Intellectuals Forum, Tirupathi v State of A.P. (2006)

If M.C. Mehta v Kamal Nath introduced the public trust doctrine, this case is where the Supreme Court worked out how to apply it — and where it set out Professor Sax's three restrictions, tested the government's action against them, and combined the doctrine with sustainable development and inter-generational equity in a single judgment.

It is also a rare and instructive case in which the Court found a breach of the public trust and still refused to restore the status quo, because the ground realities had moved on. That candour makes it the best case in this course for a question on the limits of environmental adjudication.

The Court itself framed the two levels of the case: first, "at a jurisprudential level, it falls on this Court to lay down the law regarding the use of public lands or natural resources, which have a direct link to the environment of a particular area, by the Government"; and second, the order to be passed on the facts about the two tanks.

The appellant was a registered society, the Intellectuals Forum. The respondents were the State of Andhra Pradesh, the Tirupathi Urban Development Authority (TUDA) and the A.P. Housing Board.

The case concerned "the preservation of and restoration of status quo ante of two tanks, historical in nature, being in existence since the time of Srikrishnadevaraya, 1500 A.D." — the Avilala tank and the Peruru tank, in the suburbs of Tirupathi, a pilgrim centre with a daily inflow of tourists "between one lakh to two lakhs".

The complaint was of "Systematic destruction of percolation, irrigation and drinking water tanks in Tirupathi town" and of the alienation of the tank beds:

| Government order | Land | Alienated to | |---|---|---| | GOMs No. 181 Rev., 15 March 1991 | 150 acres of Peruru tank bed | Tirumala Tirupathi Devasthanam (TTD) | | GOMs No. 84 Rev., 28 January 1994 | 90 acres of Avilala tank bed | A.P. Housing Board, with TUDA to provide a master plan for the entire 170 acres |

The appellant's case was that the High Court "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 freshwater resources". Tirupathi lies in the drought-prone region of Rayala Seema; a team of engineers had recorded in the minutes of a meeting of 26 May 1990 that improving the feeder channels of the two tanks "would improve the percolation of all the surrounding areas". The Indian Medical Association supported restoration because of the "alarming increase of toxic contents like fluorides and other salts in the underground water due to steep fall in the underground water table level".

The respondents relied on public interest and on money spent: the Housing Board said it had invested "Rs. 88.43 lakhs towards development of land" and in all Rs. 1,78,43,000, and that "the area is fully developed"; TTD said "a number of dwellings have come up in the entire area".

The Division Bench of the High Court, by common judgment of 28 September 2000, dismissed both writ petitions "finding no illegality or irregularity in the action of the respondents". Hence the appeals.

By order of 5 December 2003 the Court directed the Secretary, Ministry of Water Resources, "to constitute a committee of experts for the purpose of submitting a report on the question whether the two tanks, namely, the Peruru and Avilala or either of them can be utilized for water harvesting", to report within six weeks, after local inspection on notice to the advocates on record.

The Committee inspected on 19 and 20 January 2004 and reported on 21 January 2004. Its findings on Avilala were stark: "There is no tank existing in the area at present. Remains of the original demolished bund were seen. The area upstream was plain with no indications of any water storage." The reported feeder channels were "in fact localized drainage lines which do not have any direct source of surface water from the nearby Tirumala hills".

On Peruru the Committee examined reviving the old feeder channel from the Swarnamukhi river, found restoration impracticable, and suggested instead a percolation tank of 50 acres instead of the 20 acres earmarked, "with rooftop rainwater harvesting and artificial recharge for increasing the groundwater level".

The Court framed them itself, and they make a ready-made essay plan:

1. "Whether the urban development could be given privacy over and above the need to protect the environment and valuable fresh water resources?" (The report prints privacy; the word intended is primacy.)
2. Whether the impugned government orders 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?"

(a) State responsibility and the Stockholm Declaration

"The responsibility of the State to protect the environment is now a well-accepted notion in all countries." In international law that notion produced the principle of State responsibility for pollution emanating within one's own territory, the Court citing the Corfu Channel case. It is enunciated in the Stockholm Declaration 1972, to which India was a party, Principle 2:

"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."

Hence "there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of area".

(b) Sustainable development

The Court accepted that the debate between development and environment "is an enduring one", gave the Brundtland definition — "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs." — and added two international texts most students omit:

• Stockholm Declaration, Principle 13: "In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population."
• Rio Declaration, Principle 4: "In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it."

It then quoted Essar Oil Ltd. v Halar Utkarsh Samiti, whose formulation is the neatest statement of the balancing idea in Indian law:

the aim is "to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat." 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."

The operative proposition: "merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources". What the 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".

(c) The public trust doctrine, and Sax's three restrictions

The Court took the doctrine's modern origin from Illinois Central Railroad Co. v People of the State of Illinois (1892): "The bed or soil of navigable waters is held by the people of the State in their character as sovereign in trust for public uses for which they are adapted", and "The State holds title to the bed of navigable waters upon a public trust, and no alienation or disposition of such property by the State which does not recognize and is not in execution of this trust, is permissible."

It stated the doctrine's content: "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"; and although in Roman and English law it related to specific types of resources, "The US courts have expanded and given the doctrine its contemporary shape whereby it encompasses the entire spectrum of the environment."

It recorded that the doctrine "was incorporated as a part of Indian law by this Court in M.C. Mehta v. Kamal Nath and also in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu", quoting Kuldip Singh J. again on the State as trustee under "a legal duty to protect the natural resources", and the Mono Lake affirmative-duty passage.

Then the addition that makes this case indispensable. Formulated "from a nugatory angle", the Court said, "the doctrine does not exactly prohibit the alienation of the property held as a public trust". But where the State holds a resource freely available for public use, "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". And courts must distinguish "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" — the reference being to Joseph L. Sax, "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol. 68, No. 3 (Jan. 1970).

Sax's three restrictions, as reproduced by the Court:

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" (the report prints for us; read for use);
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".

The finding: "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 on the basis of the fact that the Government is itself developing it rather than transferring it to a third party for value."

That is the model of application. Learn the three restrictions and be able to say which of them a given transaction breaks.

(d) Inter-generational equity

The Court added that "the principle of" inter-generational equity "has also been adopted while determining cases involving environmental issues", quoting A.P. Pollution Control Board v Prof. M.V. Nayudu: "The principle of inter-generational equity is of recent origin. 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 was quoted: "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".

And on the constitutional status of the whole subject: "The environmental protection and conservation and natural resources has been given a status of a fundamental right and brought under Article 21 of the Constitution."

This is the honest and difficult part of the judgment, and it is what separates a good answer from a slogan.

• The Court accepted the appellant's aspiration as laudable but said "the ground realities are otherwise", noting migration from rural to urban areas and that "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."
• On the right to shelter. The respondents said revocation would violate it. The Court's answer is a model of proportionate reasoning: they "intend to build residential blocks of flats for high and middle income families, institutions as well as infrastructure for TTD", and "If the proposed constructions are not carried on, it seems unlikely that anyone will be left homeless or without their basic need for shelter." Hence "the right to shelter does not seem to be so pressing under the present circumstances so as to outweigh all environmental considerations".
• On money already spent. "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." This sentence answers the standard defence in every environmental case.
• On what remains possible. "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. This, though regrettable, is beyond the power of this Court to rectify."

The Court also restated the trust in its plainest domestic form: "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".

Peruru tank

1. "No further constructions to be made."
2. The supply channel of Bodeddulu venka to be "cleared and revitalized", and a small check dam at Malapalli removed "to ensure the free flow and supply to the tank".
3. "Percolation tank to be constructed and artificial recharge to be done to ensure the revival of the tank", given its advantage of being at the foothills.
4. The area allotted for the tank "to be increased to a minimum of 50 acres", with recharge shafts to recharge the unsaturated horizons up to 20 m, designed in consultation with the CGWB.
5. Feasibility and cost estimation for reviving the old Swarnamukhi feeder channel to be carried out and reported to the Court.
6. "Each house already constructed by TTD must provide for rooftop rainwater harvesting. Abstraction from groundwater to be completely banned. No borewell/tubewell for any purpose to be allowed in the area."
7. Piezometers to be set up in consultation with the CGWB "to observe the impact of rainwater harvesting in the area on groundwater regime".

Avilala tank

1. "No further construction to be allowed in the area."
2. Rooftop rainwater harvesting for every house already built by the Housing Board or TUDA, and "All the storm water in the already built colonies to be recharged to groundwater".
3. "No borewell/tubewell for any purpose to be allowed in the area."
4. An area of 40 acres reserved for the government not to be treated in any way "that may lead to concretization of the ground surface", with recharge structures for rainwater harvesting.
5. Piezometers as for Peruru.

1. Natural resources including lakes and tanks are held by the State as trustee, and may be disposed of only consistently with the trust; alienation of a tank bed for housing is subject to a high degree of judicial scrutiny however consistent with existing legislation.
2. The public trust doctrine imposes Sax's three restrictions — public availability, no sale even for fair value, and maintenance for traditional or resource-specific uses — and a government order breaching restrictions 1 and 3 is bad.
3. Merely asserting a developmental intention does not sanction destruction of local ecological resources; the court must find a balance under sustainable development.
4. Investment already made does not legalise an unlawful project, and the right to shelter does not outweigh environmental considerations where the housing is for high and middle income families.
5. Where restoration has become physically impossible, the Court will order the maximum feasible mitigation — here rainwater harvesting, percolation tanks, a ban on borewells and monitoring — rather than a futile restitution.