Citation: (2006) 3 SCC 549Date of the Judgement: 23rd February,
Citation: (2006) 3 SCC 549
Date of the Judgement: 23rd February, 2006
Bench: Justice Ruma Pal, Justice Dr. A.R.Lakshmanan
Facts:
The appellant in the present case is a registered society called the Intellectuals Forum, filed two appeals against the Judgment of the division bench of the High Court. The contesting parties as respondents are the State of Andhra Pradesh represented by its Chief Secretary, Tirupathi Urban Development Authority represented by its Vice-Chairman and the A.P. Housing Board represented by its Vice-Chairman and Housing Commissioner.
The case relates to the preservation and restoration of two tanks’ status quo, being historical and in existence since the time of Srikrishnadevaraya, 1500A.D. The tanks are called ‘Avilala Tank’ and ‘Peruru Tank,’ situated in suburbs of Tirupathi Town, a world-renowned pilgrim. Appellant complained regarding the systematic destruction of percolation, irrigation, and drinking water tanks in their town with the alienation of the tank bed land to the Urban Development Authority and AP Housing board for the urban development of land.
High Court’s decision:
By the impugned and common judgment dated 28.9.2000, the Division Bench of the High Court found no illegality or irregularity in the respondents’ actions dismissed both the writ petitions. Aggrieved by the dismissal of the writ petitions, the appellant has filed these appeals by way of special leave petitions.
Contentions of Appellant:
The appellant’s principal argument was that the development of towns focuses only on the economic growth of the people by ignoring the importance and primacy attached to the protection of the environment and the production of valuable resources like freshwater resources.
Moreover, they contended about the visit of the engineering team, which suggests some measures for the improvement of feeder channels for the Peruru tank and Avilala tank to improve the water table in tanks.
They also contended that the High Court had given precedence to the economic growth by completely ignoring the importance and primacy attached to the protection of the environment and protection of valuable and most cherished freshwater resources. Without considering the well-planned development of Tirupathi town, the Government alienated the Tank bed lands in favor of some governmental agencies for valuable consideration.
Contentions of Respondents:
They submitted that the tank, which is in question, was abandoned as far back as 1992, and there was no water in the tank from 1984. They further contended that the Tank area was bulldozed, and the entire land was leveled. It was observed that after sinking that well to a depth of about 60 feet, the land was not receiving water from any ground resource. Therefore, a proposal for the tank’s abandonment was applied to the district collector by the Revenue Divisional Officer. After that, public notices were published for inviting objections related to the same matter, but no objections were filed by a single individual. Also, the consent letters were given by the individuals for the abandonment of the tank.
Issues:
The Court constituted an expert committee for inspections and the possibility of reviving the tanks and formulated the following issues:
- Whether the Urban Development could be given primacy over and above the need to protect the environment and valuable freshwater resources?
- Whether the action of the A.P. state in issuing the impugned G.Os to alienate property could be permitted in derogation of Articles 14 and 21 of India’s Constitution and the Directive Principles of State Policy and fundamental duties enshrined in the Constitution of India?
- Whether the need for sustainable development can be ignored, do away with, and cause harm to the environment in the name of urban development?
- Whether there are any competing public interests and, if so, how the conflict is to be adjudicated/reconciled?
Reasoning of the Court:
The Supreme Court discussed many essential principles and constitutional provisions to provide thorough reasoning.
It reiterated the position concerning the State’s responsibility that “In absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resource and convert them into private ownership or commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the Courts find it necessary, in good faith, for the public and in public interest to encroach upon the said resources.” ( M.C. Mehta v. Kamal Nath, 1997 (1) SCC 388 )
The responsibility of the State to protect the environment is now a well-accepted notion in all countries. This responsibility is enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party.
- Sustainable Development
The Court, while discussing the principle of sustainable development, referred to Enviro-Legal Action v. Union of India[2]It held that “Both development and environment should go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of the environment.”
It seems fit to hold that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege.
- Doctrine of Public Trust
To explain the doctrine of public trust, Court referred to an article by Prof. Sax that three types of governmental authority restrictions are often thought to be imposed by the public trust doctrine.
1.the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
2. the property may not be sold, even for fair cash equivalent
3. the property must be maintained for particular types of use. (i) either traditional uses, or (ii) some uses particular to that form of resources.[3]
In the instant case, it seems that the Government Orders, as they stand now, are violative of principles 1 and 3, even if we overlook principle 2 based on the fact that the Government is developing it rather than transferring it to a third party for value.
Therefore, our order should rectify these defects and follow the principle of sustainable development, as discussed above.
- The principle of inter-generational equity
In this context, the environment is viewed more as a resource basis for the survival of the present and future generations.
Principle 1 – Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for the present and future generations.
Principle 2 – The natural resources of the earth, including the air, water, lands, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of the present and future generations through careful planning or management, as appropriate.”
The principles mentioned above wholly apply for adjudicating matters concerning environment and ecology. These principles must, therefore, be applied in full force for protecting the natural resources of this country.
- Article 14, 21, 48A, and 51A
Art. 48-A of the Constitution of India mandates that the State shall endeavor to protect and improve the environment to safeguard the forests and wild life of the country. Art.51A of the Constitution of India, enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve national environment. These two Articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these principles in making laws and further these two articles are to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution of India and also the various laws enacted by the Parliament and the State Legislature.
On the other hand, we cannot also shut our eyes that shelter is one of the basic human needs just next to food and clothing.
Therefore, the concerned Government should “consider the importance of public projects for the betterment of the conditions of living people on one hand and the necessity for preservation of social and ecological balance and avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other and strike a balance between the two conflicting objectives.”[4]
Judgement:
Supreme Court stressed that in recent times because of poverty, migration of people from rural areas to urban areas in common. Because of the limited infrastructure, towns are becoming slums. The Supreme Court, therefore, could not prevent the Government from the proceeding for town development in question.
On the other hand, the tank was only a community property, and the government authorities, who are the trustees, to manage such properties for the welfare of the society- according to the Supreme Court, the government cannot be allowed to commit any act which is against the right of the community. Therefore, the right to shelter can’t be taken away from the public. Another aspect was money spent by the respondents for the development of land, but merely on these fact court cannot ignore the destruction of environment at large. Thus, the court disposed off the appeals and gave the guidelines to be followed. The houses which were already constructed shall have the rooftop rainwater harvesting to recharge the groundwater and no further tube well or bore well was to be allowed in that area.
Conclusion:
This judgement balances the need to protect the environment and the right to shelter. As the houses planned were constructed for middle-class families, the Court was not in favor to deprive them of their basic necessity that is right to shelter. Along with this, the decision was not solely based upon the right to shelter or urban development but also concerned the protection, conservation, and safeguard of natural resources, that is water resources in the present case.
[2] 1996 (5) SCC 281.
[3] Joseph L. Sax, “The public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” Michigan Law Review, Vol.68 No.3 (Jan.1970) PP 471-566).
[4] Dahanu Taluka Environmental Protection Group and Ors. v. Bombay Suburban Electricity Supply Co. Ltd. & Ors. (1991) 2 SCC 539.
