To Control the Destruction Caused by Godawari Marble Industry

Writ NumberYear 1992 Writ no. 35
Decision Date31 October, 1995
Nepal Law ReviewPart 1, Month 1
Decision Number4
Petitioner and RespondentSurya Prasad Dhungel Vs. Board of Godawari Marble Industries and Others
SubjectTo Control the Destruction Caused by Godawari Marble Industry.
Court order








Precedent Established		As per article 11(1) of the Constitution of Kingdom of Nepal, no person shall be deprived of their life except in accordance with the law. A polluted environment endangers human life. The creation of such a polluted environment results in kidnapping of a person's life. Right to be freed from such a polluted environment is a matter of person’s right. In this sense, the relationship of ecological protection is indirectly related to the lives of people, and it should be considered that the present subject is included in Article 11(1) of the Constitution of the Kingdom of Nepal, 1990. (Para.30)


Ecological issues are indeed matters of public interest and concern. Given that ecological issues fall under the category of public rights and concerns, there is no dispute regarding the petitioner’s substantial relation to the subject matter. When the contemporary constitution was repealed and the Constitution of Kingdom of Nepal, 1990 came into force and made provisions for the protection of public rights under its Article88(2). This could have raised questions about whether the petitioner had the locus standi under the previous constitution. However, since the then constitution had established public rights as fundamental rights that is to be protected, this issue should no longer remain as a dispute. (Para.30)

A clean and healthy environment is an integral part of the right to life, meaning that the right to a clean and healthy environment is inherently included within the right to life. (Para.31)

It is confirmed by Article 26(4) of the Constitution of Nepal, 1990 that the petitioner filed the writ petition within that constitutional framework which has undergone a substantive change as among the basic directive principles of the state, protection of ecology is considered one of the important directive principles of the state. Therefore, it is not appropriate to deny the petitioner’s right to file petition for preventing environmental degradation as one of the objectives of the petitioner Leaders Ek is environment protection. (Para.31)

It seems absolutely necessary to create a specific law for effective environmental protection and implementation. Without law, no activity can be conducted in an orderly manner, and law is indispensable for the proper management of ecological crimes and penalties. (Para.33)

Without a law, it is not possible to impose fines or issue orders to shut down the industries. Existing laws are scattered and appear to be insufficient and ineffective. Therefore, it seems necessary to formulate a law that encompasses all aspects of the ecology. It is essential to formulate and implement a separate law for this purpose. (Para.33)

Although the amendment of 19 May,1995 added Section 11(a) to the Minerals Act, 1985 represents a significant step in preventing environmental pollution, the Act would only come into effect after a date specified by the His Majesty's Government. However, His Majesty's Government did not specify such a date, and the first amendment to the Act occurred on 19 May, 1995. Since the legislature legislates the law and executive implements it, here the executive does not seem showing readiness to act in accordance with the legislative intent. (Para.34)

A writ of mandamus is issued to enforce a legal duty. However, the petitioner has not been able to specify the particular law that imposes the legal duty in question. If it is claimed that a legal duty has not been fulfilled, it must be shown that a specific legal duty was assigned to the authority or officials and that they failed to perform it. The essence of a writ of mandamus requires that the legal duty be clear and specific. Therefore, it would not be appropriate to issue a writ of mandamus based on the general assertion of failing to perform public duties without clarifying which specific legal duty applies to which respondent. (Para.39)

In light of the above, and considering the sensitive, humanitarian, national, and international importance of environmental protection in the Godawari area, it appears that there have been neither effective nor satisfactory remedial measures. Therefore, taking into account the lack of enforcement of the Minerals Act, 1985, and the need to draft necessary laws for the protection of air, water, noise, and the environment, it seems appropriate to issue a directive order to take action for the effective protection of the Godawari area's ecology. Hence, this directive order is issued in the names of the respondents. (Para.39)