M J Antony: In defence of environment

OUT OF COURT

Several judgements ruled that the need to protect environment has become a priority.

In terms of environment jurisprudence, the past month in the Supreme Court was significant. Judges in different benches of the court delivered four judgements running into more than 400 pages on urban problems, from the viewpoint of environment. The results were varied, but the concern shown by the court for the future development of the cities could not be ignored.

The most prominent of the decisions was Bombay Dyeing & Mfg Ltd vs Bombay Environmental Action Group, affecting Mumbai. The question formulated by the court in this case was: whether any synthesis between environmental aspects and building regulation visa-a-vis the scheme floated by the Board of Industrial and Financial Reconstruction (BIFR) in terms of the provisions of the Sick Industrial Companies (Special Provisions) Act was possible. The Bombay High Court had allowed a public interest petition moved by the environmental action group stalling the sale and development of some 600 acres of land in the heart of the metropolis. The land belonged to 58 defunct textile mills. In one of the most controversial judgements, the Supreme Court reversed the high court judgement and gave the go-ahead for its development according to the regulations set by the Maharashtra government.

But the court did underline that the need to protect environment has become a priority. "At the same time, it is also necessary to promote development, the judgement said. "The harmonisation of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same."

Though there is a debate on whether the court had really harmonised the interests of all sections of society in the Mumbai case, another judgement that preceded it did the task for Tirupathi city in a better way. This judgement, Intellectuals Forum vs State of Andhra Pradesh dealt with two tanks that supplied water to the Tirupathi city for nearly five centuries. Now they have dried up due to overexploitation and uninhibited growth of housing and industries. The city is already situated in a drought-prone area. Meanwhile, the government handed over the dried-up tank bed areas to the state housing board. Several prominent citizens protested against this step, but to no avail. Then the forum took the issue to the high court. It dismissed their objections, taking the stand that urban development could be given primacy over the need to protect environment. The forum then took the issue to the Supreme Court.

The court appointed an expert committee to guide it. The panel concluded that there were no tanks existing at present. They were dead years ago. The reported feeder channels to the tanks were, in fact, localised drainage lines. The Supreme Court said that taking into account the ground realities, the demand of the forum to revive the old glory of the tanks was "wishful thinking". It also ruled that the state government's plan to build residential blocks to provide the "valuable right to shelter" to the people was also unreasonable. It caustically remarked that no one was going to be homeless if houses were not built at the site.

The court then devised a formula that could be followed in similar cases in the future. No further construction shall be allowed in the area. Each house built in the area must provide for roof-top rain water harvesting. Abstraction from the ground should be completely banned. No bore well or tube well should be allowed in the area.

Yet another judgement related to the commercialisation of residential areas in Delhi, a vice affecting every city and township in the country. In M C Mehta vs Union of India, the court noted that there was "flagrant violations of various laws including municipal laws, the master plan and other plans besides the environmental laws." The court felt that it had a constitutional duty to protect the fundamental rights. "What happens when the violators/ abettors of the violations are those who have been entrusted by law with a duty to protect these rights?" the judgement asked, and asserted that the court should intervene urgently to protect the rights. The problem, it pointed out, is not absence of law but its implementation. The court has given certain plan of action for the immediate future, which the municipal authorities have to follow.

The judgement in Mullaperiyar Environmental Protection Forum vs Union of India also highlighted ecological issues, especially in the context of an old and dilapidated dam that might trigger off an epic-size catastrophe. Acting on the advice of a committee, the court allowed the raising of the height of the dam. The rulings in all these cases cannot be described as satisfactory, considering the public reaction to them. But one thing is apparent "" the government and statutory authorities cannot ignore the environmental impact of big projects and possible judicial intervention to assess it.