# ' v. STATE OF A.P. AND ORS - **Citation:** [2006] 2 S.C.R. 419 - **Court:** Supreme Court of India - **Decided:** 2006-02-23 - **Case number:** Civil Appeal No. 1251 of2006 - **Bench:** Ruma Pal, Dr. Ar. Lakshmanan - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-state-of-a-p-and-ors-21053 - **Pages:** 40 ## Headnote B ., Environmental Protection: -i Sustainable Development-Public Trust Doctrine-Public Tanks-Prehistoric tanks-Preservation and restoration of-Government Orders directed c handing over of the tank bed areas of Peruru and Avila/a tanks to Tirupathi Urban Development Authority (TUDA)-Writ petitions challenging said Government Orders dismissed-Main grievances of the petitioners were systematic destruction of percolation, irrigation and drinking water tanks and alienation of tank bed lands for housing purposes-Committee of experts D submitted a report on the question whether the two tanks, namely, the Peruru ~ and Avila/a or either of them could be utilized for water harvestingEnvironment and need for housing-Competing claims of-Aqjudicating/ · , ? reconciling of-Held: The responsibility of the State to protect the environment is now a we/I-accepted notion-Intention for development would not be enough to sanction the destruction of local ecological resources-However, shelter is E one of the basic human needs just next to food and clothing-Tank is a communityproperty and the State authorities are trustees to hold and manage such-properties for the benefits of the community--Base.d on the findings of the Committee of experts directions in respect of Peruru and Avila/a tanks issued. F -I Doctrines: I Doctrine of Public Trust-Explained. The appellants filed two writ petitions before the High Court challenging the Government Orders passed by the Government of Andhra G Pradesh by which the District Collector was directed to hand over the tank bed areas of Avilala and Peruru tanks to Tirumala Tirupathi Devasthanam l (TTD) and to A.P. Housing Board. i I The main grievances of the appellants were systematic destruction 419 H 420 SUPREME COURT REPORTS [2006) 2 S.C.R. A of percolation, irrigation and drinking water tanks in Tirupathi Town, namely, Avilala and Peruru Tank a11d alienation of the Avilala Tank bed land to Tirupathi Urban Development Authority (TUDA) and A.P. Housing Board and Peruru Tank bed land to TTD for housing purposes. The High Court dismissed the writ petitions. Hence the appeal. B The Government of India was directed by this Court to constitute a c D E F committee of experts for the purpose uif submitting a report on the question whether the two tanks, namely, the Peruru and Avilala or either of them could be utilized for water harvesting. Pursuant to this the Committee submitted its report. The following questions arose before this Court :- (I) Whether the Urban Development could be given primacy over and above the need to protect the environment and valuable fresh water resources? (2) Whether the action of the A.P. State in issuing the impugned Government Orders could be permitt1:d in derogation of Articles 14 and 21 of the Constitution of India as also the Directive Principles of State Policy and fundamental duties enshrined in the Constitution of India? (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? Disposing of the appeal, the Cout1 HELD: I. I. The responsibility of the State to protect the environment is now a well-accepted notion in all wuntries. It is this notion that, international law, gave rise to the principle of "state responsibility" for G pollution emanating within one's own territories. (448-F) M.C. Mehta v. Kamal Nath, [1997) 1 SCC 388, referred to. i . ' Corfu Channel Case, !CJ Reporrs (1949) 4 and United Nations ~ Conference on the Human Environment, Stockholm 1972 (Stockholm H Convention), referred to. r INTELLECTUALS FORUM, TIRUPA THI 1·.STA TE OF A.P. 421 1.2. Thus, there is no doubt about the fact that there is a A ·"1 responsibility bestowed upon 'the Government to protect and preserve the I tanks, which are an important part of the environment of the area. (448-H; 449-AI 2. The debate ## Text _Characters 0–39,802 of 97,268. This is a partial read: ask again with offset=39802 for what follows._ - -'y INTELLECTUALS FORUM, TIRUPATHI A ' v. STATE OF A.P. AND ORS. FEBRUARY 23, 2006 [RUMA PAL AND DR. AR. LAKSHMANAN, JJ.] B ., Environmental Protection: -i Sustainable Development-Public Trust Doctrine-Public Tanks-Prehistoric tanks-Preservation and restoration of-Government Orders directed c handing over of the tank bed areas of Peruru and Avila/a tanks to Tirupathi Urban Development Authority (TUDA)-Writ petitions challenging said Government Orders dismissed-Main grievances of the petitioners were systematic destruction of percolation, irrigation and drinking water tanks and alienation of tank bed lands for housing purposes-Committee of experts D submitted a report on the question whether the two tanks, namely, the Peruru ~ and Avila/a or either of them could be utilized for water harvestingEnvironment and need for housing-Competing claims of-Aqjudicating/ · , ? reconciling of-Held: The responsibility of the State to protect the environment is now a we/I-accepted notion-Intention for development would not be enough to sanction the destruction of local ecological resources-However, shelter is E one of the basic human needs just next to food and clothing-Tank is a communityproperty and the State authorities are trustees to hold and manage such-properties for the benefits of the community--Base.d on the findings of the Committee of experts directions in respect of Peruru and Avila/a tanks issued. F -I Doctrines: I Doctrine of Public Trust-Explained. The appellants filed two writ petitions before the High Court challenging the Government Orders passed by the Government of Andhra G Pradesh by which the District Collector was directed to hand over the tank bed areas of Avilala and Peruru tanks to Tirumala Tirupathi Devasthanam l (TTD) and to A.P. Housing Board. i I The main grievances of the appellants were systematic destruction 419 H 420 SUPREME COURT REPORTS [2006) 2 S.C.R. A of percolation, irrigation and drinking water tanks in Tirupathi Town, namely, Avilala and Peruru Tank a11d alienation of the Avilala Tank bed land to Tirupathi Urban Development Authority (TUDA) and A.P. Housing Board and Peruru Tank bed land to TTD for housing purposes. The High Court dismissed the writ petitions. Hence the appeal. B The Government of India was directed by this Court to constitute a c D E F committee of experts for the purpose uif submitting a report on the question whether the two tanks, namely, the Peruru and Avilala or either of them could be utilized for water harvesting. Pursuant to this the Committee submitted its report. The following questions arose before this Court :- (I) Whether the Urban Development could be given primacy over and above the need to protect the environment and valuable fresh water resources? (2) Whether the action of the A.P. State in issuing the impugned Government Orders could be permitt1:d in derogation of Articles 14 and 21 of the Constitution of India as also the Directive Principles of State Policy and fundamental duties enshrined in the Constitution of India? (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? Disposing of the appeal, the Cout1 HELD: I. I. The responsibility of the State to protect the environment is now a well-accepted notion in all wuntries. It is this notion that, international law, gave rise to the principle of "state responsibility" for G pollution emanating within one's own territories. (448-F) M.C. Mehta v. Kamal Nath, [1997) 1 SCC 388, referred to. i . ' Corfu Channel Case, !CJ Reporrs (1949) 4 and United Nations ~ Conference on the Human Environment, Stockholm 1972 (Stockholm H Convention), referred to. r INTELLECTUALS FORUM, TIRUPA THI 1·.STA TE OF A.P. 421 1.2. Thus, there is no doubt about the fact that there is a A ·"1 responsibility bestowed upon 'the Government to protect and preserve the I tanks, which are an important part of the environment of the area. (448-H; 449-AI 2. The debate .. between the developmental and economic needs and that of the environment is an enduring one, since if environment is B destroyed for any purpose without a compelling developmental cause, it .., will most probably run foul of the executive and judicial safeguards . --1 However, this Court has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In response to this difficulty, policy makers and c judicial bodies across the world have produced the concept of "sustainable development". (449-B-C] Enviro-Legal Action v. Union of India, (1996( 5 SCC 281, MC. Mehta v. Union of India (Taj Trapezium Case), (199712 SCC 653, State of Himachal Pradesh v. Ganesh Wood Products, (199513 SCC 363 and Narmada Bachao D Ando/an v. Union of India, (2002] 10 SCC 664, relied on. -~ Essar Oil v. Ha/ar Utkarsh Samiti, (2004] 2 SCC 392, referred to. /-; World Commission on Environment and Development, 1987 (Brundtland Report), Rio Declaration of Environment and Development, E 1992 and Union Nations Conference on the Human Environment, . Stockholm 1972 (Stockholm convention), referred to. - 3. Merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. The principle of sustainable development should be followed and a balance be found F between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege. [450-F] 4. The Doctrine of Public Trust says that natural resources, which include lakes, are held by the State as a "trustee" of the public, and can G be disposed of only in a manni,r that is consistent with the nature of such .;. a trust. Though this doctrine existed in Roman and English Law, it related -t 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. [451-C-D] H 422 SUPREME COURT REPORTS [2006] 2 S.C.R. A M.C. Mehta v. Kamal Nath, (1997( I sec 388 and M./. Builders v. Radhely Shyam Sahu, (1999( 6 SCC 464, relied on. •' lllionois Central Railroad Company v. People of the State of Jllinois, 146 US 537 (1892), referred to. B 5.1. The judgment in National Audubon Society's case is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated From a nugatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the St~1te holds a resource that is l'reely C available of the use of the public, it provides for a high degree of judicial scrutiny upon any action of the Government, no matter consistent with the existing legislations that attempt to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the Government':1 general obligation to act for the public benefit, and the special, more demanding obligation which it may D have as a trustee of certain public res•ources. (451-F, H; 452-A-C) National Audubon Society v. Superior Court uf Alpine Country 33 Cal 419, referred to. 5.2. The following three types of restrictions on Governmental E authority are often thought to be imposed by the public Trust Doctrine:- F G (a) the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; (b) the property may not be sold, even for fair cash equivalent. (c) the property must be maintained for particular types of use, (i) either traditional uses, or (ii) some uses particular to that form or resources. (452-C-El Joseph L. Sax: ''The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention'', Mi~hingan Law Review, Vol. 68 No. 3 (Jan. 1970) pp. 471-566, referred to. 'f' .... . ' 5.3. In the instant case, the Government Orders, as they stand now, " are violative of principles I and 3, even if this Court overlooks principle 2 H on the basis of the fact that the Government is itself developing it rather • INTELLECTUALS FORUM, TIRUPATHI v.STATEOF A.P. 423 than transferring it to a third party for value. [ 452-E-F] A '7 5.4. Therefore, the principle of sustainable development should be followed while trying to rectify these defects. [ 452-F-G) 6.1. Article 48-A and 51-A are not only fundamental in the governance of the country but also it shall be the duty of the State to apply B 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 "'f right 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. (453-F-G) A.P. Pollution Control Board v. Prof M V. Nayudu, [1999] 2 sec 718, c referred to. 6.2. On the other hand, this Court cannot also shut its eyes that shelter is one of the basic needs just next to food and clothing. Need for a National Housing and Habitat Policy emerges from the growing D 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, mismatch between ' . deemed 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 E non-sustainable situation. This policy intends to promote sustainable development of habitat in the country, with a view to ensuring equitable supply of land, shelter and services at affordable prices. (453-H; 454-A-B) 7.1. The World has reached a level of growth in the 21st Century as F -1 never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the Courts are asked tot 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 G the natural resources for the benefit of the humanity and future generations could be ignored in the grab of economic growth or compelling l human necessity. The growth and development process are terms without y any content, without an inkling as to the s_ubstance of their end results. ' This inevitably leaves one to the conception of growth and development which sustains from one generation to the next in order to secure 'our H 424 SUPREME COURT REPORTS [2006] 2 S.C.R. A common future'. It! pursuit of devr.lopment, focus has to be on sustainability of development and p0Uc1ies towards that end have to be earnestly formulated and sincerely observed. [454-C-E] 7.2. It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their B 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. [454-E-F] 8.1. The Parliament has considerably responded to the call of the C Nations for conservation of environmt:nt and natural resources and enacted suitable laws. (454-F-G) 8.2. The Judicial Wing of the country, more particularly, this Court has laid down a plethora of decistons asserting the need for environmental protection and conservation of natural resources. The environmental D protection and conservation of natural rt:sources has been given a status of a fundamental right and brought undt:r Art. 21 of the Constitution of India. This apart, the Directive Principles of State Policy - also the fundamental duties enshrined in Part IV arid Part IV A 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 E to have compassion for living creatures. 1454-G-H; 455-AJ Dahanu Taluka Environmental Protection Group v. Bombay Suburban Electricity Supply Co. Ltd, [1991) 2 SCC 539, referred to. 9.1. The set of facts in the present ca.se relates to the preservation of F and restoration of status quo ante of two tanks, historical in nature being in existence since the time of Srikrishnadcvaraya, The Great, 1500 A.O., where the cry of socially spirited citizens calling for judicial remedy was not considered in the right perspective by the High Court despite there being overwhelming evidence of the tanks being in existence and were G being put to use not only for irrigation p111rpose 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 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 H resources. (455-F-H; 456-AJ t . ' _ .. ,,. INTELLECTUAL:S FORUM, TIRUPATHI >.STATE OF A.P. 425 9.2. No doubt, the wishful thinking and the desire ofthe appellant- A 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. Nowadays 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 B are becoming slums. The submissions made by the appellant in regard to the complete restoration and revival of two tanks cannot be countenanced in the peculiar facts and circumstances of this case. At the same time, the Government cannot be prevented 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 C 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 Committee is implemented in its letter and spirit ·and all the respondents shall cooperate in giving effect to the Committee's report. (456-B-El D 9.3. 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 E property to any other person or body. (456-FI 10.1 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 F 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. (456-G-H; 457-A) 10.2. Another plea repeatedly taken by the respondents correspond to the money already spent on developing the land. However, the decision G of this case cannot be based solely upon the investments committed by any party. Since, otherwise, it would seem that one any party makes certain investment in a project it would be afait accompli and this Court will not H 426 SUPREME COURT REPORTS (2006] 2 S.C.R. A have any option but to deem it legal. (457-8( B Virender Gaur v. State of Haryana, (1996( 2 SCC 577, relied on. Gayatri Singh, Kerban Ankleswaria and Colins Gonsalves: "The Environmental Activities Hand Book·', referred to. 10.3. 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 activitil:s 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. c (457-C( 11. One particular feature of this (:ase was the competing nature of claims by both the parties on the present state of the two tanks and the feasibility of their revival. It would be best, therefore, if reliance is placed on the findings of the expert committee, appointed by this Court which D has considered for factual situation an