Andhra Pradesh High Court - Amravati
Palapati Ravichandra Reddy, vs The Government Of Andhra Pradesh, on 4 September, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
PUBLIC INTEREST LITIGATION No.337 of 2012
ORDER:(Per Hon'ble The Acting Chief Justice) The present writ petition came to be filed in the form of Public Interest Litigation by one Palapati Ravichandra Reddy and three others, residents of Agarala Village, Chandragiri Mandal, Chittoor District, seeking issuance of writ of Mandamus to give suitable directions to the respondents to protect and safeguard Agarala Water Tank, spreading over in Sy.No.209 of Agarala Village, Chandragiri Mandal, Chittoor District and for carrying out necessary repairs to Agarala Water Tank for effective storage of water and for providing water to the agriculture lands under the said tank.
Heard learned counsel for the petitioners, learned Government Pleader for Revenue appearing for the respondents 1 to 5 and learned Government Pleader for Irrigation appearing for the respondents 6 and
7. The averments in the affidavit filed in support of the writ petition show that Agarala tank is situated in Sy.No.209 of Agarala Village, Chandragiri Mandal, Chittoor District, spread over an extent of Ac.20.99 cents, used to grow crops of paddy, sugar cane, ground nut and other commercial crops depending on the continuous water resource. The said tanks were constructed for protection and preservation of water, for providing water to agricultural lands and for drinking purposes. In spite of the fact that the said villagers are encroaching on to the said tank, no action is being taken by the 3rd respondent though several representations are submitted. It is stated that in the year 2011, the 2 District Collector directed the Tahsildar to enquire into the matter to take necessary action. The enquiry conducted by the Tahsildar reveals that as per A-Register of Agarala Village, the said land where the subject tank was situated in Sy.No.209 to an extent of Ac.20.99 cents was classified as 'Cheruvu Poramboke' and it was subdivided into Sy.Nos.209/2 to 209/17 as per the proceedings dated 24.08.1977 and DKT pattas were issued to Scheduled Castes and Scheduled Tribes. Further, an extent of Ac.2.10 cents in Sy.No.209/1 has been subdivided as 'Cheruvu Katta'.
The vacant lands, lakes, rivers etc., are under the direct control of the State and the State has to maintain those rivers, lakes, tanks as stated above by applying the doctrine of public trust and right to life. It is for the State to allot such lands in various circumstances being the custodian of the property of the public. The doctrine of public trust was considered by the Apex Court in M.C.Mehta v. Union of India1 where the Himachal Pradesh State Government had leased out a protected forest area on the bank of river beas to motels, for commercial purposes, the Supreme Court held that the State is more responsible for maintaining natural resources. Similarly, the Apex Court in Subhash Kumar vs. State of Bihar and ors2 held that right to life is a fundamental right which includes the right of enjoyment of pollution free water and air for full enjoyment of life. At the same time, in the guise of sustainable development, the State cannot allow the properties to whomsoever the State likes.
The 42nd amendment to the constitution of India added Article 48A and 51A(g) which comes under the directive principle of State policy and 1 (1997) 2 SCC 653 2 1991 AIR 420 3 the fundamental duties respectively. The Supreme Court of India in Sachidanand Pandey v. State of West Bengal3 stated that the Court is bound to bear in mind the above said articles whenever a case related to environmental problem is brought to the court. In Damodar Rao v. S.O. Municipal Corporation4 the Apex Court held that the environmental pollution and spoliation which is slowly poisoning and polluting the atmosphere should also be regarded as amounting to violation of Article 21 of the Constitution of India.
Similar question came up for consideration before the Apex court in Intellectuals Forum, Tirupathi v. State of A.P. & Ors.5 wherein the Apex Court has considered allotment of tanks known as 'Avilala Tank' and 'Peruru Tank', which are situated in the suburbs of Tirupathi Town, which is a world renowned popular pilgrim centre, to housing board for construction of residential houses to the public, but a social spirited person approached the court for judicial remedy challenging the allotment of land by G.O.Ms. No.181 Rev. dated 15.3.1991 alienating an extent of 150 acres of land which belongs to the tank bed area of Peruru tank to Tirumala Tirupathi Devasthanam (in short, TTD) and to Housing Board etc. The Writ Petition No.7955 of 1994 was filed assailing G.O.Ms.No.181, dated 15.3.1991 in respect of alienation of Peruru tank bund land to TTD and Writ Petition No.8650 of 1994 was filed assailing G.O.Ms.No.84-Revenue Department, dated 28.1.1994 in respect of alienation of Avilala tank bed area land to A.P. Housing Board. The High Court dismissed the writ petitions on various grounds. Aggrieved by the order of this Court, the public spirited person approached the Supreme Court. The Apex Court, after considering the facts and circumstances of 3 1987 AIR 1109 4 AIR 1987 AP 171 5 (2006) 3 SCC 549 4 the case, concluded that alienation of tank bund land vide G.O. Ms.No.84, dated 28.1.1994 is in violation of Articles 48A and 51A(g) of the Constitution of India, after considering the doctrine of 'sustainable development' and observed as follows:
"On realizing the importance of restoration of tank basins towards conservation of water and recharging of ground water, increase the storage capacity of tanks, renovating the tank bunds as well as feeder channels, TUDA has taken over 30 tanks in its operational area for taking up the improvements. Proposals include removal or eviction of encroachments, desilting of tank basins, clearing of jungle, strengthening of tank bunds, excavation of boundary trenches, widening and excavation of feeder channels, construction of boundary pillars and compound walls along the tank boundary. Block plantation, programmes for development as landscaped parks and water based entertainment units for the benefit of the public in off shore areas of the tanks have been proposed wherever feasible and viable. Towards protection of environment, provision for treatment system is also made in the project to take care of entry of drainage/sullage into the tank storages. Block plantation on all on-shore areas of tank have been taken up as a part of Neeru Meeru programme to prevent erosion of soils and entry of encroachments which will have long term positive environment results."
But, appointed an expert committee to examine the issue and after careful perusal of expert committee's report, it was accepted to some extent, but, in the interest of protecting environment and social development, this Court placed reliance in the case of M.C.Mehta's case (supra), wherein the Apex Court in para 35 held as under :
"The issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibility, who under the pressures of the changing needs of an increasingly complex society find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not for the Courts. If there is a law made by Parliament or the State Legislatures, the Courts can serve as an instrument for determining legislative intent in the exercise of powers of judicial review under the Constitution. But, in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resource and convert them into private ownership or commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the Courts find it necessary, in good faith, for the 5 public and in public interest to encroach upon the said recourses."
On the basis of the principle in M.C.Mehta's case the Supreme Court held that the responsibility of the state to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "state responsibility" for pollution emanating within one's own territories [Corfu Channel Case, ICJ Reports (1949)4].
The Apex Court also referred the declaration of environment and development passed during the Earth Summit at 1992 to which India is also a party, adopted the notion of sustainable development principle i.e., in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.
The Apex Court in the case of Essar Oil v. Halar Utkarsh Samiti [2004(2) SCC 392, para 27] was pleased to expound on this. Their Lordships held: "This, therefore, is the sole aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in population together with the consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the pollution of water resources and the very air that we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other."
6
A similar view was taken by the Apex Court in Indian Council for Enviro-Legal Action v. Union of India [1996 (5) SCC 281, Para 31] where their Lordships said: "While economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation; at the same time the necessity to preserve ecology and environment should not hamper economic and other developments. Both, development and environment should go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of the environment."
The concept of sustainable development also finds support in the decisions of this court in the cases M.C.Mehta v. Union of India (Taj Trapezium Case), (1997) 2 SCC 653, State of Himachal Pradesh v. Ganesh Wood Products, (1995) 3 SCC 363 and Narmada Bachao Andolan v. Union of India, (2002) 10 SCC 664. In light of the above discussions, it seems fit to hold that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and finds a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege. Another legal doctrine that is relevant to this matter is the Doctrine of Public Trust. This doctrine, though in existence from Roman times, was enunciated in its modern form by the US Supreme Court in Illinois Central Railroad Company v. People of the State of Illinois. [146 US 537(1892)] where the Court held:
The bed or soil of navigable waters is held by the people of the State in their character as sovereign, in trust for public uses for which they are adapted. The State holds the title to the bed of navigable 7 waters upon a public trust, and no alienation or disposition of such property by the State, which does not recognize and is not in execution of this trust is permissible. What this doctrine says therefore is that natural resources, which includes lakes, are held by the State as a "trustee" of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust. Though this doctrine existed in the Roman and English Law, it related to specific types of resources.
The US Courts have expanded and given the doctrine its contemporary shape whereby it encompasses the entire spectrum of the environment.
The doctrine, in its present form, was incorporated as a part of Indian law by this Court in the case of M.C.Mehta v. Kamal Nath (supra) and also in M.I. Builders v. Radhey Shyam Sahu, (1999) 6 SCC 464.
The Apex Court in M.C.Mehta's case observed as follows :
"Our legal system includes the public trust doctrine as part of its jurisprudence. The state is the trustee of all natural resources which are by nature meant for public use and enjoyment. The State as a trustee is under the legal duty to protect the natural resources. Thus, the Apex Court also further adverted to the doctrine of intergenerational equity which is of recent origin and the Stockholm Declaration, 1972 refers to it in principles 1 and 2. In this context, the environment is viewed more as a resource basis for the survival of the present and future generations. Principles 1 and 2 are as follows: Principle 1 - Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for the present and future generations.
Principle 2 - The natural resources of the earth, including the air, water, lands, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of the present and future generations through careful planning or management, as appropriate Article 48-A of the Constitution of India mandates that the State shall endeavor to protect and improve the environment to safeguard the forests and wild life of the country. Article 51A of the Constitution of India, enjoins that it shall be the duty of every citizen of India, inter 8 alia, to protect and improve national environment including forests, lakes, rivers, wild life and to have compassion for living creatures.
The Hon'ble Supreme Court, while considering the similar question, has given wider importance to the Article 21 of the Constitution of India. Article 21 of the Indian Constitution of India guarantees to all persons a fundamental right to life and right to life is not confined to mere animal existence but extends to the right to live with basic human dignity. The Court observed that enjoyment of life and its attainments and fulfillment guaranteed by Article 21 of the constitution embraces the protection and reservation of the nature's gifts, without which life cannot be enjoyed. The court further observed that protection of environment is not only the duty of the citizens but is also the obligation of the State and all other state organs including the courts. The Hon'ble Supreme Court while dealing with Article 21 of the Constitution has held that the need for a decent and civilized life includes the right to food, water and a decent environment and further observed that water is a gift of nature. Human hand cannot be permitted to convert this bounty into a curse, an oppression. The primary use to which water is put being drinking, it would be mocking nature to force the people who live on the bank of a river to remain thirsty. The Hon'ble Supreme Court further observed that drinking is the most beneficial use of water and this need is so paramount that it cannot be made subservient to any other use of water, like irrigation. So, the right to use of water for domestic purpose would prevail over other needs. Vide M.C.Mehta v. Union of India (supra).
The Constitution obligates the State to protect river water, lakes etc., with a view to enhance environment and to avoid environmental degradation. While the Constitution does not specifically recognize a 9 fundamental right to water, but decisions deem such a right to be implied in Article 21. Also Article 39(b) mandates that the State shall, in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good. In Subhash Kumar v. State of Bihar and Ors (supra) the Honble Apex Court recognized that the right to life 'includes the right of enjoyment of pollution free water and air for full enjoyment of life.' In Sardar Sarovar's case the Supreme Court went further and directly derived the right to water from Article 21. It is stated that the 'water is the basic need for the survival of the human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India. In the State of Himachal Pradesh v. Umed Ram Sharia the Hon'ble Supreme Court held that every person is entitled to life as enjoined in Article 21 of the Constitution, that he has also the right under Article 21 to his life and that right under Article 21 embraces not only physical existence of life, but also the quality of life. The Hon'ble Apex Court in P.R.Subhash Chandran v. Government of A.P. also held that under the constitution, the role of the State to provide every citizen with adequate clean drinking water and to protect water from getting polluted is not only a fundamental directive principle in the governance of the state but is also a penumbral right under Article 21 of the Constitution of India.
Viewed from any angle, it is the obligation of the State to protect the water from pollution and protect lakes, rivers, tank beds etc., in view of Article 48A and 51A(g).
From the Judgments of the Hon'ble Apex Court referred to above, it is very clear that the State is a custodian to maintain water bodies and also ecological balance and if there is any violation of 10 mandate of the law laid down by the Hon'ble Apex Court, the authorities have to take steps forthwith in accordance with the provisions of law. It is very strange to note that in spite of representations made by the villagers seeking protection of water bodies, the authorities are not acting upon the same.
Having regard to the above, the present Writ Petition in the form of PIL is disposed of directing the respondent authorities to take steps to remove the encroachments, if any, over Agarala water tank in accordance with law. It is needless to mention that the officials shall initiate the process, if there are any encroachments over the said tank, as early as possible, preferably within three weeks from the date of receipt of a copy of this order and complete the same at the earliest.
There shall be no order as to costs.
As a sequel, the miscellaneous applications, if any pending, shall stand closed.
___________________________ C. PRAVEEN KUMAR, ACJ ______________________________ M. SATYANARAYANA MURTHY, J Date: 04.09.2019 pab