A R U N A C H A L A S A M U D R A - Legal - Environmental Concerns and the Courts

The world is a complex web of loves, hates, joys, greed and hope and we traverse it in our different ways, always hoping for that reconciliation which will allow the earth to prosper. It is in this context that I raise the problem of the court case which pertains to the greening of Arunachala.

The Case is known in the Supreme Court of India, as the "Civil Appellate Jurisdiction, Nos 12443-47" and it arose out of the final judgement and order, dated 11.5.2001, passed by the High Court of Judicature at Madras in writ petition no 17109/97, 7396,7397,7398 and 7400 of 1998.

The petitioner was the Commissioner, Tiruvannamalai Municipality and the respondents were Arunachala Giri Pradakshina Samithi and others.

The case in the Madras High Court centres around the fact that the government of Tamil Nadu had provided guidelines for the preservation and maintenance and development of 38 temple towns, by G.O.Ms No 163, Rural development and Local Administration dated 6.7.93.

In 1997, writ petitions under Article 226 of the Constitution of India were filed before the High Court of Judicature at Madras, by the respondents as a Public Interest Litigation. "It was alleged that the public in general and the followers of Lord Arunachala and innumerable persons who go around the Hill found that there are encroachments, unauthorized constructions, deviations, illegal felling of trees, destruction and devastation of water tanks. Caves, temples, ashrams and other religious places in the Hill Arunachala, and in the Holy town of Thiruvannamalai, and the monuments have to be protected, by removing the encroachment, by restricting and regulating the constructions. It is submitted that the entire Holy Pathway and Holy Hill be protected, and requests various reliefs/directions against the petitioner and various public authorities".

In March 1999, the Municipal Commissioner argued that there was a bias in the manner of description. "It was submitted that the first respondent has invented the Holy Pathway and the Holy Hill Arunachala afresh without any basis or record. It was submitted that the petitioner as a Civic Body is taking action to control development." The petitioned argued that there were no temple encroachments at Arunachaleswarar temple except the shops which were permitted by the temple authorities. The other petitioners against the Arunachala Giri Pradakshina society and others were the Aathaiandal Village Panchayat, Adi Annamalai Panchayat, and Adaiyur Village Panchayat; the Hindu Religious and Charitable Endowment also filed its oppositions against the respondent.

In May 1999, the High Court appointed an expert body to provide a report to the court, with suggestions regarding maintenance, and preservation, of the heritage town of Tiruvannamalai specific attention on the pathway around the hill. Mr. T.S. Arunachalam, Acting Chief Justice of the High Court Judicature at Madras, was appointed as Chairman of the Body. Justice Arunachalam was to be assisted by the District Collector, who was to be the Secretary of the Expert Body, and also by an architect, an IAS officer, an archaeologist, by Conservator of forests, by Secretary to Government, Municipal Administration and water supply Department, by the P.A., to the District Collector, by the Director of Town and Country Planning, by the Director of Municipal Administration, by the Executive Officer and Joint Commissioner of Annamalaiyar Temple, The Municipal Commissioner, The Executive officers, Presidents of Village Panchayats of Anapuandan, Athiyandal, Adi Annamalai, Vengikul and Adaiyur. Also by the Executive Engineer, Tiruvannamalai, Annamalai Reforestation Society, Executive Engineer State Agricultural Engineering Department, District Revenue officer, Revenue Divisional officer, Deputy Commissioner, HR and CE, Engineers with Highways and Rural works having jurisdiction along the Srepradakshina Salai and the surrounding regional transport officer.

There were in the expert committee representatives of important asramams, such as one representative each of Yogi Ramsurat Kumar, Ramana Maharshi, Seshadri Swamigal and Gowthana Ashram. Three prominent public persons, who had an interest in conservation and maintenance, would be nominated by the expert body.

The records of the case describe the consequence of setting up the expert body thus:

8.12.1999. The expert body exceeded its scope and gave its report to the High Court and suggested that a single authority should be created, which should have power to implement the plan not only in Thiruvannamalai town, but in all other Panchayats falling within the limits of the master plan on the lines of the Chennai Metropolitan Development Authority. A District Heritage Conservation Act (Bill) to ensure protection and restoration of all heritage buildings, precincts and areas, until the Bill becomes an Act. The Town Planning Authority will act on the basis of recommendations of the District Heritage Conservation Committee, in all matters relating to heritage. A Heritage Conservation Fund for financing projects identified by the District Heritage Conservation Committee has to be set up and the Committee can decide what will be the sources of this inflow for this fund. The Expert Body suggested in all 29 suggestions. In all it suggested changes in existing building rules, provision of some basic infrastructure.

29.2.2000. The Report of the Expert Body was placed before the petitioner Council pursuant to the order passed by the Hon'ble High Court.

2.5.2001. The Government of Tamil Nadu filed its objection to the draft scheme stating that the present scheme is against the Constitution of India. It tries to set up an executive authority endowed with enormous powers and which encroaches into the powers and responsibilities of the Constitutional Body. On the whole, the scheme appears to allocate all land use, water and sanitation functions to the committee. As per the XII schedule of the Constitution of India, these are functions of Municipalities and they cannot be transferred to a Committee, which has nominated members only. The scheme is both impractical and unnecessary to expect all Departments of Government to function under the directions of this Committee. The Committee cannot be allowed to function as an organization which is beyond existing legislation and deemed to function like a super power.

Clearly, there is a substantial shift in this note, from a position reached in the Madras High Court where respondent and petitioners accepted that they had interests in common, which was the protection and maintenance of a holy town. Here questions of authority and hierarchy are being raised, and while the Expert Body consisted of members who were specialists in their field, belonging to the government, both state and central, along with townspeople, and ashram delegates, the actual praxis of power is the problem now. Can the offices of government be supervised and directed by a committee proposed by the judiciary? The opposition to the committee is put forward very sharply in the court record:

30.3.2001. The petitioner Municipality filed an affidavit stating that the proposed scheme authorizing so much powers to such committees will make serious inroads into the powers of the Municipal Council and the local authorities. The Committees proposed are contrary to the provisions of the Tamil Nadu District Municipalities Act, 1920 and these Committees will run parallel to the Municipal Council and the same is against the provision of Article 243 of the constitution of India.

The assumption that the Municipality makes as petitioner is that the High Court has exceeded its jurisdictions and taken on a privilege that is associated with Executive, Legislature and Judiciary.

Interestingly, the court proceedings in the High Court of Judicature at Madras, on Friday 11th May, 2001, has a preface: Order passed by Justice Jagadeesan, Hon Justice E. Padmanabhan states,

"The Law in the past was directed unconsciously and it should now be directed consciously, to the same end as custom, manners, religion and other types of social control, namely with the preservation, furtherance and transmission of civilization."

It is this conflict between governance by judiciary and governance by state institution that sets up a dialectic. Public Interest Litigation, according to one of the lawyers who fought the case for Arunachala Pradakshina Samithi, is always vulnerable at a time when individuals may have honourable intentions but not the staying power to keep with a case till the end.

Since it was a matter of encroachment and over-build, all those who had a commercial interest in construction became offensive, and Ramanasramam was visited by a large number of individuals, saying they were townspeople, and if Asramam did not withdraw its case, there would be trouble. According to Arunagiri, an Australian ecologist who has lived in Thiruvannamalai for thirty years, it was very frightening for residents. I quote from her letters to me,

A recent move on the part of Devotees to the mountain to seek legal protection for the sacred mountain has recently failed entirely in the Supreme Court, paving the way for the building of hotels and tourist facilities on private lands adjacent to the mountains. Someone said the opposition of the town was so tremendous, that the ASI did a deal with them: they would stand back if the Municipal Council started to keep the town clean.

The real question was of livelihood, and if the pristine quality of conservation was to be put into institutional space and it's guardianship assured, then a great deal of how people actually made a living from the merchandise of objects, for sale to pilgrims would decline. On one of my visits to Tiruvannamalai in April 2007, I visited the house of a child who wished to try out her English language skills with me. She excitedly called out to her friends that I was a teacher, and the whole platoon followed me. She filled my water bottle from the Koddam, kept in a very clean kitchen. The whole house had been renovated, for it was previously a hovel, it was now tiled and cemented and white washed. I asked her ancient grandmother where they got the money from.

"Bank loan!"
"How do you earn?" She said, "From selling things to visitors." Curiously, the petitioner in the Supreme Court, the Municipal Commissioner, argues that pilgrimage cannot be confused with tourism, and that Tiruvannamalai is a sacred town, where the livelihood of people is at stake. He describes archaeological survey operatives, or tourism development 'intrusion', as having to do with visitors who are not pilgrims. That is not his concern. He also provides the Supreme Court with photographs of a Tiruvannamalai at the time of day, when there are few people on the street, and the roads cleared of garbage, to show how well the Municipality deals with crowds and refuse!

In the Madras High Court, the Municipality had stated that,

It was bound to grant permission for the construction under the provisions of the Tamil Nadu District Municipalities Act, 1920 and the rules framed thereunder. There is no authority whatsoever to prevent the construction on private lands adjoining the Giripradakshina pathway and beyond the 50 metres of Giripradakshina pathway and also there is no authority to limit the height of construction not exceeding 6 metres either adjoining the Giripradakshina pathway or in the remaining portion of the path and up to 50 metres beyond the Giripradakshina pathway against the principles contained in the Heritage Act and the guidelines issued thereunder in G.O.Ms no 22. MAWS Department dated 30.1.1997.

The Municipality argued that the shops are permitted by temple authorities, and that the Municipality is discharging it's duties.
The Honourable Judges wrote,

Admitted Facts and stand of petitioners and respondents.
On the facts of the case it is clear that there is no controversy; besides it is almost admitted by everyone, including the respondents, about the existence of the Holy Hill Arunachala, which has been personified as Lord Shiva, and the existence of Giripradakshina Path, over which millions go around the Holy Hill, commencing from sixteen pillar mandapam of the eastern entrance of the temple, and ending with the very same sixteen pillar mandapam. Everyone concerned whole heartedly supported and expressed that either the State or Central Authorities should step in to regulate the entire area, remove the encroachments, regulate the construction of buildings so that visibility of the Holy Hill is not affected, when it is viewed from any corner of the Giripradakshina path, besides the requirement of the necessary basic amenities or facilities to pilgrims and the villages and the residents who reside on either side of the Giripradakshina path as well as the Tiruvannamalai Municipal limits. Every one anxiously expressed that the entire path way should be maintained free from all encroachments whatsoever, and all the obstructions and encroachments between the pathway and the Holy Hill have to be removed, and regulations have to be brought in with respect to the height of the building or location of the buildings, and as to the using of the space and leaving of vacant place abutting the Giripradakshina path on both sides, and with respect to various measures to be taken in this respect to preserve the Holiness and sanctity of the Holy Hill Arunachala.

The Honourable Judges asked the State Government to follow up the consensus reached by both parties that the Holy Hill needed protection.

During the entire hearing, everyone has supported the move, but only had different views as to the steps to be taken, or extent to which restrictions are to be imposed, and with respect to the details of restriction to be imposed and the regulations to be followed. In fact we called upon the learned Additional Advocate General, to get instructions as to whether the State Government is in a position to take up immediate legislation for the area in question which would give quietus to all the issues. But the learned Additional Advocate General on instructions expressed the State government's inability to bring forth a comprehensive legislation and the response of the State government, so to say, is not only lukewarm but it has failed to comprehend the problem and it had failed to respond.
[From file titled, Supreme Court Of India, Civil Appellate Jurisdiction, Nos 12443-47 Commissioner Tiruvannamalai vs. Arunachal Giri Pradakshina Samithi and ORS]

The judgement continues;

However in principle though the state govt. agrees they are not willing to take up the appropriate legislation, and time granted in this respect also had not elicited any response. In the light of the said background this Court on 4.5.1999 passed a detailed order with the consent of the petitioners as well as all the respondents and everyone concerned. The said direction is a consent direct as everyone agreed that Giripradakshina running to the length of 16 kms or thereabout from Annamalaiyar Temple proceeding along with Thiruvoodal Street, Chengam Road, Pei Gopura Street, and Soma Vara Kula Street etc, and ending at the same starting point of Annamalaiyar Temple has to be cleared from all encroachments and unauthorized constructions and a comprehensive scheme has to be framed for the area and Giripradakshina Salai in the larger interest of the public as well as in the interest of residents of Tiruvannamalai Town as well as Villages in and around the Hill. (ibid 42)

The judges reiterate that both parties are agreed on the sanctity of the hill. This very sanctity will be disrupted by unregulated construction, haphazard and a health risk to all. They note that,

Mr. Sriram Panchu, Senior Counsel appearing for one of the writ petitioners persuaded this Court to frame a scheme so that the entire locality could be protected not only from encroachment, unauthorized construction, deviations, but also the cleanness of the town and environment could be saved from further deterioration ( ibid 42)

In furtherance of the objectives resolved in consensus, the Hon. Judges, requested a study of Tiruvannamalai which would be presented by the Expert Body I have already described in previous sections of the conclusion. One of the recommendations was certainly forbidding megaphones in public places! The judges did see that the townspeople would have to make sacrifices for the greater good. (ibid 78)

The Arunachalam Committee gave an extremely detailed report, and as a memento to town planning, it is a valuable record for urban historians and sociologists. The Tiruvannamalai Municipality reacted sharply. The court records state,

In fact the counsel on record for Tiruvannamalai Municipality attended all the hearings but did not object to the proposal to frame a scheme. The counsel for Municipality, the State, the Centre were called upon to get instruction from the respective authorities, whether they are willing to take comprehensive measures, but all of them despite opportunity failed to avail the opportunity, which would exhibit their failure to discharge the public and statutory functions. Further, all of them also represented that this court may frame appropriate scheme. In the light of the above, we are unable to appreciate or sustain the belated objection raised on behalf of their municipality as if their power or jurisdiction is being reduced. Factually, it is not so as none of the powers of the Municipality as conferred by the District Municipalities Act or the Constitutional provision are being interfered since the provisions of the Scheme is in addition to the statutory provisions. We overrule the objections and herby frame the Scheme appended herewith which shall be implemented by everyone (ibid 79)

When it went to the Supreme Court the Municipal Commissioner basically communicated that it was not his place to take orders from a parallel body, the Expert Committee, which presented itself as a super power. The Municipality's jurisdiction had been replaced. When the suggestion that the Central government believed that heritage and tourism were important issues, the Commissioner made a distinction between tourists and devotees, saying that their needs were different. The violence of the agitators who wished to build guest houses and adjuncts for commercial reasons at Ramanasramam was such that the PIL was withdrawn.

One resident of Ramana Ashram told Aruna Apeethagiri and me that,
"At least the Municipality did not get to build their offices on the Chengam road, otherwise imagine the bottleneck that would have been created with people from all over the hinterland appearing with their papers for audience with the Commissioner and jostling with pilgrims on this narrow road!"

What is interesting for me, as a reader of these court records, is how much of faith is captured even within the secular jurisdiction of the Indian courts. The litigants, lawyers and judges also accept the sacred manifestation of the divine, and the right of the people to worship and live in a territory which is infused by the heady sense of both love and maya. But the debates around globalization, modernization, small town ethos and urban resilience in the face of dramatic changes have to be negotiated with. World Heritage status for one of the most ancient pilgrim centres, where nature and culture are intertwined inseparably, is the only possible way of escaping an untrammeled situation of crowds and encroachments. Tourism, pilgrimage and globalization are the keywords for understanding many such centres, and we need to focus on the problems that they set up for town and country relations, for landscaping, merchandise, town control and the loss of ecologically sustainable lands and forests.

Excerpt from, "The Children of Nature: The Life and Legacy of Ramana Maharshi, Roli, Delhi 2010, by Susan Viswanathan."

[All legal documents cited in the above narrative are available as PDFs in this section of Arunachala Samudra].