Andhra Pradesh High Court - Amravati
T. Siva Prasad vs The State Of Andhra Pradesh on 11 September, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
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HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
W.P. (PIL) No. 240 of 2017
AND
W.P. No. 18349 of 2017
COMMON ORDER:(Per Hon'ble Acting Chief Justice C. Praveen Kumar)
1) W.P. (PIL) No. 240 of 2017: The present Public Interest Litigation came to be filed by one Kondapalli Madanna, seeking issuance of Writ of Mandamus declaring the inaction of Respondent Nos.1 to 6 in taking any action to evict Respondent No.7 from government lands in Survey Nos. 39 to 43 and 88 to 91 of Brahmanapally Village, Kuderu Mandal, Anantapuram District, which are classified as "Vanka Poramboke", as illegal and violative of Articles 48A, Article 51A(g) and 21 of the Constitution of India.
2) W.P. No. 18349 of 2017: The Writ Petition came to be filed by one T. Siva Prasad, seeking issuance of Writ of Mandamus declaring the inaction of Respondent Nos.1 to 4 in taking any action to stop illegal encroachments of government assigned lands, water bodies in respect of Survey Nos. 37, 58, 63-3, 83-2, 89, 90 & 104, 105, 180, 181, 189-1, 189-2, 190-1, 190-2 of Brahmanpalli Village, Kudair Mandal, Anantapuram District, as arbitrary, illegal and violation of the provisions of Act 9 of 1977 and A.P. Water, Land and Trees Act, 2002.
3) The facts in issue in W.P. (PIL) No. 240/2017 are as under:
(i) Respondent No. 7 purchased lands admeasuring Ac.32.30 cents and Ac.38.80 cents in Survey Nos. 28 and 44 of Brahamanpalli, Hamlet of Gotkur Village Grampanchayat of Kuderu Mandal of Ananthapuram District, respectively, and started a venture for construction of houses Page 2 therein. Around the said land, there are Government lands in Survey Nos. 39, 40, 41, 42 and 43 classified as "Vanka Poramboke". It is stated that similar Vanka Poramboke is running through Survey Nos. 88, 89, 90 and 91 as well. It is averred that without any right, the 7th Respondent laid layout by including the said Vanka Poramboke.
(ii) The averments in the affidavit further discloses that the cart track in the plan running from Chinnammapalli to Kammuru is passing through the government land and the lands in Survey Nos. 28 and 44 belong to the 7th Respondent. A compound wall was raised by the 7th Respondent in the lands causing serious interference to the flow of water through the Vanka Poramboke.
(iii) Having regard to the above, the petitioner through his Son got filed an application under RTI Act, on 24.04.2017, seeking information relating to the venture launched by the 7th Respondent and also with regard to the occupation of government land, if any, by Respondent No.
7. It was informed that that the details with regard to the projects launched by the 7th Respondent is submitted to Director of Town and Country Planning, Ananthapuram for technical sanction. It was also stated that after examining the plans submitted by the 7th Respondent, the same were returned for rectification of certain lapses. In-spite of issuance of several notices by Grampanchayat, the details of the project have not yet been furnished by the 7th Respondent. It is stated that an application came to be submitted by the petitioner, on 08.05.2017, during the grievances day, stating that Respondent No.7 occupied the Government lands, but, no action has been taken by any of the authorities. The petitioner also submitted an application to the Tahsildar requesting him to take measures to protect the government land, but, it appears that, no action has been initiated so far. Aggrieved by their inaction, the present PIL came to be filed seeking a direction to the Page 3 authorities to protect the government lands including the Vanka Poramboke in Survey Nos. 40, 41, 42 and 43 Survey Nos. 88, 89, 90 and
91. It is also the prayer of the petitioner that if the Vanka Poramboke is not protected, it would not only effect the ecological balance but would also cause monetary loss to the persons who purchased plots in the venture launched by the 7th Respondent.
4) The facts in issue in W.P.No. 18349/2017 are as under:
(i) The petitioner paid advance of Rs., 10,000/- on 06.03.2017 to the 5th Respondent personnel towards purchase of a plot, for construction of house, in the 5th Respondent venture and obtained receipt, dated 06.03.2017. On his making enquiry before the concerned Revenue, Civic Authorities, the petitioner learnt that, the 5th Respondent occupied government Assigned Lands, Water Bodies etc., and prepared rough plans for self-serving without having any authentic seals of 4th Respondent or Director of Town and Country Planning Authorities.
(ii) Pertinently, the Survey Nos. 37, 58, 63-3, 83-2, 89, 90 & 104, 105, 180, 181, 189-1, 189-2, 190-1, 190-2 of Brahmanpalli Village, Kudair Mandal, Anantapuram District, were noted as government lands. In-fact, the Survey No. 89, admeasuring Acres 2.87 cents is classified as "Vagu" [Water body] of Brahmanpalli Village, Kudair Mandal, Anantapuram District. Therefore, the 5th Respondent encroached the Branmanapalli Government Assigned Lands, Brahmanapalli, Kudari Mandal, Anantapuram District for their commercial purpose, showing the government lands as the private land of 5th Respondent, which is contrary to the provisions of Act 9 of 1977 and Rules thereon and Board Standing Orders.
5) Counters came to be filed by the Respondents [W.P. (PIL) No. 240 of 2017) disputing the averments made in the Writ Petition.
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(i) In the counter filed by the Regional Deputy Director of Town Planning, Anantapuram representing on behalf of Respondent Nos. 2 and 3, it is stated that, the Regional Deputy Director of Town Planning, Anantapuram and District Town and Country Planning, Anantapuram, inspected the site under reference and found unauthorized residential layout in an extent of Ac.70.00 cents and erection of stones dividing the land into residential plots and road pattern of BT/WBM with 40'-0" and 33'-0" wide roads. It is further stated that some plots are covered by construction of ground floor/G+1 with developed electrical lines/street lights and overhead tanks. It was also observed that the 7th respondent encroached into the water body portion developed by it and took up sale of plots without obtaining technical clearance from the Director of Town and Country Planning, Hyderabad/ the Regional Deputy Director of Town Planning, Anantapuram district, as a result of which, the grampanchayat is losing fees and also 10% of land for public purpose.
(ii) The averments in paragraph no. 9 of the counter show that their office has requested the 7th respondent through the Panchayat Secretary of Vanka details and also the NOC from the concerned Irrigation Department to pursue the proposal, but, no response received till date though unauthorized development took place in the site under reference. Since, instructions were given to the Panchayat Secretary at every time to take immediate action, the office of Town Planning is not responsible for the said unauthorized developments.
(iii) Respondent No. 4, who is working as Collector & District Magistrate, Anantapuram District filed counter stating that the RDO, Ananthapuram has submitted a report stating that one K. Suresh Kumar Reddy, Managing Partner of Respondent No. 7 applied for conversion of agricultural land in Survey No. 28 and 44 into non-agricultural land of Brahmanpalli village, which is Shrotriyam village. After careful perusal of Page 5 the material on record, the Revenue Divisional Officer, Ananthapuram issued proceedings converting the said land into a non-agricultural lands.
(iv) In paragraph no. 3 of the counter, it is stated that, no obstruction is caused to any of the government property due to the said venture, except construction of causeway between Survey Nos., 28 and 44 without permission from the Irrigation Department.
(v) In paragraph no. 4 of the counter, it is stated that, the land in Survey No. 39 is classified as "Vagu" as per Fair Adangal and there is no encroached land in the venture as alleged. The Respondent No. 7 has raised a pipe causeway to cross the vanka in Survey No. 28 to Survey No.
44. Underneath the causeway, three cubical pipes with one-meter diameter each were laid parallelly. No permission for construction of pipe causeway across vanka was ever granted to the 7th Respondent. It has been observed that the pipe causeway was constructed with insufficient vents and during vanka full discharge, the pipe causeway would not discharge in full shape, as a result, the vanka may cause obstruction and there is every possibility of submersion of surrounding lands on either side of vanka. It is further stated that in the marked cart track passing from North to South abutting to Survey Nos. 28 and 44, the Respondent No. 7 occupied the said cart track and it is a part of the venture. However, this track was given a way out in the internal roads provided in the venture. It is further stated that the general public are not passing through this cart track for ingress and egress.
(vi) It is further stated that 10% of the open site in Survey No. 28 and 44 was left for communal purpose and for maintaining ecological imbalance. Hence prayed that the allegation in the writ petition that 7th Page 6 respondent occupied the government lands may not be correct according to counter. The deviations, if any, are to the one referred to above.
(vii) The 5th Respondent, Tahsildar, Kudair Mandal, Anantapuram district is said to have filed counter. But, there is no positive proof of filing counter by the 5th Respondent, since the same is not available either in the court record or with the counsel appearing for the Writ Petitioner but a copy is with Respondent No. 7. His version in the said counter appears to be that, the land occupied by the 7th Respondent is private land purchased by the private land owners and they laid out a plan for construction of houses to the prospective beneficiaries. The counter of the Tahsildar refers to the survey report of team of employees showing that there is no encroachment in Vanka Poramboke, as alleged by the petitioner.
(viii) The 6th Respondent also filed his counter disputing the averments made in the affidavit filed in the writ petition. According to him, the counters filed by the official respondents supporting his plea to the extent that 7th Respondent never occupied land in Survey Nos. 39, 40, 41, 42, 43, 88, 89, 90 and 91, which are covered under Vanka Poromboke or the government lands. The averments in the counter further show that the owner of the land can develop layout in his own without occupying the government lands. The Respondent No. 7 has to compulsorily rectify the defects pointed out by the Director of Town and Country Planning and should not sale the plots and take-up construction activity unless and until it is approved by the District Town and Country Planning as per G.O. Ms. No. 67 dated 26.02.2002.
(ix) In the counter filed on behalf of Respondent No. 7 represented by its Managing Partner, it is stated that, his firm purchased lands in Survey Nos. 28 and 44 admeasuring 97.79 acres for valuable sale Page 7 consideration and got it converted from agricultural to non-agricultural in accordance with law. The lands in Survey Nos. 39, 40, 41, 42, 43, 88, 89, 90 and 91 are unconcerned to the 7th Respondent and they never laid any layout. Moreover, out of the land purchased by the 7th Respondent in Survey Nos. 28 and 44, 10% of the land was gifted to the Grampanchayat for development purpose.
(x) The authorities concerned have conducted a survey and submitted a report stating that there is no encroachment in Vanka Poromboke and the said report was also filed in W.P. No. 18349/2017 by the respondent authorities. However, suppressing the said report, this Writ Petitioner got filed this PIL.
6) Counter came to be filed by the Respondent No.4 [W.P. No. 18349 of 2017) disputing the averments made in the Writ Petition.
(i) The In-charge Panchayat Secretary averred that there is no application for approval of layout in respect of Survey Nos. 37, 58, 63-3, 83-3 to 89, 90 & 104, 105, 180, 181, 189-1, 189-2, 190-1, 190-2 of Brahmanpalli Village, Kudair Mandal, Anantapuram District. On physical verification, it was found that, 5th Respondent formed layout adjacent to the Vagu but the Grampanchayat has not passed any resolution. Gram Panchayat issued notices, dated 28.02.2017 and 27.04.2017, requesting to stop the developmental works in the said locality, however, even after receipt of said notices, the 5th Respondent proceeded to develop the said land.
7) The Point that arise for consideration is whether the relief sought for in this PIL can be granted?
8) Reading of the averments made in the Writ Petitions, as well as counters, would prima facie show that, the grievance of the Writ Page 8 Petitioners relates to occupation of Vanka Poramboke and government lands in Survey Nos., 39, 40, 41, 42, 43, 88, 89, 90 and 91; and Survey Nos. 37, 58, 63-3, 83-2, 89, 90 & 104, 105, 180, 181, 189-1, 189-2, 190- 1, 190-2 of Brahmanpalli Village, Kudair Mandal, Anantapuram District. While the counsel for the Respondents would contend that, there is no evidence on record to show that the 7th Respondent [W.P. (PIL) No. 240/2017] and 5th Respondent [W.P. No. 18349/2017] has occupied the lands referred to above.
9) Though, the petitioner alleges that the 7th Respondent [W.P. (PIL) No. 240/2017] and 5th Respondent [W.P. No. 18349/2017] encroached on to Vanka Poromboke/government lands in Survey Nos. 39, 40, 41, 42, 43, 88, 89, 90 and 91; and Survey Nos. 37, 58, 63-3, 83-2, 89, 90 & 104, 105, 180, 181, 189-1, 189-2, 190-1, 190-2 of Brahmanpalli Village, Kudair Mandal, Anantapuram District, but, none of the counters filed by the Official Respondents indicate which we have referred to above that the 7th Respondent [W.P. (PIL) No. 240/2017] is in occupation of the said lands except the lands in Survey Nos., 28 and 44. However, the counters in W.P. (PIL) No. 240/2017 indicate that cart track came to be occupied and made into plots, leaving egress from the said track. The material on record show laying of a causeway connecting lands in Survey No. 28 and
44. Underneath the said causeway, the 7th Respondent laid certain pipelines with insufficient vents. These things came to be laid without any permission from the competent authority. In-fact, the argument advanced by the Respondents would show that the construction made and the layout done was not in accordance with law.
10) The State is under obligation to protect the ecology and improve environment and safeguard forests and wild life. The State shall endeavor to protect and improve the environment and to safeguard the Page 9 forests and wild life of the country -- Vide Article 48-A of the Constitution of India.
11) Article 51A deals with fundamental duties. According to Article 51A(g), it shall be the duty of every citizen of India to protect and improve the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures. Thus, Article 48-A and Article 51A(g) obligates the State to protect environment and make every endeavor to protect lakes, rivers etc., to maintain the ecology balances. Since the ownership and control over material resources of the community are lies with the State, such resources are to be distributed as best to sub-serve the common good - Vide Article 39(b) of the Constitution of India.
12) 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 1 (1997) 2 SCC 653 2 1991 AIR 420 Page 10 sustainable development, the State cannot allow the properties to whomsoever the State likes.
13) The 42nd amendment to the constitution of India added Article 48A and 51A(g) which comes under the directive principle of State policy and 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.
14) 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 3 1987 AIR 1109 4 AIR 1987 AP 171 5 (2006) 3 SCC 549 Page 11 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 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 Page 12 find it necessary, in good faith, for the public and in public interest to encroach upon the said recourses."
15) 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].
16) 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.
17) 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."
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18) 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."
19) 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 waters upon a public trust, and no alienation or disposition of such property by Page 14 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.
20) 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 Page 15 future generations through careful planning or management, as appropriate
21) 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 alia, to protect and improve national environment including forests, lakes, rivers, wild life and to have compassion for living creatures.
22) 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, Page 16 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).
23) 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 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.
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24) Viewed from any angle, it is the obligation of the State to protect the water pollution and protect lakes, rivers, tank beds etc., in terms of Article 48A and 51A(g).
25) 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 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.
26) In the instant case, though there is no material to show that the 7th Respondent encroached on to the government lands and laid plots but the averments in the counter indicate construction of causeway; laying of pipes; occupation of cart track and construction made in some of the plots without permission or approval of the authorities concerned. Though, the Writ Petition relates to occupation of government land but having regard to the averments in the counter and this being a PIL, we feel that necessary direction can be given to take steps in accordance with law for the violations, if any, made in the said layout.
27) Having regard to the above, more particularly with regard to the construction of causeway, laying of pipes which do not satisfy the requirement; obstructing the free flow of water through the vanka, occupation of cart track, and constructions made in the said layout, we feel that the authorities concerned shall take steps in accordance with law if the same are in violation of any law. As observed earlier, though such a request was not made but this being a PIL and the said facts are brought to the notice of the court, this Court can issue necessary directions to the authorities keeping in view that the State is a custodian to maintain not only the water bodies but free flow of water through the Page 18 Vanka, which is said to be main water source for the villages in an around the said place.
28) Accordingly, both the Writ Petitions are disposed of with a direction to the authorities concerned to take steps in accordance with law against the 7th Respondent [W.P. (PIL) No. 240 of 2017] and 5th Respondent [W.P. No. 18349 of 2017] of its unauthorized occupation of Vanka Poramboke and Government land, if any. No order as to costs.
29) Consequently, miscellaneous applications pending, if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: .09.2019.
MS.