M J Antony: Environment vs encroachment

OUT OF COURT

Two orders passed by the Supreme Court in recent weeks showed how the courts tread cautiously into the complex field of environment and sustainable development.

The judiciary has declared very often that this is a highly technical field and they would rather prefer the executive to take the burden.

However, as things are, much of the enforcement of environmental laws have to be enforced by the courts. And judges are not unanimous in their approach.

Last week, the Supreme Court faced an outcry from key industries like coal, thermal power generation and pharmaceuticals when more than 200 units were shut down by the government on court orders.

The closure was at the instance of the court, in a public interest petition (Goa Foundation vs Union of India). These industries had not received the environmental clearance as required under law.

On an earlier occasion, the court had admonished the government for not taking action against such units. It had asked the government to take action against the units within 10 days.

While the government returned declaring that it has complied with the order of the court, the industries said that the consequences would be disastrous.

Many units would not run because of shortage of thermal power, drug companies would not be able to meet the export target and even have to cut short production for the domestic market and so on.

Therefore, the Supreme Court stayed the government order closing down the units in various parts of the country for not complying with environmental norms.

The other case was again a public interest petition, moved originally in the Calcutta High Court. In this case, Sushanta Tagore vs Union of India, the Supreme Court judges differed from the decision taken by the high court.

The issue was construction activities by private builders within the Visva Bharati University complex, conceived and established by Rabindranath Tagore.

Under an Act, it was declared as an institution of national importance, specialising in the study and research of different cultures.

In recent times, builders have entered the scene and have reportedly started construction without following the building rules.

The residents of the university moved the high court against the alleged defacement of the environment by encroachment and construction of commercial complexes, disregarding the pollution control regulations.

According to them, the very purpose, tradition and objective for which the university was established were being disregarded. The authorities maintained that the land belonged to the state government.

The land use map has been modified and building plans have been sanctioned. The government has entered into agreements with the builders and, therefore, the constructions were all right.

Accepting the submissions of the government, the high court dismissed the petition.

However, the Supreme Court was not convinced about the constructions as much as the high court. It said that the high court was wrong in holding that there was no public interest in the issue.

It also remarked that the high court's view that the university could not be kept in its original form forever was open to doubt. The state pollution control board had also issued several caveats in this matter.

The Supreme Court said: "Only because some advantage would ensue to the people in general by reason of the proposed development, the same would not mean that the ecology of the place would be sacrificed.

Only because some encroachments have been made and unauthorised buildings have been constructed, the same by itself cannot be a good ground for allowing other construction activities to come up which would be in violation of the provisions of law.

Illegal encroachments, if any, may be removed in accordance with law."

However, some building complexes have already come up and the rest are in advanced stages. Therefore, the Supreme Court did not stop the construction activities presently on.

Thus, the residents have practically lost their cause. These orders show how difficult it is for the judiciary to decide in a firm manner questions regarding environment and development.

The curious turns and twists to the Taj heritage corridor case only go to show that the rulers make the burden of the judiciary heavier, instead of implementing the laws or co-operating with the courts.