Read Time: 15 minutes

Synopsis

The Supreme Court recently observed that “Precautionary Principle” and the “Polluter Pays Principle” are part of the environmental law of the country. However, it is equally true that while the right to clean environment is a guaranteed fundamental right under Articles 14 and 21 of the Constitution, the right to development through industrialisation equally claims priority under fundamental rights particularly under Articles 14,19 and 21 of the Constitution.   

A bench of Justices Bela M Trivedi and Prasanna B Varale emphasised a need for “sustainable development” harmonising and striking a golden balance between the right to development and the right to clean environment.

Court allowed an appeal filed by the Auroville Foundation against the National Green Tribunals judgment of April 28, 2022, with regard to a township in Pondicherry, after finding that no substantial question relating to the environment had arisen, nor violation of any of the enactments specified in Schedule-I was alleged.

The tribunal had committed gross error in assuming the jurisdiction and giving directions untenable in law, it said. The court quashed the orders passed by the tribunal for being without jurisdiction and legally untenable.  

Court noted the Ministry of Environment, Forest and Climate Change in its affidavit filed before the tribunal had made its stand very clear that the Auroville Township Project was under construction much before the EIA Notification, 1994 and its amendment in 2004 and therefore could not be considered as a new Project under the said Notification of 2004. It was also made clear that there was no change in the scope of the township project from the original master plan and as such, the township project would not affect the provisions of EIA Notification, 2006 and its amendments for the grant of environment clearance, the court noted.

"Again curiously, the Tribunal without any material on record, brushed aside the said stand taken by MoEF&CC in its affidavit, by holding that any further activity to be done by the appellant Foundation, could be permitted to be carried out only after obtaining necessary prior Environmental Clearance, and then proceeded to appoint the Joint Committee to inspect the area in question and to ascertain whether the width of the Road at suitable places could be reduced so that the number of trees to be cut can be minimized," the bench said. 

The court pointed out that such directions clearly fell outside the purview of the jurisdiction of the tribunal particularly when there was no substantial question relating to the environment was shown to have arisen in implementation of any of the enactments specified in Schedule I appended to the NGT Act. 

"There is no whisper in the impugned order as to which of the provision and which of the enactment specified in Schedule I was violated," the court said.

Referring to Vellore Citizens Welfare Forum Vs Union of India & Others (1996), the bench pointed out that it was stated that the traditional concept that development and ecology are opposed to each other is no longer acceptable. 

“Sustainable Development” has been accepted as a viable concept to eradicate poverty and improve the quality of human life, while living within the carrying capacity of supporting ecosystems, it said. “Sustainable Development” as defined by Brundtland Report means “development that meets the needs of the present without compromising the ability of the future generations to meet their own needs.” The “Sustainable Development” therefore has been held to be a balancing concept between Ecology and Development as a part of the customary international law, the bench said.  

In the case, the bench found the tribunal had completely misdirected itself by entering into the restricted domain of judicial review under the guise of applying “Precautionary Principle” in extraordinary circumstances, and in interfering with the implementation of Master Plan which was already approved by the competent Authority way back in the year 2001.  

The court also pointed out that the said master plan having been approved by the competent authority as back as in 2001 had attained a statutory force and a finality.  

The bench also noted there were about more than 2000 substantial constructions/ developments, which had taken place in Auroville since then till this date. 

The construction of roads as mentioned in the said approved master plan including the Crown road, a road encircling the centre of the township and an outer ring road, being on the verge of completion, except few patches, which could not be completed because of the obstructions caused by the disgruntled residents like the respondents, the tribunal thoroughly misdirected itself by directing the appellant to prepare a proper township plan, the bench said. 

The court noted that it was also significant to note that the Auroville Foundation Act is a special Act enacted to provide for the acquisition and transfer of the undertakings of Auroville and to vest such undertakings in a foundation established for the purpose with a view to making long term arrangements for the better management and further development of Auroville in accordance with its Original Charter and for the purpose connected therewith and incidental thereto. 

As per Section 27 of the said Act, the provisions of the said Act have the effect notwithstanding anything inconsistent therewith contained in any other law for time being in force or in any instrument having effect by virtue of any law other than the Act, or in any decree or order of any court, tribunal or other authority. 

"Thus, in view of the overriding effect of AF Act also the impugned direction issued by the Tribunal without any jurisdiction as circumscribed under Section 14 of the NGT Act, would not be tenable at law," the bench said.    

The court also pointed out after having held that the area in question could not be treated as a forest and that there was no clearance required under the Forest (Conservation) Act, the tribunal proceeded further applying the “Precautionary Principle” and appointed a joint committee to inspect the area in question and ascertain whether any modification could be made in the width of the road, and further directed the appellant-foundation to prepare a proper township plan in respect of the area in their possession and in respect of the area visualized by the “Mother”.   

In 1965, the “Mother” (Mirra Alfassa, a French lady), a spiritual collaborator of Sri Aurobindo (a Spiritual reformer, Philosopher and Educationist), envisioned to launch the project of Auroville, with an aim to establish an international universal township, where men and women of all countries are able to live in peace and harmony, above all creeds, all politics and all nationalities and to realise human unity. The project of Auroville was formerly inaugurated by the “Mother” on February 28, 1968.   

The project Auroville was legally started as the project of a charitable organization, “The Sri Aurobindo Society” in Pondicherry, which was created to diffuse Sri Aurobindo’s thoughts.

After the “Mother” passed away in 1973, the situation changed, and a number of complaints came to be received by the Government of India with regard to the mismanagement in the working of the Sri Aurobindo Society. Following the requests by the majority of Auroville residents, the Government of India issued a Presidential Ordinance called the Auroville (Emergency Provisions) Ordinance, 1980, later replaced by the Auroville (Emergency Provisions) Act, 1980. Finally, the Government of India created a unique status for Auroville by passing the Auroville Foundation Act, 1988.

Case Title: The Auroville Foundation Vs Navroj Kersasp Mody & Ors