2006 Supreme(SC) 153

2006(2) Supreme 292
Supreme Court of India
(From Andhra Pradesh High Court)
Ruma Pal & Dr. A.R. Lakshmanan, JJ.
Intellectuals Forum, Tirupathi —Appellant
versus
State of A.P. & Ors. —Respondents
Civil Appeal No. 1251 of 2006
(Arising out of S.L.P. (Civil) Nos. 7196-7197 of 2001)
Decided on 23-2-2006
Counsel for the Parties :
For the Appellant : G. Ramakrishna Prasad, Mohd. W. Khan, K.P. Kylashanatha Pillai, S. Byrapaneni, Advocates.
For the Respondents : V.R. Reddy, P.P. Rao, Jaideep Gupta, Anoop G. Chaudhary, Sr. Advocates, Ms. I. Madhavi, B. Sridhar, Mrs. Anjani Aiyagari, K. Ram Kumar, Suman Jyoti Khaitan, P.S. Sudhir, Ms. A. Mathew, Ms. D. Vijan, N.K. Verma, D. Rama Krishna Reddy, Mrs. D. Bharathi Reddy, Ch. L. Sarveswar, Mrs. Sudha Gupta, V. Sridhar Reddy, R. Nedumaran, P.S. Narasimha, A.K. Lala, (for P.S.N. & Co.), Ms. June Chaudhary, Manoj Saxena, A. Meharia, Mohan Prasad Meharia, S. Muralidhar, S. Potaraju, N. Rohit and John Mathew, Advocates.

Important pointIt is true that public water tank is a community property and the State authorities are trustees to hold and manage such properties for the benefit of the community and they cannot be allowed to commit any act or omission which will infringe the right of the community and alienate the property to any other person or body.

Headnote:(i) Constitution of India—Articles 14, 19, 21, 48A, 51A—Water Tanks—Systematic destruction of percolation, irrigation and drinking water tanks in Tirupathi Town, namely, Avilala and Peruru Tank—Tanks are situated in suburbs of Tirupathi Town, historical in nature being in existence since 1500 A.D.—Alienation of Avilala Tank bed land to Tirupathi Urban Development Authority and A.P. Housing Board under G.O.Ms. No. 84 Rev. dated 28-1-1994 and Peruru Tank bed land to Tirumala Tirupathi Devasthanam for housing purposes under G.O.Ms. No. 181 Rev. dated 15-3-1991—Writ petitions filed challenging these Government Orders—Whether Urban Development could be given primacy over and above the need to protect the environment and valuable fresh water resources—Whether action of State in issuing impugned G.Os. could be permitted—Whether need for sustainable development can be ignored.

       Held : 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. It is true that the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body. Taking into account all these principles of law, and after considering the competing claims of environment and the need for housing, this Court holds the following as per the facts of this case. 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. (Paras 79 to 83)

       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. (Paras 85 to 87)

       (ii) Constitution of India—Articles 14, 19, 21, 48A, 51A—Environment Protection—Sustainable development and Public interest—Need for conservation of natural resources.

       Held : Art. 48-A of the Constitution of India mandates that the State shall endeavour 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 including forests, lakes, rivers, wild life 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 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. Need for a National Housing and Habitat Policy emerges from the growing requirements of shelter and related infrastructure. These requirements are growing in the context of rapid pace of urbanization, increasing migration from rural to urban centres in search of livelihood, mis-match between demand and supply of sites and services at affordable cost and inability of most new and poorer urban settlers to access formal land markets in urban areas due to high costs and their own lower incomes, leading to a non-sustainable situation. This policy intends to promote sustainable development of habitat in the country, with a view to ensure equitable supply of land, shelter and services at affordable prices. The World has reached a level of growth in the 21st Century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the Courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of the humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leaves us to the conception of growth and development which sustains from one generation to the next in order to secure ‘our common future’. In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress." It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally. The Parliament has considerably responded to the call of the Nations for conservation of environment and natural resources and enacted suitable laws. The Judicial Wing of the country, more particularly, this Court has laid down a plethora of decisions asserting the need for environmental protection and conservation of natural resources. The environmental protection and conservation of natural resources has been given a status of a fundamental right and brought under Art. 21 of the Constitution of India. This apart, the Directive Principles of State Policy as also the fundamental duties enshrined in Part IV and Part IVA of the Constitution of India respectively also stresses the need to protect and improve the natural environment including the forests, lakes, rivers and wild-life and to have compassion for living creatures. (Paras 72 to 76)