A Division Bench of Madras High Court headed by Chief Justice Mr. Sanjay V. Gangapurwala and Mr. Justice D. Bharatha Chakravarthy set aside the standing order of 1st June 2022 constituting the Auroville Town Development Council (ATDC) by the Secretariat of Auroville Foundation .
In the "Result" of the 34 page order of today 15th March 2024 on a writ petition filed on 16th August 2022 by Natasha Storey, resident of Auroville, the Court pronounced that
(i) The impugned Notification No.AF/M/63/2022-23, dated 01.06.2022 containing Standing Order No.01/2022 issued by the respondent is set aside;
(ii) However, it will be open for the respondent Foundation, through its Governing Board, to frame fresh regulations in tune with the provision of the Act and the observations made herein;
The following are the important observations in the Court's order:
𝟏. 𝐑𝐞𝐬𝐢𝐝𝐞𝐧𝐭𝐬 participation is the basis; they shall participate in planning, implementation and resource mobilisation for the Master Plan
The implementation of the Master Plan is entrusted with the ATDC as per paragraph No. 2.9.6 [of the Master Plan] and the details are mentioned in Appendix V. Appendix V is an organogram laying out the organisational structure for the Master Plan. From the same, it would be clear that the residents' participation is the basis. The residents shall participate in town planning and urban design, infrastructure construction maintenance and applied research on sustainable development which form part of the planning group. The residents should also participate in the implementation and monitoring group and the resource mobilisation and funding group. All three groups function under the Town Development Council. Thus, it can be seen that the ATDC is the authority that implements the Master Plan on the ground in all spheres i.e., planning, implementation and resource mobilisation.
𝟐. 𝐓𝐡𝐞 𝐆𝐨𝐯𝐞𝐫𝐧𝐢𝐧𝐠 𝐁𝐨𝐚𝐫𝐝 𝐢𝐬 𝐩𝐥𝐚𝐜𝐞𝐝 𝐨𝐧 𝐚 𝐡𝐢𝐠𝐡𝐞𝐫 𝐩𝐞𝐝𝐞𝐬𝐭𝐚𝐥 𝐢𝐧 𝐭𝐡𝐞 𝐬𝐞𝐧𝐬𝐞 𝐭𝐡𝐚𝐭 𝐢𝐭 𝐬𝐮𝐩𝐞𝐫𝐯𝐢𝐬𝐞𝐬 𝐚𝐥𝐥 𝐭𝐡𝐞 𝐚𝐜𝐭𝐢𝐯𝐢𝐭𝐢𝐞𝐬 𝐚𝐧𝐝 𝐚𝐥𝐬𝐨 𝐢𝐬 𝐭𝐡𝐞 𝐮𝐥𝐭𝐢𝐦𝐚𝐭𝐞 𝐝𝐞𝐜𝐢𝐬𝐢𝐨𝐧-𝐦𝐚𝐤𝐢𝐧𝐠 𝐚𝐮𝐭𝐡𝐨𝐫𝐢𝐭𝐲
It can be seen that of all the three organs of the foundation, the Governing Board is placed on a higher pedestal in the sense that it supervises all the activities and also is the ultimate decision-making authority. The performance of the functions required by the Act and all the activities relating to the residents of Auroville are vested with the Residents' Assembly under Section 19 of the Act. It can be seen that it is the Residents' Assembly that has to carry out those functions and day-to-day activities, not directly by itself, but, by aiding and advising the Governing Board.
𝟑. 𝐌𝐞𝐦𝐛𝐞𝐫𝐬 𝐨𝐟 𝐀𝐓𝐃𝐂 𝐜𝐚𝐧𝐧𝐨𝐭 𝐛𝐞 𝐚𝐩𝐩𝐨𝐢𝐧𝐭𝐞𝐝 𝐰𝐢𝐭𝐡𝐨𝐮𝐭 𝐭𝐡𝐞 𝐚𝐝𝐯𝐢𝐜𝐞 𝐚𝐧𝐝 𝐜𝐨𝐧𝐬𝐮𝐥𝐭𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐭𝐡𝐞 𝐑𝐞𝐬𝐢𝐝𝐞𝐧𝐭𝐬 𝐀𝐬𝐬𝐞𝐦𝐛𝐥𝐲
The impugned Standing Orders grant power to the Governing Board and further, authorising the Secretary of the Governing Board to appoint any person as a member of the ATDC without the advice and consultation of the Residents' Assembly, is ultra vires the Act.
𝟒. 𝐓𝐞𝐜𝐡𝐧𝐢𝐜𝐚𝐥 𝐦𝐞𝐦𝐛𝐞𝐫𝐬 𝐰𝐡𝐨 𝐦𝐚𝐲 𝐛𝐞 𝐞𝐱𝐩𝐞𝐫𝐭𝐬 𝐢𝐧 𝐭𝐨𝐰𝐧 𝐩𝐥𝐚𝐧𝐧𝐢𝐧𝐠 𝐞𝐭𝐜. 𝐜𝐚𝐧 𝐛𝐞 𝐚𝐩𝐩𝐨𝐢𝐧𝐭𝐞𝐝 𝐚𝐬 𝐦𝐞𝐦𝐛𝐞𝐫𝐬 𝐨𝐟 𝐀𝐓𝐃𝐂 𝐨𝐧𝐥𝐲 𝐢𝐧 𝐚𝐝𝐝𝐢𝐭𝐢𝐨𝐧 𝐭𝐨 𝐭𝐡𝐞 𝐑𝐞𝐬𝐢𝐝𝐞𝐧𝐭 𝐌𝐞𝐦𝐛𝐞𝐫𝐬
While we agree with the contention of the learned Additional Solicitor General of India that the ATDC may require technical members who may be experts in town planning etc., such technical members can only be in addition to the Resident members and thus, Clause - 1 of the Standing Order does not even lay down residence or technical expertise as a criterion for members and thus falls foul of the Act and therefore, the impugned Standing Order is violative of Section 32(1) of the Act.
𝟓. 𝐂𝐨𝐧𝐬𝐭𝐢𝐭𝐮𝐭𝐢𝐧𝐠 𝐚 𝐧𝐞𝐰 𝐛𝐨𝐝𝐲 𝐜𝐚𝐥𝐥𝐞𝐝 𝐚𝐧 𝐀𝐝𝐯𝐢𝐬𝐨𝐫𝐲 𝐆𝐫𝐨𝐮𝐩 𝐭𝐨 𝐚𝐝𝐯𝐢𝐬𝐞 𝐭𝐡𝐞 𝐆𝐨𝐯𝐞𝐫𝐧𝐢𝐧𝐠 𝐁𝐨𝐚𝐫𝐝 𝐚𝐧𝐝 𝐭𝐡𝐞 𝐀𝐓𝐃𝐂 𝐨𝐧 𝐦𝐚𝐭𝐭𝐞𝐫𝐬 𝐫𝐞𝐥𝐚𝐭𝐢𝐧𝐠 𝐭𝐨 𝐭𝐡𝐞 𝐌𝐚𝐬𝐭𝐞𝐫 𝐏𝐥𝐚𝐧 𝐢𝐬 𝐢𝐥𝐥𝐞𝐠𝐚𝐥 𝐛𝐞𝐜𝐚𝐮𝐬𝐞 𝐭𝐡𝐞 𝐀𝐜𝐭 𝐞𝐧𝐣𝐨𝐢𝐧𝐬 𝐭𝐡𝐚𝐭 𝐭𝐡𝐞 𝐑𝐞𝐬𝐢𝐝𝐞𝐧𝐭𝐬 𝐀𝐬𝐬𝐞𝐦𝐛𝐥𝐲 𝐬𝐡𝐚𝐥𝐥 𝐚𝐝𝐯𝐢𝐬𝐞 𝐭𝐡𝐞 𝐆𝐨𝐯𝐞𝐫𝐧𝐢𝐧𝐠 𝐁𝐨𝐚𝐫𝐝
Clause - 8 of the Standing Order constitutes a new body called an Advisory Group to advise the Governing Board and the Council on matters relating to the Auroville Master Plan. Clause - 9 provides for the terms of officers and members of the Advisory Group. It can be seen that such an Advisory Group also need not be necessarily from the residents or by the Residents' Assembly. Therefore, when Section 19 of the Act specifically enjoins that the Residents' Assembly shall advise the Governing Board; Clauses - 8 and 9 of the impugned Standing Order overreach and supplant Section 19 of the Act by constituting a different body known as the Advisory Group. Therefore, we find that the Standing Order is ultra vires the Act.
𝟔. 𝐒𝐞𝐥𝐞𝐜𝐭𝐢𝐨𝐧/𝐧𝐨𝐦𝐢𝐧𝐚𝐭𝐢𝐨𝐧 𝐨𝐟 𝐦𝐞𝐦𝐛𝐞𝐫𝐬 𝐨𝐟 𝐀𝐓𝐃𝐂 𝐜𝐚𝐧 𝐨𝐧𝐥𝐲 𝐛𝐞 𝐛𝐲 𝐭𝐡𝐞 𝐑𝐞𝐬𝐢𝐝𝐞𝐧𝐭𝐬’ 𝐀𝐬𝐬𝐞𝐦𝐛𝐥𝐲 𝐛𝐮𝐭 𝐭𝐡𝐞 𝐆𝐨𝐯𝐞𝐫𝐧𝐢𝐧𝐠 𝐁𝐨𝐚𝐫𝐝 𝐦𝐚𝐲 𝐫𝐞𝐣𝐞𝐜𝐭 𝐚 𝐩𝐚𝐫𝐭𝐢𝐜𝐮𝐥𝐚𝐫 𝐩𝐞𝐫𝐬𝐨𝐧
The Governing Board has powers to frame Standing Orders. It can prescribe the qualifications of the Members to be chosen by the Residents' Assembly as also provide for technical members. However, the selection/nomination of the said members can only be by the Residents' Assembly, though it may ultimately lie within the powers of the Governing Board to reject a nomination or selection of a particular person. The Governing Board arrogates the entire powers of the Residents' Assembly to itself and virtually nullifies its existence and role vis-a-vis the Master Plan.
𝟕. 𝐓𝐡𝐞 𝐆𝐨𝐯𝐞𝐫𝐧𝐢𝐧𝐠 𝐁𝐨𝐚𝐫𝐝 𝐜𝐚𝐧𝐧𝐨𝐭 𝐩𝐞𝐫𝐦𝐚𝐧𝐞𝐧𝐭𝐥𝐲 𝐭𝐚𝐤𝐞 𝐚𝐰𝐚𝐲 𝐭𝐡𝐞 functions 𝐨𝐟 𝐭𝐡𝐞 𝐨𝐭𝐡𝐞𝐫 𝐚𝐫𝐦𝐬 𝐨𝐟 𝐭𝐡𝐞 𝐟𝐨𝐮𝐧𝐝𝐚𝐭𝐢𝐨𝐧 𝐧𝐚𝐦𝐞𝐥𝐲, 𝐭𝐡𝐞 𝐑𝐞𝐬𝐢𝐝𝐞𝐧𝐭𝐬 𝐀𝐬𝐬𝐞𝐦𝐛𝐥𝐲 𝐚𝐧𝐝 𝐭𝐡𝐞 𝐈𝐧𝐭𝐞𝐫𝐧𝐚𝐭𝐢𝐨𝐧𝐚𝐥 𝐀𝐝𝐯𝐢𝐬𝐨𝐫𝐲 𝐂𝐨𝐮𝐧𝐜𝐢𝐥
Reliance [is] placed on Section 11(3) of the Act to contend that the Governing Board can also discharge all the functions of the other organs. The provisions of the Act have to be read harmoniously. Overall power of superintendence is granted to the Governing Board. In a particular instance, if it finds that the function is not carried properly out by the Residents' Assembly or the Advisory Council, or when they omit to carry out their duties, the Governing Board is not powerless. While exercising the general powers of superintendence, in a given situation, it can carry on the functions of the other two limbs also. Section 11(3) of the Act has to be read in this context. Not if the Governing Board can frame Standing Orders and permanently take away the functions of the other arms of the foundation namely, the Residents' Assembly or the Advisory Council. Nor it can entrust such functions to the Secretary of the Foundation.
Source: Website of Madras High Court