THE ROLE OF PROPERTY LAW IN ENVIRONMENTAL PROTECTION

 This Article is written by Urmila Biswas of University of Calcutta (Hazra Campus), an intern under Legal Vidhiya

ABSTRACT

The concept of property law was previously concerned only with the possession and ownership of certain specific tangible and intangible properties. However, with the advent of time, we have come to understand the role of property law in protecting the environment. This article will delve into the process of evolution of the environmental legislation in our country in a phased manner from Ancient India to the time of the British, and even expand itself into Indian land even after gaining Independence. We will also discuss the risks associated with environmental changes on the property law. Is there any relation between property rights and environmental protection? The different approaches for sustainable development, along with the different constitutional provisions for green governance, will be discussed. The environmental protection regulations serve as a means of development of property law, along with addressing all environmental concerns. Moreover, the regulatory authorities also have a significant role in protecting the environment against different hazards, disasters, and concerns. One of the most important regulatory authorities existing in our country is the National Green Tribunal, which will be discussed in greater detail. Whether there exists any relation between the National Green Tribunal and the individual property rights will be discussed along with some landmark cases.

INTRODUCTION

Property Law is generally concerned with the ownership, possession, transfer, rights, or interests related to property by a private individual or an institution. Different forms of environmental hazards have occurred over the years, necessitating the inclusion of environmental protection measures into a well-defined legal structure. The concern for environmental protection is not only limited to India but also stands as a global problem. The different measures for the sustainability of the environment are a way of human survival on this planet, and are also important for economic development, which is the fundamental concern of property law. However, it is equally true that economic growth has directly contributed to polluting the environment, especially in cases of unchecked economic development. Thus, a paradoxical situation is created, which can be resolved by taking up proper environmental protection measures. Moreover, the essential concept of sustainable development, corresponding with its utility, can never be far-sighted in this context. Property law plays a crucial role in establishing ownership over an environmental asset by limiting unreasonable practices of resource use, it creates environmentally accepted norms. This article will primarily deal with how property law can be utilized as a key to environmental protection, not only on a theoretical level, but with practical application.

EVOLUTION OF ENVIRONMENTAL LEGISLATION IN INDIA

The concept of environmental protection was deeply imbibed in ancient India, we can also find references in the Upanishad and Puranas. The concept of harmony with nature, while undergoing development, could be found in the Harappa and Mohenjo-Daro civilizations. The Mauryan Era also observed protecting the environment by following Kautilya. In his famous work Arthashastra, he explained the utility of the forest and the environment.

During the phase of British rule in India, they completely exploited our natural resources, resulting in the complete degradation of the environment. Thus, the British invaders only focused on exploiting resources for maximum economic surplus. The Indian Forest Act of 1865[1] and 1927[2] are some of the major legislations that were enacted in pre-independent India to increase the amount of state control over forest resources. While the act of 1865 was the point of initiation of state control, the act of 1927 resulted in excessive regulations and control over forest resources.

India, after gaining independence in 1947, devised policies that were concerned with reducing pollution, more environment-oriented policies, and preservation of natural resources. The Forest (Conservation) Act, 1980[3], was a landmark legislation aiming at conserving forest land and removing any hindrance in the forest area, requiring the prior permission of the Central government. The Environmental Protection Act, launched in 1986, is another significant legislation that is the earliest support of environmental regulation in our Country. It led to the assertion of directives towards protecting the environment, and most importantly, led to refining the quality of the environment.[4]

THE RISK OF ENVIRONMENTAL CHANGES ON PROPERTY LAW

Environmental changes directly impact the real property established on the land. If negative changes occur in the environment, such as escalating temperatures, storms, hurricanes, and other drastic weather changes, it phenomenally decreases the price of the property. Conversely, if there is a favorable climate in an area, it attracts buyers, increasing the value of the property. The knowledge of environment-related risks is important for residential buyers, but it is even more significant for commercial buyers. The commercial buyers have a substantial investment; along with that, they also have to keep a watch on the availability of raw materials and environmental changes, as well, in certain commodities. Thus, every individual needs to be aware of the risks associated with extreme environmental changes, as it may change the nature, increase, or decrease the value of the property. Thus, it is to an extent a duty on the legal counsellors to advise the client on environment-related risks attached to a property, both in the United Kingdom and India, and extends to other countries as well.[5]

RELATION BETWEEN PROPERTY RIGHTS AND ENVIRONMENTAL PROTECTION

There is a prominent theory of the ‘wealth effect’ which states that private property generates wealth in an economy. Apart from that, it also enhances natural resources, or more specifically, helps to protect the environment. Economic growth further helps to refine the course of action to shield the environment.[6] Moreover, there lies a sense of responsibility in private property so that they do not affect the broader ecosystem. There lies a notion that private property owners take better care of the property, which ultimately benefits the environment, as it is their asset. A sense of responsibility and a goal to have long-term benefits from a property are the desired objectives that they wish to attain. Thus, private property generates more environmentally sustainable measures than government property.

CONSTITUTIONAL PROVISIONS FOR GREEN GOVERNANCE IN INDIA

There are various provisions in the Constitution of India, 1950,[7] which focuses on the protection of the environment. The state engrosses itself in securing the environment, along with safeguarding the trees and wildlife under Article 48A[8] of the Constitution. Along with it, Article 51A(g)[9] states that the fundamental duty of an individual is to protect the environment and have empathy towards all living beings. Similarly, Article 21[10] is another significant provision that is oriented towards the protection of the Right to life of every individual. Within the ambit of the Right to life, every individual has the right to live in a clean and sound environment. Despite having due legislation, it is not enforced properly due to weak implementation mechanisms, there is a huge amount of corruption, and inadequate participation of people. Moreover, there is a lack of adaptation techniques, no measures exist to restore the environment, resulting in a lack of flexibility, and proactive measures to resist disasters. Due to all these factors, there is a lack of preparedness among people to combat disaster, resulting in massive destruction and loss of property.[11] We need to strengthen the regulatory mechanism, create awareness among the people, and adopt a balanced approach to attain the Sustainable Development Goals.

ENVIRONMENTAL REGULATION AND DEVELOPMENT OF PROPERTY LAW

The environmental regulation measures are devised to assess the impact on the environment by integrating the consideration of the environment with the planning and approval process. Thus, it results in the development of property law. The Environmental Impact Assessments help to predict whether the construction of houses, industries, highways, and other infrastructures affects the environment or not.[12] Apart from assessments, several mitigating measures are upheld to mitigate the negative impacts on our environment. The primary concern is to prevent the depletion of natural resources and lessen the amount of harm done to nature. Thus, we can say in essence that the sustainable development of property gives the framework for regulating the environmental concerns.

THE ROLE OF REGULATORY AUTHORITIES FOR ENVIRONMENTAL PROTECTION IN INDIA

Different forms of regulatory authorities formulate and implement environmental protection guidelines for sustainable development. However, the apex court has laid down a set of guidelines for the regulatory authorities themselves for protecting the environment. The guidelines laid down by the Supreme Court are to keep a check on the working of the regulatory authorities and prevent the arbitrary exercise of power. The guidelines are to have a well-organized composition of the regulatory authorities, along with a definite source of finance, a fixed interval for audit reports, and all the rules and regulations formulated by the regulatory authority should also be published in the regional language.

The Ministry of Environment, Forest, and Climate Change is the primary regulatory authority responsible for the protection of the environment in our country. It is under the direct control of the government, and helps to conserve the natural resources, regulating climate change with an inclination to achieve the Sustainable Development Goals. There are different statutory bodies under the government, like the Central and the State Pollution Control Boards, to address the concerns to environment within their prescribed jurisdiction.[13] Further, the National Green Tribunal is essentially another regulatory authority and a judicial body that plays a significant role in the protection of the environment in India. Several other regulatory authorities are responsible for the protection of the environment, including the Forest Survey of India, which conducts various surveys and assesses the forest resources available, the National Engineering Research Institute (NEERI) critically analyzes and balances the field of environment and engineering, and there are many more such regulatory authorities existing in India.[14]

RELATION BETWEEN THE NATIONAL GREEN TRIBUNAL AND PROTECTION OF PROPERTY RIGHTS

The National Green Tribunal is a judicial body that has been established under the National Green Tribunals Act, 2010[15]. It primarily deals with environmental concerns and plays a pivotal role in environmental jurisprudence in our country. Thus, the National Green Tribunal possesses the original jurisdiction in the sphere of conservation of the environment, defends public health from environmental contamination, and further controls the rise of pollution in our surroundings.[16]

 Moreover, the tribunal also exercises the power of appellate jurisdiction under the provisions of Section 16[17] of the National Green Tribunals Act. There is a specific number of cases against which appeals could lie, which includes decisions relating to environmental conservation, preservation of the forest, and biodiversity protection. Thus, the tribunal sets a strict enforcement measure in the form of time-barred adjudication of disputes on environmental concerns, based on the principle of natural justice and equity. Thus, one can easily validate from the above facts that the National Green Tribunal plays a vital role in preserving the environment, resolving environmental disputes, and safeguarding ecological justice in our country.

The National Green Tribunal not only provides relief in cases of initiating compensation to victims and preventing environmental damage, but also restores the possession of the property where any harm is caused due to environmental hazards. The tribunal is empowered to revive the property in its original state of condition under the provisions of Section 15[18] of the National Green Tribunals Act. The tribunal is also working towards restoring the balance of the environment and preventing environmental hazards from damaging the property. Thus, it amalgamates and harmonizes between the preservation of the environment and takes defense to shield property rights in our country.    

LANDMARK CASES

T.N. Godavarman Thirumulpad v. Union of India[19]

It is an important case relating to environmental rulings in India. In this case, the apex court formed an ad hoc body that is known as the Central Powered Committee. The committee was mainly authorized by the court of law to regulate the different environmental concerns in our country. Later, in the year 2023, the Union Ministry of Environment, Forest, and Climate Change (MoEFCC) was the chief architect, responsible for giving the label of permanent authority to the Central Powered Committee.[20] The position of a fixed entity was given under the ambit of the Environment (Protection) Act, 1986[21].

Vardhaman Kaushik v. Union of India[22]

This case highlights all the directives passed by the National Green Tribunal during the Delhi air pollution situation. The appellant, Vardhaman Kaushik, stood against vehicular emissions resulting in the deteriorating air quality in the national capital. The tribunal ordered the Central Pollution Control Board to take measures against industries that were not complying with the rules and regulations issued by the environmental legislation in India. Thus, the judgment highlighted the active role of the National Green Tribunal in protecting the environment against the pollution of urban settings. This relevant judgment set the stage for the succeeding issues and proceedings on similar disputes.

CONCLUSION

Property law is one of the strongest pillars of environmental protection in our Country. However, several drawbacks cannot be denied, the legal system should be more inclined towards an approach that includes sustainable development. A more comprehensive approach should be taken, which resorts to a balance between individual private property rights and collective ecological development. However, environmental law is a dynamic and evolving subject, with continuous adaptations to sustainable practices, which increases a sense of collaboration among the people. The element of Collaboration brings with it the enforcement of efficient environmental rules and regulations. The Indian government has also improved several important regulations for the protection of the environment, along with constitutional provisions to overcome the ill effects of environmental degradation. Thus, we can conclude that the property law shapes the structure and nature of human interaction with the environment.

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[1] Indian Forest Act, 1865, No. 7, Acts of Parliament, 1865 (India).

[2] The Indian Forest Act, 1927, No. 16, Acts of Parliament, 1927 (India).

[3] The Forest (Conservation) Act, 1980, No. 69, Acts of Parliament, 1980 (India).

[4] The Evolution of Environmental Legislation in India, https://theamikusqriae.com/the-evolution-of-environmental-legislation-in-india/ ,(Last Visited: April 22^nd, 2025).

[5] Property Law and Climate Change, Centre for Climate Engagement, (July 2024), https://lawclimateatlas.org/resources/property-law-and-climate-change/,(Last Visited: April 22^nd, 2025).

[6] Hernando de Soto, The Mystery of Capital 50-57 (2000).

[7] INDIAN CONSTITUTION, 1950, NO. 1, ACTS OF PARLIAMENT, 1950 (INDIA).

[8] INDIA CONST. art. 48 cl. A.

[9] INDIA CONST. art. 51 cl. a subcl. g.

[10] INDIA CONST. art. 21.

[11] Strengthening India’s Environmental Governance, Drishti IAS(28^th January, 2025), https://www.drishtiias.com/daily-updates/daily-news-editorials/strengthening-india-s-environmental-governance ,(Last Visited: April 22^nd 2025).

[12] Eco-Conscious Real Estate: Navigating Environmental Regulations in the Real Estate Sector, Lawkins(25^th July, 2024), https://www.lawkins.in/eco-conscious-real-estate-navigating-environmentalregulationsintherealestatesector/#:~:text=Environmental%20regulations%20are%20enacted%20to,Control%20of%20Pollution,(Last Visited: April 21, 2025).

[13] Swathi Satish: Environmental Regulatory Bodies in India, Clear IAS (26^th July 2024),https://www.clearias.com/environmental-regulatory-bodies/,(Last Visited: April 21^st, 2025).

[14] Supra 14.

[15] National Green Tribunals Act, 2010, No. 19, Acts of Parliament, 2010 (India).

[16] Jurisdiction, Powers and Functions of National Green Tribunal, Law Bhoomi(20^th January, 2025),https://lawbhoomi.com/jurisdiction-powers-and-functions-of-national-greentribunal/,(Last Visited: April 21, 2025).

[17]  National Green Tribunals Act, 2010, § 16, No. 19, Acts of Parliament, 2010 (India).

[18] National Green Tribunals Act, 2010, § 15, No. 19, Acts of Parliament, 2010 (India).

[19] T.N. Godavarman Thirumulpad v. Union of India, writ petition (civil) no. 202/1995.

[20] Swathi Satish: Environmental Regulatory Bodies in India, Clear IAS (26^th July 2024),https://www.clearias.com/environmental-regulatory-bodies/,(Last Visited: April 21^st, 2025).

[21] The Environment (Protection) Act, 1986, No. 29, Acts of Parliament, 1986 (India).

[22] Vardhaman Kaushik v. Union of India, Original Application No.21/2024.

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