THE AUROVILLE FOUNDATION versus NAVROZ KERSASP MODY & ORS (16/03/2025) — Supreme Court headnote

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Summary

Residents of Auroville complained to the National Green Tribunal that the Foundation was felling trees in the Darkali area to build the Crown Road under its approved Master Plan. The Tribunal found the area was not a forest and needed no Forest (Conservation) Act clearance, yet, invoking the precautionary principle, directed a fresh township plan and environmental clearance, halted construction and appointed a joint committee to review the road alignment. The Supreme Court set aside the orders as without jurisdiction: under Sections 14 and 2(1)(m) of the NGT Act the Tribunal can act only on a substantial question relating to environment arising from implementation of a Schedule I enactment, none of which was alleged or shown, and it could not interfere with a Master Plan approved by the competent authority in 2001 and protected by Section 27 of the Auroville Foundation Act, 1988.

Issues

What must be shown before the National Green Tribunal can exercise jurisdiction under Section 14 of the National Green Tribunal Act, 2010.
Whether the Tribunal, after finding that the area was not a forest and that no clearance under the Forest (Conservation) Act, 1980 was required, could nonetheless apply the precautionary principle to direct preparation of a new township plan, prior environmental clearance and a joint committee review of the Crown Road.
Whether the Tribunal could interfere with the implementation of the Auroville Master Plan approved by the competent authority in 2001 and notified in 2010, having regard to the overriding effect of the Auroville Foundation Act, 1988.
Whether the Tribunal could disregard the stand of the Ministry of Environment, Forest and Climate Change that the Auroville township, under construction since before the EIA Notifications of 1994, 2004 and 2006, required no environmental clearance.

Provisions considered

Section 14 read with Section 2(1)(m) and Schedule I, National Green Tribunal Act, 2010Jurisdiction under Section 14 requires (1) a substantial question relating to environment, including enforcement of a legal right relating to environment, as defined in Section 2(1)(m), and (2) that the question arises out of implementation of an enactment specified in Schedule I. Not every environmental grievance is a substantial question; the applicant must specifically allege violation of a particular Schedule I enactment (State of M.P. v. Centre for Environment Protection Research and Development; H.P. Bus-Stand Management Authority v. CEC). The applicants' only allegation, that a deemed forest was being destroyed, was negated by the Tribunal itself, so no substantial question remained. (¶¶ 6, 7, 8, 9, 10, 11, 14, 18)
Section 20, National Green Tribunal Act, 2010The Tribunal must apply the principles of sustainable development, the precautionary principle and the polluter pays principle when passing orders, but these principles cannot be used to assume jurisdiction where no substantial question relating to environment arising from a Schedule I enactment is shown; invoking the precautionary principle in 'exceptional circumstances' to review an approved Master Plan was outside the Tribunal's jurisdiction. (¶¶ 6, 12, 14, 17, 18)
Requirement of prior clearance for use of forest land, Forest (Conservation) Act, 1980The Tribunal found that the Darkali area was not shown as forest in any Government document and was a man-made plantation, so it was not a forest within T.N. Godavarman and no clearance under the Act was required; the Supreme Court relied on this finding to hold that the applicants' sole Schedule I allegation had been negated. (¶¶ 5, 10, 11)
Sections 17(e) and 19(2)(c), Auroville Foundation Act, 1988The statutory Master Plan contemplated by these provisions was approved by the Governing Board in 1999, by the Town and Country Planning Organisation on 15.02.2001 and notified in the Gazette on 28.08.2010; having attained statutory force and finality, and with over 2,000 constructions since, its implementation could not be reopened by the Tribunal. (¶¶ 4, 12, 13)
Section 27, Auroville Foundation Act, 1988The Act is a special enactment whose provisions have effect notwithstanding anything inconsistent in any other law or in any decree or order of any court, tribunal or authority; because of this overriding effect too, the Tribunal's direction to prepare a new township plan, issued without jurisdiction under Section 14 of the NGT Act, was untenable. (¶ 13)
Articles 14, 19 and 21, Constitution of IndiaThe right to a clean environment is a fundamental right under Articles 14 and 21, but the right to development equally claims priority under Articles 14, 19 and 21; sustainable development, treated as an integral part of life under Article 21 (N.D. Jayal), requires a balance between the two (Vellore Citizens Welfare Forum; Essar Oil v. Halar Utkarsh Samiti). (¶¶ 15, 16, 17)

Held

For the Tribunal to exercise jurisdiction under Section 14 of the NGT Act, the applicant must show a substantial question relating to environment within Section 2(1)(m) and that it arises out of the implementation of an enactment specified in Schedule I; although strict rules of evidence do not apply, the application must specifically allege violation of a particular Schedule I enactment. Every environmental grievance is not a substantial question. (¶¶ 7, 8, 9)
Having itself held that the area was not a forest and that no clearance under the Forest (Conservation) Act, 1980 was needed, the Tribunal could not proceed, under the guise of applying the precautionary principle in exceptional circumstances, to appoint a joint committee to revisit the road's width and alignment and to direct the Foundation to prepare a fresh township plan; this was an entry into the restricted domain of judicial review and interference with a Master Plan already approved by the competent authority in 2001. (¶¶ 11, 12, 13, 14)
The Master Plan approved in 2001 and notified in 2010 has statutory force and finality, and the Auroville Foundation Act, 1988, as a special Act with overriding effect under Section 27, prevails over any inconsistent order of a court or tribunal; a direction to prepare a new township plan, issued without jurisdiction under Section 14 of the NGT Act, is untenable in law. (¶¶ 12, 13)
The Tribunal, without any material on record, could not brush aside the affidavit of the Ministry of Environment, Forest and Climate Change that the township was under construction well before the EIA Notification of 1994 and its 2004 amendment, was not a new project, and involved no change in scope attracting the EIA Notification, 2006; directing prior environmental clearance in those circumstances fell outside the Tribunal's jurisdiction, the impugned order not identifying any provision of any Schedule I enactment that was violated. (¶¶ 5, 14)
While the precautionary and polluter-pays principles are part of Indian environmental law and the right to a clean environment is a fundamental right, the right to development also claims priority under Articles 14, 19 and 21; sustainable development requires a golden balance between the two, and neither can be sacrificed at the altar of the other. (¶¶ 15, 16, 17)

Result

Appeals allowed; the National Green Tribunal's judgment dated 28.04.2022 in O.A. No. 239/2021 and interim order dated 27.07.2022 in M.A. No. 6/2022 quashed and set aside as without jurisdiction and legally untenable.