INTELLECTUALS FORUM TIRUPATHI V. STATE OF A.P., AIR 2006 SC 1350
INTELLECTUALS FORUM, TIRUPATHI V. STATE OF A.P., AIR 2006 SC 1350
BRIEF FACTS
The present case relates to the preservation of and restoration of status quo ante of two tanks, historical in nature. The tanks are called “Avilala tank” and “Peruru tank” which are situated in the suburbs of Tirupathi town. Two appeals have been filed by a registered society called the Intellectuals Forum against the Respondents, 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 systematic destruction of percolation, irrigation and drinking water tanks in Tirupathi town, namely, Avilala and Peruru tanks and alienation of the Avilala tank bed land to the Tirupathi Urban Development Authority (in short TUDA) and the A.P. Housing Board under GOMs No. 84 Rev. dated 28.01.1994 and Peruru tank bed land to Tirumala Tirupathi Dvasthanam (in short TTD) for housing purposes under GOMs NO. 181 Rev. dated 15.03.1991 are impugned in Writ Petitions Nos. 8650 and 7955 of 1994 respectively.
Further, the Division Bench of the High Court finding no illegality or irregularity in the action of the respondents 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.
ISSUES
In the above background, the following questions of law arise for consideration by this Court:
- Whether the urban development could be given privacy over and above the need to protect the environment and valuable fresh water resources?
- Whether the action of A.P. State in issuing the impugned GOs could be permitted in derogation of Articles 14 and 21 of the Constitution as also the directive principles of State policy and fundamental duties enshrined in the Constitution?
- Whether the need for sustainable development can be ignored, done 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?
REFERRED CASE LAWS
M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388: Conflict between the competing interests of protecting the environment and social development.
The issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining Legislative intent in the exercise of their powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the 84 natural resources and convert them into private ownership, or for 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 good and in public interest to encroach upon the said resources.
Corfu Channel case, ICJ Rep (1949) 4: International law, gave rise to the principle of “State responsibility” for pollution emanating within one’s own territories. This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is para 2, which states: The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.
For Sustainable Development:
Essar Oil Ltd. v. Halar Utkarsh Samiti [(2004) 2 SCC 392: “....... the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However¸ there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other. “
Indian Council for Enviro-Legal Action v. Union of India [(1996) 5 SCC 281]: What this Court should follow is the principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellant alleges.
Doctrine of Public Trust:
Illinois Central Railroad Co. v. People of the State of Illinois, [146 US 37 : 36 L Ed 1018 (1892)]:
What this doctrine says therefore is that natural resources, which include lakes, are held by the State as a “trustee” of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust.
Doctrine of Public Trust reiterated in: M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] and also in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464]
“Our legal system … includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment ... The State as a trustee is under a legal duty to protect the natural resources.”
National Audubon Society v. Superior Court of Alpine Country (Mono Lake Case): Summed up the substance of the doctrine.
Thus the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people’s common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust.
The Public Trust Doctrine in Natural Resource Law : Effective Judicial Intervention, Michigan Law Review, Vol. 68, No. 3 (Jan.1970) pp. 471- 566]
“...when the State holds a resource that is freely available for the use of the public, it provides for high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the courts must make a distinction between the Government’s general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources.
“.... three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine [ibid]:
- the property subject to the trust must not only be used for a public purpose, but it must be held available for us by the general public;
- the property may not be sold, even for fair cash equivalent;
- the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources. “
Principle of “Inter- Generational Equity”:
A.P. Pollution Control Board v. Prof. M.V. Nayudu [(1999) 2 SCC 718] held as under:
The 1972 Stockholm Declaration refers to it in Principles 1 and 2.
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 wellbeing, 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.’ (emphasis in original).
JUDGEMENT:
Thus, the Court in the present case stated that 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.
Art