Intellectuals Forum, Tirupathi v. State of A.P., AIR 2006 SC 1350

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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 (TUDA) 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 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 (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:

1. Whether the urban development could be given privacy over and above the need to protect the environment and valuable fresh water resources?

2. 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?

3. Whether the need for sustainable development can be ignored, done away with and cause harm to the environment in the name of urban development?

4. Whether there are any competing public interests and if so how the conflict is to be adjudicated/reconciled?

Referred Case Laws

On Conflict and Public Trust

• 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 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]:

  1. 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;

  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. “

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.

Article 48-A of the Constitution mandates that the State shall endeavour to protect and improve the environment to safeguard the forests and wildlife of the country. Article 51-A of the Constitution enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. 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 and also the various laws enacted by Parliament and the State Legislatures.

Importance of Public Projects

• Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Co. Ltd. [(1991) 2 SCC 539] held that the Government concerned should consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balances, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen.

Relying on the above judgement, the Court in present case held: We have already noticed the ground realities as pointed out by the Government of Andhra Pradesh, TUDA and TTD in their reply to the civil appeals by furnishing details, datas and particulars. Nowadays because of poverty and lack of employment avenues, migration of people from rural areas to urban areas is a common phenomenon. Because of the limited infrastructure of the towns, the towns are becoming slums. We, therefore, cannot countenance the submissions made by the appellant in regard to the complete restoration and revival of two tanks in the peculiar facts and circumstances of this case. We cannot, at the same time, prevent the Government from proceeding with the proper development of Tirupathi town.

Therefore, under the present circumstances, the Court should do the most it can, to safeguard the two tanks in question. However, due to the persistent developmental activities over a long time, much of the natural resources of the lakes have been lost, and considered irreparable.

Commentary

Doctrine of Public Trust

It is true that the doctrine imposes a positive duty on the government, but it does not prohibit alienation of property. The courts should take a hard look at State interference with the free use of the land under public trust. The Government can neither use nor sell the property against public purpose. In other words, the Government shall not deviate from the traditional uses of the resources.

As a trustee, the State can interfere and attempt to compensate the damage already done as a result of over-exploitation of resources. Despite such interventions, the need for a proactive planning by the State is suggested with a view to preventing over-exploitation and misuse.

Sustainable Development

Sustainable development seeks to meet the needs and aspirations of the people of the present without compromising the ability to meet those of the future.

The concept demands that all nations must aim at a type of development that integrates production with resource conservation and enhancement, and that links both to the provision for all of an adequate livelihood base and equitable access to resources.