2006 (2) TMI 698 - SC - Indian Laws

Preservation of and restoration of status quo ante of tanks called Avilala Tank' and Peruru Tank' - Systematic destruction of percolation, irrigation and drinking water tanks in Tirupathi Town - challenged the Government Orders, directed to hand over the tank bed areas of Avilala tank and Peruru tank to TTD and to A.P. Housing Board - Prayer made by the Indian Medical Association due to alarming increase of the toxic contents like Fluorides and other salts in the underground water due to steep fall in the underground water table level - Whether the Urban Development could be given primacy over and above the need to protect the environment and valuable fresh water resources? - HELD THAT - The set of facts in the present case relates to the preservation of and restoration of status quo ante of two tanks, historical in nature being in existence since the time of Srikrishnadevaraya, The Great, 1500 A.D., where the cry of socially spirited citizens calling for judicial remedy was not considered in the right perspective by the Division bench of the High Court of Andhra Pradesh despite there being overwhelming evidence of the tanks being in existence and were being put to use not only for irrigation purpose but also as lakes which were furthering percolation to improve the ground water table, thus serving the needs of the people in and around these tanks. The Division Bench of the High Court, in the impugned order, has given precedence to the economic growth by completely ignoring the importance and primacy attached to the protection of environment and protection of valuable and most cherished fresh water resources. No doubt, the wishful thinking and the desire of the appellant- forum , that the Tanks should be there, and the old glory of the tanks should be continued, is laudable. But the ground realities are otherwise. 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. Now a days because of the 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. The two Government Orders which are impugned have been issued long before and pursuant to the issuance of the Government Orders, several other developments have taken place. Constructions and improvements have been made in a vast measure. Because of spending crores and crores of rupees by various authorities, the only option now left to the appellant and the respondents is to see that the report submitted by the Expert Committee is implemented in its letter and spirit and all the respondents shall cooperate in giving effect to the Committee's report. The Respondents have claimed that the valuable right to shelter will be violated if the impugned Government Orders are revoked. On the facts of the present case, it seems that the respondents intend to build residential blocks of flat for High and Middle income families, institutions as well as infrastructure for the TTDS. If the proposed constructions are not carried on, it seems unlikely that anyone will be left homeless or without their basic need for shelter. Therefore, one feels that the right to shelter does not seem to be so pressing under the present circumstances so as to outweigh all environmental considerations. Another plea repeatedly taken by the respondents correspond to the money already spent on developing the land. However, the decision of this case cannot be based solely upon the investments committed by any party. Since, otherwise, it would seem that once any party makes certain investment in a project, it would be a fait accompli and this Court will not have any option but to deem it legal. 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 has been lost, and considered irreparable. This, though regrettable, is beyond the power of this court to rectify. One particular feature of this case was the competing nature of claims by both the parties on the present state of the two tanks and the feasibility of their revival. We thought that it would be best, therefore, if we place reliance on the findings of the expert committee appointed by us which has considered the factual situation and the feasibility of revival of the two tanks. Thus in pursuance of a study of that committee, this Court passes the following orders. The appeals are disposed of with the following directions With regard to Peruru tank - (i) No further constructions to be made. (ii) The supply channel of Bodeddula Vanka needs to be cleared and revitalized. A small check dam at Malapali to be removed to ensure the free flow and supply to the tank. (iii) Percolation tank to be constructed and artificial recharge to be done to ensure the revival of the tank, keeping in mind its advantage at being situated at the foot hills. (iv) The area allotted by Mandal Revenue Office for construction of the tank to be increased to a minimum of 50 acres. Percolation tank with sufficient number of recharge shafts to be developed to recharge the unsaturated horizons up to 20 m. The design of the shafts etc. to be prepared in consultation with the CGWB. The proposed percolation tank to be suitably located along the bund keeping in view the inlets, irrigation sluices and surplus water. (v) Feasibility and cost estimation for the revival of the old feeder channel for Swarnamukhi River should be carried and a report to be submitted to the Court. (vi) Each house already constructed by the TTD must provide for roof top rain water harvesting. Abstraction from ground water to be completely banned. No borewell/ tubewell for any purpose to be allowed in the area. (vii) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime. With regard to Avilala tank - (i) No further construction to be allowed in the area. (ii) Each house already constructed by the APHB/ TUDA must provide structure for roof top rain water harvesting. All the storm water in the already built colonies to be recharged to ground water. Structures for such purposes to be designed in consultation with the CGWB. (iii) No borewell/ tubewell for any purpose to be allowed in the area. (iv) An area of 40 acres presently reserved for the Government should not be developed in any way that may lead to concretization of the ground surface. Recharge structures to be constructed for rainwater harvesting. (v) Piezometers to be set up at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime. We place on record our deep appreciation for the valuable assistance rendered by all the counsel appearing in this case which made our job easier. The appeals are disposed of accordingly no costs.

Summary

Issues Involved:
1. Primacy of Urban Development vs. Environmental Protection
2. Compliance with Articles 14 and 21 of the Constitution of India
3. Sustainable Development
4. Competing Public Interests

Detailed Analysis:

1. Primacy of Urban Development vs. Environmental Protection
The primary issue was whether urban development could be given precedence over the need to protect the environment and valuable freshwater resources. The court acknowledged the importance of balancing economic and social needs with environmental considerations. It emphasized that sustainable development should be the guiding principle, ensuring that development meets present needs without compromising the ability of future generations to meet their own needs. The court stressed that environmental protection must be integrated into the development process and not considered in isolation.

2. Compliance with Articles 14 and 21 of the Constitution of India
The court examined whether the actions of the Andhra Pradesh state in issuing the impugned Government Orders (G.Os) violated Articles 14 and 21 of the Constitution, which guarantee equality before the law and the right to life, respectively. The court noted that the state has a constitutional obligation to protect the environment. The tanks in question are public properties, and the state, as a trustee, must manage them for the community's benefit. The court held that the actions of the state in alienating the tank bed lands for housing purposes were not consistent with the principles of public trust and sustainable development.

3. Sustainable Development
The court highlighted the concept of sustainable development, which aims to balance economic growth with environmental protection. It referred to international conventions, such as the Stockholm Convention and the Rio Declaration, which advocate for an integrated approach to development planning that ensures environmental protection. The court cited previous judgments emphasizing that economic development should not come at the cost of environmental degradation. It held that the principle of sustainable development must be followed, ensuring that development is compatible with environmental preservation.

4. Competing Public Interests
The court acknowledged the competing public interests in this case: the need for housing and urban development versus the need to protect the environment and water resources. It noted that while shelter is a basic human need, the right to shelter does not outweigh environmental considerations in this context. The court emphasized the importance of preserving natural resources for future generations and held that the government must act as a trustee of these resources, ensuring their protection and sustainable use.

Conclusion:
The Supreme Court concluded that the impugned Government Orders were inconsistent with the principles of sustainable development and public trust. It directed that no further constructions be made on the tank bed lands and mandated measures for rainwater harvesting and groundwater recharge. The court ordered that the existing constructions must incorporate structures for rainwater harvesting and banned the abstraction of groundwater in the area. The court's decision aimed to balance the developmental needs with environmental preservation, ensuring the sustainable use of natural resources.