Considering the
gravity of the matter which could involve and affect the life and health of the
citizens at large, notice was issued by Supreme Court to the Authority---trend
of opinion of scientists and scholars was that likelihood of adverse effects of
electromagnetic fields on human health could not be ruled out---Subject being
highly technical, Supreme Court declined to give definite finding particularly
when the experts and technical evidence produced was inconclusive---Supreme
Court observed that in such circumstances the balance should be struck between
the rights of the citizens and also the plans which were executed by the
Authority for the welfare, economic progress and prosperity of the country and
if there were threats of serious damage, effective measures should be taken to
control it and it should not be postponed merely on the ground that the
scientific research and studies were uncertain and not conclusive---With the
consent of both the parties Court appointed Commission to examine the plan and
the proposals/schemes of the Authority in the light of complaint made by the
citizens and submit its report and if necessary to suggest any alteration or
addition which may be economically possible for construction and location of
the grid station---Supreme Court further directed that Government should
establish an Authority or Commission manned by internationally known and
recognized scientists having no bias and prejudice, to members of the
Commission whose opinion or permission should be obtained before any new grid
station was allowed to be constructed---Authority, therefore, was directed by
the Supreme Court that in future, prior to installing or constructing any grid
station and/or transmission line, it would issue public notice in newspapers,
radio and television inviting objections and finalize the plan after
considering the objections, if any, by affording public hearing to the persons
filing such objections---Such procedure was directed to be adopted and
continued till such time the Government constituted any Commission or Authority
as directed by the Court.
In
the present case, citizens having apprehension against construction of a grid
station in residential area sent a letter to the Supreme Court for
consideration as a human rights case raising two questions; namely, whether any
Government agency has a right to endanger the life of citizens by its actions
without the latter’s consent; and secondly, whether zoning laws vest rights in
citizens which cannot be withdrawn or altered without the citizens’ consent. Considering the gravity of the matter
which may involve and affect the life and health of the citizens at large,
notice was issued to the Authority.
[p. 700] A
So
far no definite conclusions have been drawn by the scientists and scholars, but
the trend is in support of the fact that there may be likelihood of adverse
effects of electromagnetic fields on human health. It is for this reason that in all the
developed countries special care is being taken to establish organizations for
carrying on further research on the subject. The studies are, therefore, not certain,
but internationally there seems to be a consensus that the lurking danger which
in an indefinite manner has been found in individual incidents and studies
cannot be ignored. [p. 708] B
In
the present-day controversies where every day new avenues are opened, new
researches are made and new progress is being reported in the electrical
fields, it would be advisable for Authority to employ better resources and
personnel engaged in research and study to keep themselves up-to-date in
scientific and technical knowledge and adopt all such measures which are
necessary for safety from adverse effect of magnetic and electric fields. [p. 709] C
There
is a state of uncertainty and in such a situation the authorities should
observe the rules of prudence and precaution. The rule of prudence is to adopt such
measure which may avert the so-called danger, if it occurs. The rule of precautionary policy is to
first consider the welfare and safety of the human beings and the environment
and then to pick up a policy and execute the plan which is more suited to
obviate the possible danger or make such alternate precautionary measures which
may ensure safety. To stick to a
particular plan on the basis of old studies or inconclusive research cannot be
said to be a policy of prudence and precaution. [p. 709] D
It
is highly technical subject upon which the Court declined to give a definite
finding particularly when the experts and the technical evidence produced is
inconclusive. In these
circumstances the balance should be struck between the rights of the citizens
and also the plans which are executed by the power authorities for welfare,
economic progress and prosperity of the country. [p. 709] E
If
there are threats of serious danger, effective measures should be taken to
control it and it should not be postponed merely on the ground that scientific
research and studies are uncertain and not conclusive. Prevention is better than cure. It is a cautious approach to avert a
catastrophe at the earliest stage.
Pakistan is a developing country.
It cannot afford the researches and studies made in developed countries
on scientific problems. However,
the researches and their conclusions with reference to specific cases are
available, the information and knowledge is at hand and Pakistan should take
benefit out of it. [p. 710] G
It
is reasonable to take preventive and precautionary measures straightaway
instead of maintaining status quo because there is no conclusive finding on the
effect of electromagnetic fields on human life. One should not wait for conclusive
finding as it may take ages to find it out and, therefore, measures should be
taken to avert any possible danger and for that reason one should not go to
scrap the entire scheme but could make such adjustments, alterations or
additions which may ensure safety and security or at least minimize the
possible hazards.
The
issue raised involves the welfare and safety of the citizens at large because
the network of high tension wires is spread throughout the country. One cannot ignore that energy is
essential for present-day life, industry, commerce, and day-to-day
affairs. The more energy is
produced and distributed, the more progress and economic development become
possible. Therefore, a method
should be devised to strike balance between economic progress and prosperity
and to minimize possible hazards. In fact a
policy of sustainable development should be adopted. It will thus require a deep study into
the planning and the methods adopted by authority for construction of the grid
station. Certain modes can be
adopted by which high tension frequency can be decreased. This is purely scientific approach which
has to be dealt with and decided by the technical and scientific persons
involved in it. It is for this
reason that both the parties have agreed that NESPAK should be appointed as a
Commissioner to examine the plan and the proposals/schemes of Authority in the
light of the complaint made by the citizens and submit its report and if
necessary to suggest any alteration or addition which may be economically
possible for constructing a grid station.
The location should also be examined and report submitted at the
earliest possible time.
In
all the developed countries great importance has been given to energy
production. Pakistan’s need is
greater as it is bound to affect the economic development, but in the quest of
economic development one has to adopt such measures which may not create
hazards to life, destroy the environment and pollute the atmosphere. [p. 710] H
While
making such a plan, no public hearing is given to the citizens nor any
opportunity is afforded to the residents who are likely to be affected by the
high tension wires running near their locality. It is only a one-sided affair with the
Authority which prepares and executes its plan. Although Authority and the Government
may have been keeping in mind the likely dangers to the citizens’ health and
property, no due importance is given to seek opinion or objections from the
residents of the locality where the grid station is constructed or from where
the high tension wires run. [p.
711] I
It
would, therefore, be proper for the Government to establish an Authority or
Commission manned by internationally known and recognized scientists having no
bias and prejudice to be members of such Commission whose opinion or permission
should be obtained before any new grid station is allowed to be constructed. Such Commission should also examine the
existing grid stations and the distribution lines from the point of view of
health hazards and environmental pollution. If such a step is taken by the
Government in time, much of the problem in future cane [sic] be avoided. [p. 711] J
Article 9 of the Constitution provides that no person shall be deprived of life
or liberty save in accordance with law.
The word life
is very significant as it covers all facts of human existence. The word life has not been defined in the
Constitution but it does not mean nor can be restricted only to the vegetative
or animal life or mere existence from conception to death. Life includes all such amenities and
facilities which a person born in a free country is entitled to enjoy with
dignity, legally and constitutionally.
A person is entitled to protection of law from being exposed to hazards
of electromagnetic fields or any other such hazards which may be due to
installation and construction of any grid station, any factory, power station
or such like installations. Under
the common law a person whose right of easement, property or health is
adversely affected by any act of omission or commission of a third person in
the neighborhood or at a far-off place, he is entitled to seek an injunction
and also claim damages, but the Constitutional rights are higher than the legal
rights conferred by law be it municipal law or the common law. Such a danger as depicted, the
possibility of which cannot be excluded, is bound to affect a large number of
people who may suffer from it unknowingly because of lack of awareness,
information and education and also because such sufferance is silent and fatal
and most of the people who would be residing near, under or at a dangers
distance of the grid station or such installation do not know that they are
facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked
because a large number of citizens throughout the country cannot make such
representation and may not like to make it due to ignorance, poverty and
disability. Only some conscientious
citizens aware of their rights and the possibility of danger come forward.
[p. 712] K
The
word life
in terms of Article 9 of the Constitution is so wide that the danger and
encroachment complained of would impinge fundamental right of a citizen. In this view of the matter the petition
under Article 184(3) of the Constitution of Pakistan, 1973 is maintainable.
[p. 713] L
The
word life
in the Constitution has not been used in a limited manner. A wide meaning should be given to enable
a man not only to sustain life but to enjoy it. [p. 714] M
Article
14 provides that the dignity of man and subject to law the privacy of home
shall be inviolable. The fundamental
right to preserve and protect the dignity of man under Article 14 is
unparalleled and could be found only in few Constitutions of the world.
[p. 714] N
Where
life of citizens is degraded, the quality of life is adversely affected and
health hazards are created affecting a large number of people the Court in
exercise of its jurisdiction under Article 184(3) of the Constitution may
grant relief to the extent of stopping the functioning of units which create
pollution and environmental degradation.
[p. 715] O
In
these circumstances, before passing any final order, with the consent of both
the parties Court appointed Commissioner to examine and study the scheme,
planning device and technique employed by Authority and report whether there
was any likelihood of any hazard or adverse effect on health of the residents
of the locality. Commissioner might also suggest
variation in the plan for minimizing the alleged danger. Authority was to submit all the plans,
scheme and relevant information to the Commissioner. The citizens will be at liberty to send
to the Commissioner necessary documents and material as they desired. These documents were to reach
Commissioner within two weeks.
Commissioner was authorized to call for such documents or information
from Authority and the citizens which in its opinion was necessary to complete
its report. The report should be
submitted within four weeks from the receipt of the order after which further
proceedings were to be taken.
Authority was further directed that in future prior to installing or
constructing any grid station and/or transmission line, it would issue public
notice in newspapers, radio and television inviting objections and to finalize
the plan after considering the objections, if any, by affording public hearing
to the persons filing objections.
This procedure shall be adopted and continued by Authority till such
time the Government constitutes any Commission or Authority as suggested. [p.
715] P
The News International, September 18, 1991 entitled Technotalk by
Roger Coghill; Newsweek, July 10, 1989; Magazine Nature, Vol. 349 entitled Killing
Field, 14th
February, 1991 entitled E.M.F.---Cancer
Link Still Murky; Electronics World & Wireless World, February 1990;
American Journal of Epidemiology, Vol. 138, p. 467; Villanora
[sic]Law Review, Vol. 36, p. 129 in 1991; Electromagnetic (EM)
Radiation - A Threat to Human Health by Brig. (Rtd.)
Muhammad Yasin; Oxford Dictionary; Black’s Law
Dictionary; Kharak Singh v. State of U.P. AIR 1963 SC
1295; Munn v. Illinois (1876) 94 US 113[?]; Francis Corali
v. Union Territory of Delhi AIR 1981 SC 180; State of Himachal Pradesh and
another v. Umed Ram Sharma and others AIR 1986 SC
847; Rural Litigation and Entitlement Kendra and others v. State of U.P. and
others AIR 1985 SC 652; AIR 1987 SC
359; AIR 1987 SC 2426; AIR 1988 SC 2187; AIR 1989 SC 594; Shri Sachidanand Panddy and another v.
The State of West Bengal and others AIR 1987 SC 1109; M.C. Mehta v. Union of India
AIR 1988 SC 1115 and M.C. Mehta v. Union of India AIR 1988 SC 1037 ref.
(b) International agreement---
----Value---International
agreement between the nations if signed by any country is always subject to
rectification, but same can be enforced as a law only when legislation is made
by the country through its Legislature---Without framing a law in terms of the
international agreement the covenants of such agreement cannot be implemented
as a law nor they bind down any party---Such agreement, however, has a
persuasive value and command respect.
[p. 710] F
(c) Constitution of Pakistan (1973) ---
----Art. 9---Word
life
in Art. 9 of the Constitution covers all facets of human existence.
Article 9
of the Constitution provides that no person shall be deprived of life or
liberty save in accordance with law.
The word life
is very significant as it covers all facets of human existence the word life
has not been defined in the Constitution but it does not mean nor can it be
restricted only to the vegetative or animal life or mere existence from
conception to death. Life includes
all such amenities and facilities which a person born in a free country is
entitled to enjoy with dignity legally and constitutionally. [p. 712] K
The
word life in the Constitution has not been used in a limited manner. A wide meaning should be given to enable
a man not only to sustain life but to enjoy it. [p. 714] M
Oxford
Dictionary; Black’s Law Dictionary; Kharak Singh v.
State of U.P. AIR 1963 SC 1295; Munn v. Illinois (1876) 94 US 113 at page 142;
Francis Corali v. Union Territory of Delhi AIR 1981
SC 746; Olga Tellis and others v. Bombay Municipal
Corporation AIR 1986 SC 180; State of Himachal Pradesh and another v. Umed Ram Sharma and others AIR 1986 SC 847; Rural Litigation
and Entitlement Kendra and other v. State of U.P. and others AIR 1985 SC 652;
AIR 1987 SC 359 AIR 1987 SC 2426; AIR 1988 SC 2187; AIR Bengal and others AIR
1987 SC 1109; M.C. Mehta v. Union of India AIR 1988 SC 1115 and M.C. Mehta v.
Union of India AIR 1988 SCC 1037 ref.
(d) Constitution of Pakistan (1973) ---
---Art. 14---Fundamental
right to preserve and protect the dignity of man under Art. 14 is
unparalleled and could be found only in few Constitutions of the world.
Article
14 provides that the dignity of man and subject to law the privacy of home
shall be inviolable. The
fundamental right to preserve and protect the dignity of man under
Article 14 is unparalleled and could be found only in few Constitutions of
the world. [p. 714] N
(e) Constitution of Pakistan (1973) ---
---Art. 184(3)
---Public interest litigation---Pollution and environmental degradation---Where
life of citizens is degraded, the quality of life is adversely affected and health
hazards are created affecting a large number of people. Supreme Court in exercise of its
jurisdiction under Art. 184(3) of the Constitution of Pakistan may grant
relief to the extent of stopping the functioning of such units which create
pollution and environmental degradation.
[p. 715] O
Dr. Parvez Hasan for Petitioners
Tariq
Malik, Project Director, WAPDA for Respondent.
Date
of hearing: 12th February, 1994.
ORDER
SALEEM
AKHTAR, J. ---Four residents of Street No.35, F-6/1, Islamabad protested to
WAPDA against construction of a grid station in F-6/1, Islamabad. A letter to this effect was written to
the Chairman on 15-1-1992 conveying the complaint and apprehensions of the
residents of the area in respect of construction of a grid station allegedly
located in the green-belt of a residential locality. They pointed out that the
electromagnetic field by the presence of the high voltage transmission lines at
the grid station would pose a serious health hazard to the residents of the
area particularly the children,
the infirm and the Dhobi-ghat families that live in
the immediate vicinity. The
presence of electrical installations and transmission lines would also be
highly dangerous to the citizens particularly the children who play outside in
the area. It would damage the
greenbelt and affect the environment.
It was also alleged that it violates the principles of planning in
Islamabad where the green belts are considered an essential component of the
city for environmental and aesthetic reasons. They also referred to the various
attempts made by them from July 1991 protesting about the construction of the
grid station, but no satisfactory step has been taken. This letter was sent to this Court by
Dr. Tariq Banuri of LUCN for consideration as a
human rights case raising two questions; namely, whether any Government agency
has a right to endanger the life of citizens by its actions without the
latter’s consent; and secondly, whether zoning laws vest rights in citizens
which cannot be withdrawn or altered without the citizens’ consent. Considering the gravity of the matter
which may involve and affect the life and health of the citizens at large,
notice was issued to the respondents who appeared and explained that the site
of grid station was not designated as open space/green area as stated in the
layout plan of the area. It was
further stated that the site has been earmarked in an incidental space which
was previously left unutilized along the bank of nallah
and was not designated as open space or green area. It is about 6-10 feet in depression from
the houses located in the vicinity of the grid station site. The grid station site starts at least 40
feet away from the residences in the area and construction of grid station does
not obstruct the view of the residents.
It was further stated that the fear of health hazard due to vicinity of
high voltage of 132 K.V. transmission lines and grid station is totally
unfounded. Similar 132 KV grid
stations have been established in the densely populated area of Rawalpindi,
Lahore, Multan and Faisalabad, but no such health hazard has been reported. It was also claimed that not a single
complaint has been received even from the people working in these grid stations
and living right in the premises of the grid stations. The installations are made in such a way
that the safety of personnel and property is ensured. It was further stated that
electromagnetic effects of extra high voltage lines of voltage above 5000 KV on
the human and animal lives and vegetation is under study in the developed
countries, but the reports of results of such studies are controversial. In support of the contentions, CDA
submitted extract from the opinion of Dr. M. Mohsin
Mubarak, Director, Health Services, which reads as follows:---
The
fears of the residents about the effects of high voltage transmission lines are
also not considered dangerous for the nearby residents. Even a small electric point with 220
volts current or a S___ Gas installation in the kitchen can prove to be
extremely dangerous if specific precautions are not undertaken and
maintained. The high tension wires
are not likely to harm the residents if due protection criteria are properly
planned and executed. The concept
of dangerous and offensive trades and civil defence
is not that the candle should not be lit.
A candle must be lit to remove darkness and made the things more
productive but care must also be taken not to let the candle burn every thing around.
The
comments of Government of Pakistan, Ministry of Water and Power recommending
the construction of grid station were also filed in which the following points
were noted on the effect of electrical light and wiring on health of human
beings:---
(c) Although the studies of
effects of electric lines and wiring on the health of human beings are being
carried out by different agencies/institutions of the world, there are no established
and conclusive findings
about any serious effects of electric lines/wiring on the health of human
beings.
(d) The effects of electricity
can be considered on account of its two fields namely the electric field and
the magnetic field and in this regard, extracts of section 8.11 and 8.13
of Transmission Line Reference Book of Electric Power Research Institute,
California, USA on Biological Effects of Electric and Magnetic fields on people
and animals are enclosed which indicate that there is no restriction on
permissible duration of working if the electric field intensity is up to 5KV/m
whereas in the case under consideration the elect field intensity would
certainly be lesser than O.KV/m which value as indicated in the said extract is
for a location at a distance of 20m from a 525 KV Line.
The
nearest present live conductor is of only 132KV and that too would be at a
distance of more than 20m from the nearest house’s boundary wall as shown in
the enclosed map. This clearly
shows that the nearby houses fall in a quite safe zone. As regards the magnetic fields, the
intensity of the magnetic field at ground level close to transmission line
varies from 0.1 to 0.5 gauss which values are less than those in industrial
environments especially in proximity to low voltage conductors carrying
currents as mentioned in the above extracts. In view of the above details, there
should be no concern about the health of residents of nearby houses.
(e) The apprehension that the
grid station would generate and transmit excessive heat to houses is unfounded
as the main equipment i.e. power transformers are properly cooled by circulation
of oil inside transformer tanks and by means of cooling fans.
These
opinions of the WAPDA and CDA are based on Transmission lines. Reference Book, 345 KV and above/2nd
Edition, extract of which had been filed and relevant parts of which are reproduced
as follows:---
Although health complaints by substation workers in the USSR were reported
(40.41), medical examination of linemen in the USA (38.39), in Sweden (19) and
in Canada (56.58), failed to find health problems ascribable to electric fields. As a result of unclear
findings and research in progress, no rules for electric-field intensity inside
and outside the transmission corridor have been universally established. In some cases, design rules have been
established to allow construction of EHV transmission lines to proceed with the
maximum possible guaranteed protection of people from possible health risks.
Many
studies of magnetic-field effects on laboratory items have been performed. A good general review and discussion
offered by Sheppard and Eisenbud (59). Magnetic fields have been reported to
affect blood composition, growth, behaviour, mune [sic] systems and neural functions. However, at present there is
a lack of conclusive evidence,
and a very confusing picture results from the wide variation in field
strengths, frequency, exposure durations used in different studies.
WAPDA
also submitted extracts from A.B.B. literature regarding insulation and
coordination/standard clearances data based on LEC specification in which
minimum clearance for 500 KV equipments and
installation has been given 1,100 ft. and 1,300 ft. for phase-to-phase air
clearance and phase-to-phase earth air clearance.
2. The
petitioners were also asked to furnish material in support of their claim. They have filed news clippings from
magazines, research articles, and opinions of scientists to show that
electromagnetic radiation is the wave produced by magnetism of any electrical
current and thus electromagnetic fields can affect human beings. The first item is a clipping from the
magazine The News International, September 18, 1991, entitled Technotalk. It
refers to a book Electropollution How to protect yourself against it, by
Roger Coghill. It has been observed
that now researchers are asking whether it is more than coincidence that the
increase in disease like cancer, ME, multiple sclerosis, hyperactivity in
children, allergies and even AIDS have occurred alongside enormous growth in
the production and use of electricity.
It further states that the first warning sign came from the USA in 1979
when Dr. Nancy Wertheimer and Dr. Ed Leeper found that children
living next to overhead electricity lines were more likely to develop
leukaemia. Since then, further studies
have shown links with brain tumours, depression and suicide.
One
US researcher found that electrical utility workers were 13 times more likely
to develop brain tumor than the rest of the pollution [sic]. A midlands doctor discovered a higher
than average rate of depression and suicide in people living near electric
power cables.
Photo
copy of an article published in Newsweek, July 10, 1989, entitled An
Electromagnetic Storm has been filed.
In this article the apprehensions and problems considered by the
scientists have been discussed and reference has been made to the researches in
this field in which, finally it was concluded as follows:--
The
question is whether we know enough to embark on a complete overhaul of the
electronic environment. Avoiding
electric blankets and sitting at arm’s length from one’s VDT screen (their
fields fall of sharply after about two feet) seem only prudent. But drastic steps to reduce people’s
involuntary exposures might prove futile.
For while research clearly demonstrates that electromagnetic fields can
affect such process as bone growth, communication among brain cells, even the
activity of white blood cells, it also shows that weak fields sometimes have
greater effects than strong ones.
Only through painstaking study will anyone begins to know where the real
danger lies. On one point, at
least, Brodeur and many of those he criticizes seem to agree: we’re not quite sure what
we’re up against, and we need urgently to find out.
3. An
article published in the magazine Nature,
Volume 349, 14 February 1991 entitled EMF - Cancer Link Still Murky refers to a
study made by epidemiologist John Peters from the University of Southern
California, who released his preliminary results from a case control study of
232 young leukaemia victims. The
results implied that leukaemia reasons are co-related to electromagnetic field
(EMF) exposure and that they are not dependent on how exposure is estimated.
4. In
an article from Electronics World & Wireless World, February 1990 entitled
Killing Fields, the author has discussed and produced a large number of case
studies from which it was observed that at least there was a two-fold increase
in adult leukaemia link to fields from wires near human beings. It was further observed that if one accepts
a causal link to power line electromagnetic fields as much as 10-15% of
childhood cancer cases might be attributed to such fields. There has been a growing concern and
research in the US and seven American States have adopted rights of way, but no
such step has been taken in UK. The
case studies also showed that:--
Among recent residential studies, GP
Dr. Stephen Perry published correlations between the magnetic-field
exposure of people living in multi-storey blocks (of
nine storey or more). Wolverhampton
with the incidence of heart disease and depression. Magnetic field strengths measured in all
43 blocks with a single rising cable showed very significantly higher readings
(p 0.0002) in those apartments categorized as near the cable, averaging 0.315 T
(highest: 0.377 T) against 0.161 T (lowest: 0.148 T) in the distant’
apartments. In line with these
measures, significantly more myocardial infraction, hypertension, isshaemic heart disease and depression was reported in
those living near the cable.
＜BEMSJ注：磁界の単位に“μ”が抜けていると思われる。特殊文字なので抜けた？＞
Other
articles in the same magazine were entitled Killing Fields, the Epidemiological
Evidence and Killing Fields, the Politics in which suggestion was made that
until results of this research become available more torium
[sic] should be placed on all new buildings or routing of power lines which
causes 50 Hz fields in houses to exceed every cautiously set limit.
In an information sent by Mark Chernaik,
Environmental Law US to Brig. (Rtd.) Muhammad Yasin, Projects Coordinator, Sustainable Development Policy
Institute (SDPI), it is stated that when electric current passes through high voltage
transmission lines (HVTLs), it produces electric and magnetic fields. Although both can affect biological
systems, the greatest concern is the health impacts of magnetic fields. A magnetic field can be either static or
fluctuating Magnetic field from HVTLs fluctuates because the electric currents
within HVTLs are alternating currents (AC) which reverse direction 50 to 60 times
per second (50 to 60 Hz). Magnetic
fields pass nearly unimpeded through building materials and earth. It refers to four recent epidemiological
studies which show that the people exposed to relatively strong static and
fluctuating magnetic fields have higher rates of leukaemia as compared to general
population. It gives the figures
that the rate of leukaemia was higher in over 170,000 children who lived within
300 meters of HVTLs in Sweden from 1960-85. Children who were exposed to fluctuating
magnetic fields greater than 0.20microT were 2.7 times more likely to have
contracted leukaemia and children who were exposed to greater than 0.3microT
were 3.08 times more likely to have contracted leukaemia than other children
(Reference: Feychting, M. & Anlbon. A (October
1993) Magnetic Fields and Cancer in Children Residing in Swedish Higher Voltage
Power Lines American Journal of
Epidemiology, Vol. 138, p. 467). It
also refers to an article Childhood Cancer in Relation to Modified Residential
Wire Code Environmental Health Perspectives, Vol. 101, pp. 76-80 in which
studies were carried out in respect of cancer in children living in the Danver area of US and it was reported that children living
in homes within 20 meters of HVTLs or primary distribution lines were 1.9 times
more likely to have contracted cancer in general and 2.8 times more likely to
have contracted leukaemia in particular than children living in homes with
relatively moderate or low exposure to magnetic fields. Likewise reference has been made to the
study relating to leukaemia in workers who maintain and repair telephone lines
in US and the rate of cancer in Norwegian electrical workers who were exposed
to magnetic fields. It also states that power company challenged the existence
of link between leukaemia and exposure to magnetic fields on the basis that
there is no biological mechanism which can explain the link. It has been stated that there
is a plausible (but still unproven) biological explanation for the link between
leukaemia and exposure to magnetic fields.
It also suggests methods to reduce magnetic fields from HVTLs.
5. Dr. Tariq
Banuri has also made a statement and given his
opinion as an expert on Environmental Economics and a student of Social
Management. According to him:--
(a) The earlier concensus [sic] on the limited degree of the harmful
effects of radiation does not exist.
While at this point the expert evidence is not conclusive, regarding its
impact the burden of proof has shifted from individuals to the organization. As a result, Courts in the US have
recommended more stringent safety standards.
(b) Given the absence of
proper safeguards and standards in Pakistan’s research, it is unlikely that
studies done in Pakistan would help decide the issue. Perforce, we would have to rely on the
results of cross-country studies, or on those of studies conducted in
industrialized countries. We should
not regard the results in other countries as inappropriate for our
purposes. These are the only
results we are likely to use in the foreseeable future.
(c) Even in the latter
countries, until such time as the matter gets resolved, the profession is
likely to place greater weight on the critical and more recent studies than
would be warranted by their frequency or number. In other words, a single study showing
additional harmful consequences has more weight than hundreds of studies that
argue that there is no change.
According
to him precautionary principles should be adopted and there should be a balance
in existing situation, developments and the environmental hazards.
6. The
petitioners have also relied on an article entitled Regulatory and Judicial
Responses to the Possibility of Biological Hazards from Electromagnetic Fields
generated by Power Lines by Sherry Young, Assistant Professor of Law, Claude W.
Pettit, College of Law Ohio Northern University, B.A. Michingan
[sic] State University, Haward [sic] Law School
published in Villanora [sic] Law Review, Vol. 36, p.
129 in 1991. It is an exhaustive
and informative article which deals with the current state of knowledge about
the biological effect of exposure to electromagnetic fields, the responses of
the legal system to the possibility of biological hazards, evaluations and the
proposals for regulatory response.
It refers to various studies made in USA, Sweden and Canada about ELF
exposure and cancer in children and adults. After referring to the various studies
and the results arrived at the author has summed up as follows:--
While the implications of these studies justify additional research, it would
be both difficult and futile to base any significant regulation of electric
transmission and distribution systems on rather limited data currently
available. At best, various
experiments have demonstrated that particular cells or animals have shown
particular responses to exposure to ELF fields of particular frequencies and
intensities for specific durations.
The mechanism by which those effects occur are not known. It is also unknown whether the changes
that have been observed are in fact harmful to the organisms involved, whether
they would be harmful if they occurred in humans, or whether exposure to ELF
field results in numerous biological effects that in fact cancels each other
out. Additionally, it is unknown
whether humans or other animals are able to adapt to exposure, either
immediately or after some threshold period of adjustment. It is know that in some of the
experiments demonstrating biological effects, the effects disappeared upon
increased, as well as decreased, exposure.
Therefore, it is impossible to conclude that any given level of exposure
will be harmless: no matter how precisely its frequency, intensity and duration
are regulated: nor can it be established that any given level of exposure is
definitely harmful. Consequently,
it is impossible at this time to prescribe alternations in electric
transmission and distribution systems that are likely to significantly reduce
the risks, if any, of exposure to ELF fields.
At
present, the scientific evidence regarding the possibility of adverse biological
effects from exposure to power-frequency fields, as well as the possibility of
reducing or eliminating such effects, is inconclusive. The remaining question is how the legal
system, including both the judiciary and the various regulatory agencies, should
respond to this scientific uncertainty.
The
research project known as the New York Power Line Projects (HYPLP) [sic] was
established to investigate independently and without any bias on several
projects particularly for considering the implication of Wythmer
and Leeper study which suggested association between proximity to power lines
and childhood leukaemia. The author
has summarized the conclusion of this project as follows:--
The
panel concluded that they had documented biological effects of electric and
magnetic fields and that several of those findings were worthy of further
consideration because of their possible implications for human health. The panel was not able, however, to
identify any adverse health effects.
Although the replication of the Wyrthemer and
Leeper study basically confirmed the study’s finding of an association between
power line configurations and childhood cancer, the panel was unable to offer
any recommendation based on this and other epidemiological studies because of
methodological difficulties with quantifying magnetic field exposure levels and
the lack of any established casual [sic] relationship between weak magnetic
fields and cancer. Finally the
panel recommended further research in the following areas: (1) The possible association between
cancer and exposure to magnetic fields, and effects of exposure on learning
ability. (2) The possible existence
of thresholds for biological effects; and (2) methods of power delivery for use
that would reduce magnetic fields.
After
this report staff task force was appointed by the Chairman of the New York
Public Service Commission to evaluate the report of the NYPLP and develop
recommendations for consideration by it.
The task force noted that the researchers had not determined whether the
effects that had been established would persist at lower field intensities or
whether there was threshold below which the effects disappeared. Nonetheless the task force found that
the results were disturbing enough to require additional epidemiological
studies preferably in New York. The
recommendations made by NYPLP were endorsed by the task force.
7. Dr. Mirza
Arshad Ali Baig who was at that time Director-General
of Planning and Development and Industrialization of Pakistan Council of
Scientific and Industrial Research to a query made by Dr. Tariq Banuri has given his opinion as follows:--
The information that is so far
available, with me suggests that transmission lines give rise to magnetic
fields which have extremely high intensity compared with naturally occurring
fields. This is particularly the
case with sources operating at power frequencies of 50 or 60 Hz were magnetic
fields of very high magnitude compared with the natural are common. Any one near the transmission lines is,
therefore, exposed to excessive magnetic field.
Magnetic
fields give rise to induced electric fields and currents which in turn interact
with the blood flow as well as living tissues. Such tissues which are vulnerable to
electrical excitation e.g. visio-sensory stimulation
that generate magneto-phosphenes are likely to be
affected on long term exposure and under high intensity of the field.
So
far there is no direct evidence of effects of exposure to magnetic fields but
there are indications that an excess in the incidence of cancer among children
and adults is associated with very weak (0.1 to 1microT) 50 or 60 Hz magnetic
flux densities such as those directly under high tension wires, welding acres,
induction heaters and a number of home appliances. The ill-effects have just started
surfacing up because of availability of some health facilities and institutions
where ailments of many kinds are being reported. In Pakistan these effects may easily be
attributed to anything other than scientific. Instead of waiting for abnormal cases to
be reported in our situation it is perhaps, imperative that we go for
sustainable development and discourage installation of transmission lines over
the residential areas anywhere.
The
opinion of Dr. Muhammad Hanif, Officer In
charge, Environmental Research and Pollution Control Section of Pakistan
Council of Scientific and Industrial Research, Lahore dated 10-7-1991, after
referring to various studies and research made in USA, concluded as follows:--
"According
to my conclusion, I draw from the literature so far read by me, there is going
to be proved ill-health effects on human beings associated especially with the
high voltage transmission. However,
for a while setting aside the question of the ill-health effects, of high
energy concentrated electrical waves, there remains a constant concern about
the safety factor. The high
structures especially to be installed for the transmission of electricity and
the high voltage current passing though [sic] these transmission lines continue
to pose constant danger to the people and the property of the area under their
direct hit in case, these structures collapse due to any cause."
A
documented research paper entitled Electromagnetic (EM) Radiation--A Threat to
Human Health, by Brig. (Rtd.) Muhammad Yasin of Sustain Development Policy Institute has also been
relied upon by the petitioners. The
author has referred to some reported research conclusions as follows:--
"(i) The
risk of dying from acute myliod [sic] leukaemia is
increased by 2.6 if you work in electrical occupation especially if you are a
telecommunication engineer or radio amateur [sic].
(ii) Service personnel
exposed to non-ionizing radiation are seven times more than the unexposed
colleagues likely to develop cancer of the blood forming organs and lymphatic
tissues and are more likely to develop thyroid tumours.
(iii) 10 to 15
percent of all childhood cancer cases might be attributable for power frequency
fields found in homes (23/115 V 50 - 60 Hz). The risk of childhood cancer more than
double in homes where the average 60 Hz magnetic field is over 300nanoT."
He
has also referred to studies in Sweden on effect of high tension power lines on
the health of children and detected higher risk of leukaemia. This study also indicated that prolonged
exposure to electromagnetic fields has links of leukaemia in adults. His conclusion and recommendations are
to create awareness, to adopt safety standards prescribed by developed
countries and undertake studies and research.
8. From
the afore-stated material produced on record which contains up-to-date studies
and research it seems that so far no definite conclusions have been drawn by
the scientist and scholars, but the trend is in support of the fact that there
may be likelihood of adverse effects of electromagnetic fields on human
health. It is for this reason that
in all the developed countries special care is being taken to establish
organizations for carrying on further research on the subject. The studies are, therefore, not certain,
but internationally there seems to be a consensus that the lurking danger which
in an indefinite manner has been found in individual incidents and studies
cannot be ignored. WAPDA on the
other hand insists on executing the plan which according to it is completely
safe and risk free. The material
placed by WAPDA is based on studies carried out two decades back. The other statement is based on their
personal observation of their workers who are working in grid stations and
further than from the locality no such complaint has been made as in the
present case. The research and
opinion relied upon by WAPDA is not the best one nor from authentic sources
because they are merely relying upon old opinions. In the present-day controversies where
every day new avenues are opened new researches are made and new progress is
being reported in the electrical fields, it would be advisable for WAPDA to
employ better resources and personnel engaged in research and study to keep
themselves up-to-date in scientific and technical knowledge and adopt all such
measures which are necessary for safety from adverse effect of magnetic and
electric fields. On the other
hand the materials placed by the petitioners are the latest researches carried
out to examine the magnetic fields effect on health and also about the possible
dangers that may be caused to human beings. In the absence of any definite
conclusion that electromagnetic fields do not cause childhood leukaemia and
adult cancer and in the presence of studies the subject requires further
research and the conclusions drawn earlier in favor of the power company are
[sic] doubtful-safest course seems to be to adopt a method by which danger, if
any, may be avoided. At this stage
it is not possible to give a definite finding on the claims of either
side. There is a state of
uncertainty and in such a situation the authorities should observe the rules of
prudence and precaution. The rule
of prudence is to adopt such measures which may avert the so-called danger, if
it occurs. The rule of
precautionary policy is to first consider the welfare and safety of the human
beings and the environment and then to pick up a policy and execute the plan
which is more suited to obviate the possible dangers of make such alternate
precautionary measures which may ensure safety. To stick to a particular plan on the
basis of old studies or inconclusive research cannot be said to be a policy of
prudence and precaution. There are
instances in American Studies that the power authorities have been asked to
alter and would their program and planning in such a way that the intensity and
the velocity is kept at the lowest level. It is highly technical subject upon which
the Court would not like to give a definite finding particularly when the
experts and technical evidence produced is inconclusive. In these circumstances the
balance should be struck between the rights of the citizens and also the plans
which are executed by the power authorities for welfare, economic progress and
prosperity of the country.
9. Dr.
Parvez
Hasan, learned counsel for the petitioners contended that the Rio
Declaration on Environment and Development has recommended the precautionary
approach contained in principle No. 15, which reads as follows:--
Principle
15.--In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are threats of serious or
irreversible damage lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental
degradation.
The
concern for protecting environment was first internationally recognized when
the declaration of United Nations Conference on the Human Environment was
adopted at the Stockholm on 16-6-1972.
Thereafter it had taken two decades to create awareness and consensus
among the countries when in 1992 Rio Declaration was adopted. Pakistan is a signatory to this
declaration and according to Dr. Perwaiz [sic]Hasan
although it has not been ratified or enacted, the principle so adopted has its
own sanctity and it should be implemented, if not in letter, at least in
spirit. An international agreement
between the nations if signed by any country is always subject to ratification,
but it can be enforced as a law only when legislation is made by the country
through its legislature. Without
framing a law in terms of the international agreement the covenants of such
agreement cannot be implemented as a law nor do they bind down any party. This is the legal position of such
documents, but the fact remains that they have a persuasive value and command
respect. The Rio Declaration is the
product of hectic discussion among the leaders of the nations of the world and
it was after negotiations between the developed and the developing countries
that an almost consensus declaration had been sorted out. Environment is an international problem
having no frontiers creating transboundary effects. In this field every nation has to
cooperate and contribute and for this reason the Rio Declaration would serve as
a great binding force and to create discipline among the nations while dealing
with environmental problems. Coming
back to the present subject, it would not be out of place to mention that
Principle No. 15 envisages rule of precaution and prudence. According to it if there are threats of
serious damage, effective measures should be taken to control it and it should
not be postponed merely on the ground that scientific research and studies are
uncertain and not conclusive. It
enshrines the principle that prevention is better than cure. It is a cautious approach to avert a
catastrophe at the earliest stage. Pakistan
is a developing country. It cannot
afford the researches and studies made in developed countries on scientific
problems particularly the subject at hand.
However, the researches and their conclusions with reference to specific
cases are available, the information and knowledge is at hand and we should
take benefit out of it. In this
background if we consider the problem faced by us in this case, it seems
reasonable to take preventive and precautionary measures straightaway instead
of maintaining status quo because there is no conclusion finding on the effect
of electromagnetic fields on human life.
One should not wait for conclusive finding as it may take ages to find
it out and, therefore, measures should be taken to avert any possible danger and
for that reason one should not go to scrap the entire scheme but could make
such adjustments, alterations or additions which may ensure safety and security
or at least minimize the possible hazards.
10. The
issue raised in this petition involves the welfare and safety of the citizens
at large because the network of high tension wires is spread throughout the
country. One cannot ignore that
energy is essential for present-day life, industry, commerce, and day-to-day
affairs. The more energy is
produced and distributed, the more progress and economic development become
possible. Therefore, a method
should be devised to strike balance between economic progress and prosperity
and to minimize possible hazards.
In fact a policy of sustainable development should be adopted. It will thus require a deep study into
the planning and the methods adopted by WAPDA for construction of the grid
station. The studies in USA referred
to above have suggested that certain modes can be adopted by which high tension
frequency can be decreased. This is
purely scientific approach which has to be dealt with and decided by the
technical and scientific persons involved in it. It is for this reason that
both the parties have agreed that NESPAK should be appointed as a Commissioner
to examine the plan made by the petitioners and submit its report and if
necessary to suggest any alteration or addition which may be economically
possible for constructing a grid station.
The location should also be examined and report submitted at the
earliest possible time.
11. At
this stage it may be pointed out that in all the developed countries great
importance has been given to energy production. Our need is greater as it is bound to
affect our economic development, but in the quest of economic development one
has to adopt such measures which may not create hazards to life, destroy the
environment and pollute the atmosphere.
From the comments filed by WAPDA it seems that they in consultation with
the Ministry of Water and Power have prepared a plan for constructing grid
station for distribution of power.
While making such a plan, no public hearing is given to the citizens nor
any opportunity is afforded to the residents who are likely to be affected by
the high tension wires running near their locality. It is only a one-sided affair with the
Authority which prepares and executes its plan. Although WAPDA and the Government may
have been keeping in mind the likely dangers to the citizen’s health and
property, no due importance is given to seek opinion or objections from the
residents of the locality where the grid station is constructed or from where
the high tension wires run. In USA
Public Service Commission has been appointed for the purposes of regulating and
formulating the plans and permission for establishing a grid station. It hears objections and decides them
before giving permission to construct such a power station. No such procedure has been adopted in
our country. Being a developing
country we will need many such grid stations and lines for transmission of
power. It would, therefore, be
proper for the Government to establish an Authority or Commission manned by
internationally known and recognized scientists having no bias and prejudice to
be members of such Commission whose opinion or permission should be obtained
before any new grid station is allowed to be constructed. Such Commission should also examine the
existing grid stations and the distribution lines from the point of view of
health hazards and environmental pollution. If such a step is taken by the
Government in time, much of the problem in future can be avoided.
12. The
learned counsel for the respondent has raised the objection that the facts of
the case do not justify intervention under Article 184 of the Constitution. The main thrust was that the grid
station and the transmission line are being constructed after a proper study of
the problem taking into consideration the risk factors, the economic factors
and also necessity and requirement in a particular area. It is after due consideration that
planning is made and is being executed according to rules. After taking such steps possibility of
health hazard is ruled out and there is no question of affecting property and
health of a number of citizens or any fundamental right is violated which may
warrant interference under Article 184.
So far the first part of the contention regarding health hazards is
concerned, sufficient discussion has been made in the earlier part of the
judgment and need not be repeated.
So far the fundamental rights are concerned, one has not to go too far
to find the reply.
Article 9 of the Constitution provides that no person shall be deprived of life
or liberty save in accordance with the law. The word life is very significant as it
covers all facts of human existence.
The word life has not been defined in the Constitution but it does not
mean nor can it be restricted only to the vegetative or animal life or mere
existence from conception to death.
Life includes all such amenities and facilities which a person born in a
free country is entitled to enjoy with dignity, legally and
constitutionally. For the purposes
of present controversy suffice it to say that a person is entitled to protection
of law from being exposed to hazards of electromagnetic fields or any other
such hazards which may be due to installation and construction of any grid
station, any factory, power station or such like installations. Under the common law a person whose right
of easement, property or health is adversely affected by any act of omission or
commission of a third person in the neighborhood or at a far off place, he is
entitled to seek an injunction and also claim damages, but the Constitutional
rights are higher than the legal rights conferred by law be it municipal law or
the common law. Such a danger as
depicted, the possibility of which cannot be excluded, is bound to affect a
large number of people who may suffer from it unknowingly because of lack of
awareness, information and education and also because such sufferance is silent
and fatal and most of the people who would be residing near, under or at a
dangerous distance of the grid station or such installation do not know that
they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be
invoked because a large number of citizens throughout the country cannot make
such representation and may not like to make it due to ignorance, poverty and
disability. Only some conscientious
citizens aware of their rights and the possibility of danger come forward and
this has happened so in the present case.
13. According
to Oxford dictionary, life means state of all functional activity and continual
change peculiar to organized matter and specially to the portion of it
constituting an animal or plant before death and animate existence.
In
Black’s Law Dictionary, life means that state of animals, humans, and plants or
of an organized being, in which its natural functions and motions are
performed, or in which its organs are capable of performing their
functions. The interval between
birth and death. The sum of the
forces by which death is resisted. Life protected by the Federal Constitution
includes all personal rights and their enjoyment of the faculties, acquiring
useful knowledge, the right to marry, establish a home and bring up children,
freedom of worship, conscience, contract, occupation, speech, assembly and
press.
The
Constitutional Law in America provides an extensive and wide meaning to the
word life which includes all such rights which are necessary and essential for
leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge,
to establish home, the freedoms as contemplated by the Constitution, the
personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his
personal rights and to be protected from encroachments on such personal rights,
freedom and liberties. Any action
taken which may create hazards of life will be encroaching upon the personal
rights of a citizen to enjoy the life according to law. In the present case this is the
complaint the petitioners have made.
In our view the word life constitutionally is so wide that the danger
and encroachment complained of would impinge fundamental right of a
citizen. In this view of the matter
the petition is maintainable.
14. Dr.
Pervez [sic] Hasan, learned counsel has referred to various judgments of the
Indian Supreme Court in which the term life has been explained with reference
to public interest litigation. In Kharak Singh v. State of UP (AIR 1963 SC 1295) for
interpreting the word life used in Article 21 of the Indian Constitution
reliance was placed on the judgment of Field, J. in Munn v. Ilinois
[sic] (1876) 94 US 113 at page 142 where it was observed that life means
not merely the right to the continuance of a person’s animal existence but a
right to the possession of each of his organs--his arms and legs etc. In Francis Corali
v. Union Territory or Delhi (AIR 1981 SC 746) Bhagvati,
J. observed that right to life includes right to live with human dignity and
all that goes along with it, namely, the bare necessities of life such as
adequate nuition [sic], clothing and shelter and
facilities for reading and writing in diverse from [sic]. Same view has been expressed in Olga Tellis and others v. Bombay Municipal Corporation (AIR 1986
SC 180) and State of Himachal Pradesh and another v. Umed
Ram Sharma and others (AIR 1986 SC 847).
In the first case right to life under the Constitution was held to mean
right to livelihood. In the latter
case the definition has been extended to include the quality of life and not
mere physical existence. It was
observed that for residents of hilly areas, access to road is access to life
itself. Thus, apart from the wide
meaning given by US Courts, the Indian Supreme Court seems to give a wider
meaning which includes the quality of life, adequate nutrition, clothing and
shelter and cannot be restricted merely to physical existence. The word life in the Constitution has
not been used in a limited manner.
A wide meaning should be given to enable a man not only to sustain life
but to enjoy it. Under our
Constitution, Article 14 provides that the dignity of man and subject to law
the privacy of home shall be inviolable.
The fundamental right to preserve and protect the dignity of man under
Article 14 is unparalleled and could be found only in few Constitutions of
the world. The Constitution
guarantees dignity of man and also right to life under Article 9 and if both
are read together, question will arise whether a person can be said to have
dignity of man if his right to life is below bare necessity like without proper
food, clothing, shelter, education, health care, clean atmosphere and
unpolluted environment. Such
questions will arise for consideration which can be dilated upon in more detail
in a proper proceeding involving such specific questions.
15. Dr. Pervaz Hasan has also referred to several judgments of the
Indian Supreme Court in which issues relating to environment and ecological
balance were raised and relief was granted as the industrial activity causing
pollution had degraded the quality of life. In Rural Litigation & Entitlement
Kendra and others v. State of UP and others (AIR 1985 SC 652) mining operation
carried out through blasting was stopped and directions were issued to regulate
it. The same case came up for
further consideration and concern was shown for the preservation and protection
of environment and ecology.
However, considering the defence need and for
earning foreign exchange some queries [sic] were allowed to be operated in a
limited manner subject to strict control and regulations. These judgments are reported in AIR 1987
SC 359 and 2426 and AIR 1988 SC 2187 and AIR 1989 SC 594. In Shri Sachidanand
Pandy and another v. The State of West Bengal and
others (AIR 1987 SC 1109) part of land of zoological garden was given to Taj
Group of Hotels to build a five-star hotel. This transaction was challenged in the
High Court without success. The
appeal was dismissed. Taking note
of the fact that society’s interaction with nature is so extensive that environmental
question has assumed proportion affecting all humanity, it was observed that:--
Obviously, if the Government is alive
to the various considerations requiring thought and deliberation and has
arrived at a conscious decision after taking them into account, it may not be
for this Court to interfere in the absence of mala fides. On the other hand, if relevant
considerations are not borne in mind and irrelevant considerations influence
the decision, the Court may interfere in order to prevent a likelihood of
prejudice to the public.
In
M.C. Mehta v. Union of India (AIR 1988 SC 1115) and M.C. Mehta v. Union of
India (AIR 1988 SC 1037) the Court on petition filed by a citizen taking note
of the fact that the municipal sewage and industrial effluents from tanneries
were being thrown in River Ganges whereby it was completely polluted, the
tanneries were closed down. These
judgments go a long way to show that in cases where life of citizens is
degraded, the quality of life is adversely affected and health hazards are
created affecting a large number of people, the Court in exercise of its
jurisdiction under Article 184(3) of the Constitution may grant relief to
the extent of stopping the functioning of factories which create pollution and
environmental degradation.
16. In the problem at
hand the likelihood of any hazard to life by magnetic field effect cannot be
ignored. At the same time the need
for constructing grid stations which are necessary for industrial and economic
development cannot be lost sight of. From the
material produced by the parties it seems that while planning and deciding to construct
the gird [sic] station WAPDA and the Government Department acted in a routine
manner without taking into consideration the latest research and planning in
the field nor any thought seems to have been given to the hazards it may cause
to human health. In these circumstances,
before passing any
final
order, with the consent of both the parties we appoint NESPAK as Commissioner
to examine and study the scheme, planning, device and technique employed by
WAPDA and report whether there is any likelihood of any hazard or adverse
effect on health of the residents of the locality.
NESPAK may also suggest variation in the plan for minimizing the alleged
danger. WAPDA shall submit all the
plans, scheme and relevant information to NESPAK. The petitioners will be at liberty to
send NESPAK necessary documents and material as they desire these documents
should reach NESPAK within two weeks.
NESPAK is authorized to call for such documents or information from
WAPDA and the petitioners which in their opinion is necessary to complete their
report. The report should be
submitted within four weeks form the receipt of the order after which further
proceeding shall be taken. WAPDA is
further directed that in future prior to installing or constructing any grid
station and/or transmission line, they would issue public notice in newspapers,
radio and television inviting objections and to finalize the plan after
considering the objections, if any, by affording public hearing to the persons
filing objections. This procedure
shall be adopted and continued by WAPDA till such time the Government
constitutes any commission or authority as suggested above.
M.B.A./S-869/S Order accordingly.