Advocate Prakash Mani Sharma and Others v. Godavari Marble Industries Pvt. Ltd. and Others

Advocate Prakash Mani Sharma and others filed a writ petition under Article 107(2) of the Interim Constitution of Nepal, 2007, challenging the decision of the Department of Mines and Geology dated Poush 23, 2067 (2010) that extended the operating permit of Godavari Marble Industries Pvt. Ltd. for an additional 10 years until 2021 (2078 BS). The petitioners had previously filed a writ petition in 2001 challenging the operation of the marble industry in the Godavari area, which is rich in biological diversity. That earlier case resulted in a split decision in 2006 and was still pending before a Full Bench when the permit extension was granted. The Godavari-Phulchowki area is recognized for its ecological significance, containing 571 species of flowering plants, 300 species of butterflies, 254 species of birds, and 80 species of trees, along with water resources and religious and cultural heritage sites. The petitioners argued that the marble industry had been causing destruction to the environment, biological diversity, religious and cultural heritage of the area since 1966 (2023 BS), and that the permit extension was arbitrary, mala fide, and unlawful.

• Whether the right to live in a clean environment as guaranteed by the Interim Constitution had been violated by the continued operation of Godavari Marble Industries
• Whether the permit extension granted during pendency of litigation was lawful
• Whether the operation of the marble industry was compatible with constitutional provisions on environmental protection and State policies on biological diversity
• Whether the activities of the marble industry violated the Mine and Mineral Substances Act, 1985 and the Environment Protection Act, 1997
• Whether the Godavari area should be declared a protected area and mining activities prohibited
• Whether compensation should be paid to affected parties under the 'polluter pays principle'
• Whether the Court could exercise jurisdiction to close down an industry on environmental grounds

The Court issued the following orders: (a) Quashed by certiorari the decision dated Poush 23, 2067 (2010) of the Department of Mines and Geology extending the mining permit until 2021 (2078 BS); (b) Issued a writ of continuous mandamus directing the Government to immediately declare the Godavari area as a prohibited area for mineral work under Section 12(1) of the Mine and Mineral Substances Act, 1985, and to halt all mining activities with immediate effect; (c) Directed the Prime Minister and Council of Ministers to constitute a committee within six months to assess actual environmental damage and recommend measures for restoration and protection; (d) Issued mandamus directing the Government to declare the Phulchowki-Godavari area as a protected area under Section 10(1) of the Environment Protection Act, 1997, or as a Reserve or Park within one year; (e) Ordered quarterly progress reports to be submitted by the Ministry of Environment and Ministry of Forest until completion of the mandated tasks; (f) Directed monitoring by the Court's Monitoring and Inspection Division.

The binding legal principles established by this judgment are: (1) The constitutional right to live in a clean environment (Article 16(1) of the Interim Constitution) and the right to live with dignity (Article 12(1)) are fundamental rights that impose positive obligations on the State to prevent environmental degradation; (2) Sustainable development requires balancing economic development with environmental protection, but where environmental harm significantly outweighs economic benefits, environmental protection must prevail; (3) Areas of significant biological diversity, ecological sensitivity, and cultural/historical importance must be protected, and mining or industrial activities causing irreparable environmental damage in such areas violate constitutional and statutory provisions; (4) The principle of intergenerational equity requires that natural resources and biological diversity must be preserved for future generations and cannot be exhausted for present economic gain; (5) Industries cannot claim immunity from environmental laws on the ground that they were established before such laws came into force; all industries must comply with environmental standards regardless of when they were established; (6) Under Section 12(1) of the Mine and Mineral Substances Act, 1985, areas of public interest and historical importance can and must be declared prohibited areas for mineral activities; (7) Where an industry causes significant adverse environmental impacts as defined in the Mine and Mineral Substances Rules, 1999, Rule 32, and fails to conduct mandatory environmental impact assessments, its operations violate the law and must be halted; (8) The doctrine of 'polluter pays' applies, and industries causing environmental damage bear responsibility for restoration and compensation; (9) Courts have jurisdiction under Article 107(2) of the Constitution to issue writs including certiorari and mandamus to protect environmental rights, close down environmentally harmful industries, and direct the government to declare protected areas; (10) Natural gifts such as mountains, forests, biological diversity, and ecological systems have intrinsic value that cannot be measured in economic terms or exchanged for minerals or development benefits.

The Court made several significant observations beyond the strictly necessary legal holdings: (1) The Court extensively discussed the evolution of international environmental law from the Stockholm Conference (1972) through the Brundtland Commission (1987), Rio Declaration (1992), Convention on Biological Diversity (1992), to Rio+20 (2012), noting that environmental protection has become a matter of global concern and obligation; (2) The Court observed that the Interim Constitution of Nepal's provisions on environmental rights are progressive and rarely seen even in developed countries, representing a forward-looking approach; (3) The Court commented that development and environmental protection should not be viewed as competitors but as complementary objectives that must be pursued together; (4) The Court noted that while development is necessary, especially for developing countries like Nepal, it cannot come at the cost of destroying invaluable natural heritage; (5) The Court observed that economic benefits must be widely and equitably distributed, not concentrated in the hands of a few individuals, for development to be truly sustainable; (6) The Court expressed concern about the lack of coordination among different government agencies, with some ministries supporting the industry while others opposing it, noting that the State must have a unified approach to environmental issues; (7) The Court commented on the need for the Executive to display greater accountability and sensitivity toward environmental matters, noting that mere enactment of laws is insufficient without effective implementation; (8) The Court observed that the appointment of environmental inspectors and creation of necessary institutional infrastructure for environmental protection had been neglected; (9) The Court noted that the value of biological diversity, rare species, and natural beauty cannot be quantified in monetary terms and that their destruction is irreversible; (10) The Court remarked that areas like Godavari serve as "ventilators" for polluted urban areas like Kathmandu Valley and their protection is essential for public health; (11) The Court observed that continuous permit renewals to a single entity for state-owned mineral resources raises questions of equity and public trust; (12) The Court commented that claiming inability to prevent environmental harm due to geographical conditions (as the industry argued regarding soil erosion) is an admission that the activity should not be permitted in that location.

This landmark judgment represents one of the most comprehensive articulations of environmental justice principles in Nepali jurisprudence and South Asian constitutional law. The case established several crucial precedents: (1) it affirmed that the constitutional right to a clean environment is a justiciable fundamental right that can be enforced through judicial intervention; (2) it recognized that environmental protection can override economic interests where environmental damage is irreparable and disproportionate to economic benefits; (3) it applied international environmental law principles including sustainable development, intergenerational equity, the precautionary principle, and the polluter pays principle to domestic law; (4) it held that biological diversity is invaluable national heritage that must be protected for future generations; (5) it established that industries cannot claim exemption from environmental laws merely because they were established before such laws came into force; (6) it affirmed the Court's power of judicial review over administrative decisions affecting the environment and its power to close industries causing significant environmental harm; (7) it mandated proactive government action to declare environmentally sensitive areas as protected zones; (8) it demonstrated robust judicial activism in environmental matters through the use of continuing mandamus and detailed monitoring mechanisms. The judgment extensively engaged with international environmental law frameworks and comparative jurisprudence, setting a high standard for environmental protection in Nepal. It represents a strong assertion of the judiciary's role as guardian of environmental rights and the principle that natural heritage cannot be commodified or sacrificed for private economic gain.