National Green Tribunal
Avilala Cheruvu Parirakshana Samiti vs State Of Andhra Pradesh on 29 August, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 156 of 2020 (SZ)
IN THE MATTER OF:
Avilala Cheruvu Parirakshana Samiti
Represented by its Convener Akula Satish Kumar
Door No.37, AGK Buildings, Gandhi Road,
Tirupati, Chittoor District, Andhra Pradesh and Anr.
... Applicant(s)
Versus
State of Andhra Pradesh
Rep. by the Chief Secretary
Department Building #1,
1st Floor, A.P. Secretariat,
Velagapudi, Amaravathi, Guntur District and Ors.
...Respondent(s)
For Applicant(s): Mr. S. Kamalesh Kannan.
For Respondent(s): Mrs. Madhuri Donti Reddy for R1 to R9.
Judgment Pronounced on: 29th August 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Justice K. Ramakrishnan, Judicial Member Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.156/2020 (SZ), 29th August 2022. Mn.
Page 1 of 49Item No.1:- Court No.1 BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI (Through Video Conference) Original Application No. 156 of 2020 (SZ) IN THE MATTER OF:
1) Avilala Cheruvu Parirakshana Samiti Represented by its Convener Akula Satish Kumar Door No.37, AGK Buildings, Gandhi Road, Tirupati, Chittoor District, Andhra Pradesh - 517501.
2) Swarnamukhi Bachavo Andolan Samiti Represent by its President B. Mohana Krishna Plot No. 117, L.S. Nagar, Tirupati, Chittoor district, Andhra Pradesh-517501.
... Applicant(s) Versus
1) State of Andhra Pradesh Rep. by the Chief Secretary Department Building #1, 1st Floor, A.P. Secretariat, Velagapudi, Amaravathi, Guntur District - 522 503.
2) The Special Chief Secretary to Government (Minor, Medium and Major Irrigation) 4th Block, 1st Floor Room No:216, A.P Secretariat Office, Velagapudi, Guntur district - 522 237.
3) The Principal Chief Conservator of Forests & Head of Forest Aranya Bhavan, K.M. Munshi Road, Nagarampalem, Guntur-522004, Andhra Pradesh.
4) The District Collector Chittoor New Collectorate Office of Chittoor, Chittoor District.
5) The Superintending Engineer Irrigation Circle, Water Resources Dept, Bangalore road, Near DEO office, Chittoor town, Chittoor District.
6) The Executive Engineer Irrigation Division, Alipiri road, Tirupathi.
7) The Vice Chairman Tirupati Urban Development Authority Tataiahgunta, Tirupati, Chittoor District, Andhra Pradesh - 517 501.
Page 2 of 498) The Executive Officer Tirumala Tirupathi Devasthanam TTD Administrative Building, K.T. Road, Tirupati - 517 501, Andhra Pradesh.
9) The Project Officer Garuda Varadhi Tirupati Smart City Project, Survey No. 9/1B1C3, Adjacent to Srinvasa Complex, Tirupati, Andhra Pradesh.
...Respondent(s) For Applicant(s): Mr. S. Kamalesh Kannan.
For Respondent(s): Mrs. Madhuri Donti Reddy for R1 to R9.
Judgment Reserved on: 26th July 2022.
Judgment Pronounced on: 29th August 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgment is allowed to be published on the Internet - Yes.
Whether the Judgment is to be published in the All India NGT Reporter - Yes.
JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The above application has been filed by two associations viz., Avilala Cheruvu Parirakshana Samithi and Swarnamukhi Bachavo Andolan Samiti alleging that large scale constructions were being carried out by respondents Nos.8 & 9 in the catchment area of Avilala Cheruvu (Tank) comprised in Survey No.17, 18/1, 18/2 and 19 of Avilala Village, Tirupati Rural Mandal, Andhra Pradesh against the orders passed by the Hon‟ble Apex Court in Intellectuals Forum, Tirupathi Vs. State of Andhra Pradesh & Ors.1 1 2006 (3) SCC 549 Page 3 of 49
2. It was alleged in the application that against the direction of the Hon‟ble Supreme Court, permission was granted for the purpose of providing certain things under "Sri Venkateswara Spiritual Theme Park Project of Avilala Tank" to be executed by Thirumula Tirupathi Devesthanam which includes construction of establishment of gardens, hills and forests, buffer planting, water features like Lake and Island, constructed wetland, pond, stream, swale, peripheral road, parking, internal pathways, security cabins, entrance structure, front boundary wall, rear boundary wall, pavilions like cafe & amphitheatre, restrooms, children‟s pavilion, butterfly pavilion, wellness centre, site/maintenance office, visitor‟s centre and ticket counter etc. Earlier, by G.O. Ms.84 of Revenue Department dated 28.01.1994, it was decided to transfer to Tirupathi Urban Development Authority and Andhra Pradesh Housing Board and this was challenged before the Hon‟ble High Court of Andhra Pradesh by filing Writ Petition as W.P. No.8650 of 1994 which was dismissed by the Hon‟ble High Court of Andhra Pradesh, against which, Civil Appeal No.1251 of 2006 was filed before the Hon‟ble Apex Court and the Hon‟ble Apex Court by the above said Judgment, set aside the order passed by the Hon‟ble High Court of Andhra Pradesh and issued following directions in respect of Avilala Cheruvu:-
(i) No further construction to be allowed in the area.
(ii) Each house already constructed by the APHB/TUDA must provide structure for roof top rain water harvesting. All the storm water in the already built colonies to be recharged to ground water. Structures for such purposes to be designated in consultation with the CGWB.
(iii) No bore well /tube well for any purpose to be allowed in the area.
(iv) An area of 40 acres presently reserved for the Government should not be developed in any way that may lead to concretization of the ground surface. Recharge structures to be constructed for rainwater harvesting.
(v) Piezometers to be setup at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime.
3. It is against the direction of the Hon‟ble Supreme Court that respondents Nos.8 & 9 were trying to launch a project of developing Avilala Cheruvu and though representations were made to the authorities and authorities have directed the Thirumula Tirupathi Devesthanam not to proceed with the work, but they were still proceeding with the work. That prompted the applicants to file this application seeking the following reliefs:-
Page 4 of 49"a) To restrain the respondent authorities from making any constructions, in the nature of structures like Hill, Peripheral Road, Parking, Internal Pathways, Security Cabins, Entrance Structure, Front Boundary Wall, Rear Boundary Wall, Cafe, Restrooms, Children‟s Pavilion, Butterfly Pavilion, Wellness Centre, Office, Visitor‟s centre and Ticket Counter, etc., within the catchment area of the Avilala Cheruvu (Tank) in survey No.17, 18/1, 18/2 and 19 of Avilala Village, Tirupati rural Mandal, Andhra Pradesh.
b) To direct the respondent authorities to restore the Avilala Cheruvu water body to the original position, without reducing the actual capacity of the tank.
c) To award cost to the respondents 7, 8 and 9 for misusing the water tank, by raising constructions and using the same as a cast yard.
d) To declare the proceedings in Lr. No. DB/SO/W-25/1506M, dt. 26.12.2015 of the 5th respondent as illegal.
e) To direct the fifth respondent to maintain the Avilala Cheruvu (tank) properly and to not alienate the same, for any purpose, to any person in mere future, and
f) Pass such further or other orders in the interest of justice."
4. Vide Order dated 20.08.2020, after considering the allegations made in the application, this Tribunal satisfied that there arose a substantial question of environment which required the interference of this Tribunal and admitted the matter. Since the learned counsel appearing for the State-respondents submitted that at present no work was being done and if some time was granted, they would be able to file a detailed statement, this Tribunal deferred the appointment of Joint Committee to go into the question.
5. Thereafter, on 05.11.2020, this Tribunal recorded the submissions made by the learned counsel appearing for the respondents that they had no intention to do anything at present in that area, but in order to ascertain the present status of the area and also to ascertain as to whether there was any encroachment made into the water body or any construction had been made after the orders passed by the Hon‟ble Supreme Court dated 23.02.2006, appointed a Joint Committee comprising of (i) Senior Officer from the Ministry of Environment, Forests and Climate Change, Integrated Regional Office, Chennai, (ii) the District Collector - Chittoor District, (iii) Superintending Engineer - Irrigation Department of the particular area and (iv) an Officer from the Office of the Principal Chief Conservator of Forests & Head of Forest Force (HoFF) not below the rank of Chief Conservator of Forests to be deputed by the Principal Chief Conservator of Forests & Head of Forest Force (HoFF) to inspect the area in question and submit a factual and as well as action taken report, if there is any violation found.
Page 5 of 496. The Joint Committee was directed to ascertain the extent of the water body as per the revenue records, the present extent available, number and nature of encroachment and what was the proposed action to be taken to restore the water body to its original position in tune with the directions issued by the Hon‟ble Apex Court in the case mentioned above and if any damage had been caused to the environment, what was the nature of damage caused and assess environmental compensation and submit a factual as well as action taken report to this Tribunal. The Ministry of Environment, Forests and Climate Change (MoEF&CC), Integrated Regional Office, Chennai was designated as the nodal agency for co-ordination and also for providing necessary logistics for this purpose.
7. The 6th respondent filed counter affidavit denying the allegations made in the application. They further contended that "Avilala Cheruvu" is a water body located at Avilala Village, Tirupati Rural Mandal of Andhra Pradesh and it is comprised in Survey Nos.17, 18/1, 18/2 and 19 of Avilala Village, Tirupati Rural Mandal, Chittoor District having an extent of 201.62 Acres. The said tank was alienated to Tirupati Urban Development Authority and Andhra Pradesh Housing Board, vide G.O.Ms. No.84, Revenue Department, dated 28.01.1994 and this was challenged before the Hon‟ble High Court of Andhra Pradesh by filing Writ Petition as W.P. No.8650 of 1994 by a registered society by name, „Intellectuals Forum‟ and the same was dismissed by the Hon‟ble High Court, against which, a Civil Appeal as Civil Appeal No.1251 of 2006 was filed before the Hon‟ble Apex Court and the appeal was allowed by the Hon‟ble Apex Court by order dated 23.02.2006 and issued certain directions in respect of this tank which was extracted in the earlier paragraph while referring to the pleadings in the application.
8. It is further contended that the 8th respondent had taken permission from the 5th respondent vide letter No.DB/SO2/W-25/1506M, dated 26.12.2015 to undertake the activity of beautification of the Avilala Tank, with a specific condition of not to change the morphology of the tank. The 5th respondent vide letter No.SE/IC/CTR/DB/T.4/ATO, W.25/739M, dated 07.08.2019 had requested the 8th respondent not to take up any permanent structures in the Avilala Tank and also to regain the tank to its original morphology and also informed that Page 6 of 49 violation of the condition/changing the morphology of the tank leads to the legal complications to be faced by all the concerned departments, evidenced by Annexure-1 produced along with the counter. The Superintending Engineer - Irrigation Circle, Chittoor has addressed a letter to the 8th respondent vide letter No.SE/IC/CTR/DB/T4/ATO/W.25/921M, dated 09.10.2019 and requested them not to take up any permanent structures in the foreshore area of the Avilala Tank and regain the tank to its original morphology as per the judgment of the Hon'ble Apex Court in SLP No.7196-797 of 2001 dated 23.02.2006, evidenced by Annexure - 2. The 5th respondent had granted permission for beautification of the tank without changing morphology of the tank and the allegations contrary are wrong. The 9th respondent had been using the water body on the southern side for storage of fabrication materials. The stored fabrication materials are used in connection of Garuda Vardhi Project and the same have no connection to the beautification of Avilala Tank. The 9th respondent had entered into an agreement with the 7th respondent and permission was not accorded by the Water Resources Department to either TUDA or Garuda Vardhi Project for using part of the Avilala Tank as storage yard of fabrication materials and the copy of the letter of TUDA, Tirupati Roc No.2069/A1/2006 dated 13.04.2019 was produced as Annexure - 3 along with the counter. The Water Resources Department had not given any clearance or permission to the 8th respondent for the impugned construction viz., Sri Venkateswara Spiritual Theme Park, in Avilala Cheruvu tank, but there was a permission to beautify the tank only without changing its morphology. So, they prayed for permission to file additional statement (if any) required and also for passing appropriate orders, accepting their contentions.
9. Pursuant to the direction of this Tribunal, the Joint Committee has filed the report dated Nil, received on 11.01.2021 and extracted in Para (3) of the Order dated 12.01.2021 which reads as follows:-
"Brief Background - Avilala Cheruvu The AvilalaCheruvu (hereinafter also referred as Avilala tank) is a water body located at about 1.20 Km Southwest of Avilala Village, Tirupathi Rural Mandal, Chittoor District, Andhra Pradesh. It is spread in survey Nos. 17/4, 18/1, 18/2 and 19 of Avilala village. The Hydraulic particulars of the water body are as follows:
FTL : +508.19‟
MWL : +510.69‟
Page 7 of 49
TBL : +515.69‟
Top Width of bund : 6‟, 5‟ and4‟
Side slopes : 11/2 to 1 and 2 to
1
Height of revetment above FTL : 21/2ft.
Area of water spread at FTL : 201.60 Acres
Capacity of the tank at FTL : 43.80 mcft.
Ayacut : 279.00 Acres
Length of Bund : 2720 mtrs.
Combined catchment area : 5.38 sq. miles
In the year 1994 Avilala Tank was alienated to Tirupathi Urban Development Authority (TUDA) and Andhra Pradesh, Housing Board vide G.O.Ms.No.84 (Revenue), dated: 28.01.1994. Challenging the said Govt. orders a writ petition No.8650 of 1994 was preferred in Hon‟ble High Court, Hyderabad by a registered society called "The Intellectual Form". Upon dismissal of the said writ petition Special Leave Petition was preferred against the orders the Hon‟ble High Court. Subsequently, Civil Appeal no. 1251 of 2006 (Arising out of SLP(Civil) Nos. 7196-7197 of 2001) was decided on 23.02.2006, wherein the Hon‟ble Apex court was pleased to dispose the appeal with directions as given below (hereinafter also referred to the orders of Hon'ble Supreme Court).
1) No further construction to be allowed in the area.
2) Each house already constructed by the APHB/TUDA may provide for roof top rain water harvesting. All the storm water in the already built colonies to be recharged to ground water. Structures for such purposes to be designed in consultation with CGWB.
3) No bore well/tube well for any purpose to be allowed in the area.
4) An area of 40 acres presently reserved for the Government should not be developed in any way that may lead to concretization of the ground surface. Recharge structures to be constructed for rain water harvesting.
5) Piezometers to be set up at selected locations in consultation with the CGWB to observe the impact of rain water harvesting in the area ground water regime.
From 2006 to 2015 no activity was taken up in the Avilala tank and it remained as a Tank only.
On 26.12.2015 during a discussions held on the developmental activities of Tirupathi Town, the Tirumala Tirupathi Devasthanams (TTD) authorities have shown interest for development and beautification of Avilala Tank as part of keeping Tirupathi town greenery and ecological balance.
The then Superintending Engineer, Irrigation Circle, Chittoor vide Lr.No.DB/SO.2/W-25, 506 M, dated 26.12.2015 had given permission to TTD for development and beautification of Avilala Cheruvu (tank),duly keeping in view the supreme court orders, by not changing the morphology of the tank (Annexure- I).
The TTD, vide Lr.No. LOC No.2287/D12/CEM/TTD/TPT/2017, dt.30.05.2017 and dt. 21.07.2017 requested the Government of Andhra Pradesh to accord permission for the work of "Development of Avilala tank at Tirupathi" with a cost of Rs.18.50 crores and to include the same in the revised budget of 2017-18. The TTD proposed to develop Spiritual Park, Aesthetic Park, walking park, develop eco- system and percolation tank etc. to improve ground water availability to improve pilgrims‟ amenities etc. The Government of Andhra Pradesh also accorded permission to TTD to take up the proposed works of development of the above mentioned amenities for pilgrims and public, vide G.O.Rt.No.947, dated 11.09.2017 and included the same in the revised budget of 2017-18(Annexure-II).
The then Executive Engineer, Irrigation Division, Tirupathi vide Letter No. DB/JTO.IV/TPT/ 128 M Dt. 03-03-2018 has intimated the Chief Engineer, T.T.D., Tirupathi about the Hon‟ble Supreme court orders, and requested not to take up any construction in the Page 8 of 49 foreshore area of tank and also requested to stop laying of roads in the foreshore area of the tank. (Annexure-III). Further, the then Executive Engineer, Irrigation Division, Tirupathi vide Lr.No.603 SE, dated 27.10.2018 has reported to the Superintending Engineer, Irrigation circle, Chittoor that the foreshore area of Avilala tank was excavated by deploying six (6) excavators, eight (8) tippers and about thirty (30) tractors for forming hillock type structures on western side of the tank.
The Joint Executive Officer, Tirumala Tirupathi Devasthanams, Tirupathi, vide Lr.No.ROC No.2287/D12/CG/TTD/TPT/2017, dt.01.08.2018, has stated that as per the orders of Govt., in G.O.Rt.No. 947 dt. 11-09-2017, the Andhra Pradesh Urban Greenery and Beautification Corporation Ltd.(APUG & BCL) has entered into an MOU with the TTD and have furnished the proposals for development of Avilala Ecological Park with an estimated cost of Rs.181.13 crores in two phases i.e. Phase-1 for 80.14 crores and Phase-II for Rs100.99 crores. Further, as per the minutes communicated by the Managing Director, APUG & BCL, the Chief Minister, Govt. of Andhra Pradesh has conducted a review meeting on 04.07.2018 and gave his consent to proceed with the works as proposed in Phase-1 above. Accordingly, the Government has accorded permission to take up the development of Avilala Tank at Tirupathi with a revised project cost of Rs.80.14 crores under Phase-1, vide G.O.Rt.No.1775, dated13.12.2018, duly stipulating compliance to the orders of Hon‟ble Supreme Court.(Annexure-IV).
As the matter stood thus, the petitioners, Sri Akula Sathish Kumar and Sri B. Mohan Krishna, Tirupathi jointly submitted their representation vide letter dated 22.7.2019 to the following authorities.
(i) The Chief Secretary to Govt., A.P. Secretariat, Vijayawada (ii) The Executive Officer, TTD, Tirupathi (iii) The District Collector, Chittoor (iv) Superintending Engineer, Irrigation Circle,Chittoor
In their representation the petitioners have stated that the developmental works are being taken up by the TTD in Avilala Cheruvu, i.e., construction works of Sri Venkateswara Spiritual theme park, by flouting the orders of Hon‟ble Supreme Court and requested the authorities to ensure that the activities are in conformity with the above orders of Hon‟ble Supreme court of India, otherwise, they cautioned that, they will have no alternative except to file an application before the Hon‟ble National Green Tribunal against the authorities.
The Superintending Engineer, Irrigation Circle, Chittoor vide Lr.No.SE/IC/CTR/DB/T4/ATO/W.25/739 M, dated 07.08.2019 requested the TTD authorities not to take up any permanent structure in the Avilala Tank and restore the tank to its original morphology. Violation of the condition/ changing the morphology of the tank leads to legal complications to be faced by all the concerned departments (Annexure-V). The Superintending Engineer, Irrigation Circle, Chittoor also addressed the District Collector, Chittoor, with a request to address the TTD authorities not to take up any permanent structure in the foreshore of the tank by changing the morphology of the tank and instructed the Executive Engineer, Irrigation Division, Tirupathi to submit a detailed status report.
The then Executive Engineer, Irrigation Division, Tirupathi along with Deputy Executive Engineer, Irrigation Sub-Division, Tirupathi and Assistant Engineer, Tirupathi Rural have inspected the Avilala tank on 04.09.2019 and found that the following structures were constructed by the TTD in Avilala Tank.
1) Compound wall: 90% of compound wall, all along the tank, was completed by demolishing the tank bund.
2) WMM Road: Metal layers were laid without blacktopping.
3) CM&CD works: Two culverts with pipes were constructed.
4) Shed: 5 Nos of iron pillars with trusses without roof covering are erected.
5) Buildings: Columns up to plinth level was constructed.
6) Earthen mounds and bund: Earthen mounds and bund are formed in Page 9 of 49 the foreshore area.
7) Temporary shed: one temporary shed was constructed.
The TTD authorities had changed the morphology of the tank in violation of the conditions stipulated by the Irrigation department while permitting the development works as mentioned above. The same was intimated to the Superintending Engineer, Irrigation Circle, Chittoor vide Lr.No.DB/JTO.IV/Avilala/513 SE, Dt.18.09.2019.
The Executive Engineer has further submitted that the southern side of Avilala tank is being used by the M/s AFCON Company for fabrication and storage of materials required for construction of Garuda Varadhi fly over in Tirupathi city, a project taken up by TUDA, Tirupathi. On enquiry, the M/s AFCON have furnished records of permission accorded to them vide the proceedings of the Vice Chairman, TUDA, Tirupathi, which in turn have given reference of the GO Ms.No. 408, Municipal Administration and Urban Development (UBS) Department Dt. 18-12-2018, in pursuance of which the said proceedings were issued. The above GOMs. No.408 reads as under:
"The land falling in alignment and belonging to TTD/TUDA/MCT/APSRTC and any other Government properties shall be handed over to TSCCL for project execution".
In accordance with the above Govt. Orders, the TUDA has permitted M/s AFCON to utilize the land in Sy.No. 19 of Avilala village on a nominal rent of Rs. 2.00 Lakh (Rupees two lakhs only) per month for setting up of casting yard of Garuda Varadhi project with a condition to the effect that they should vacate the land after Garuda Varadhi project work is over or as and when this authority requires the land whichever is earlier. Further, the agency should adhere to the following conditions.
The company is permitted to utilize the land purely for casting/storage of materials relating to the Garuda Varadhi project and should not cause any damages or obstruct natural watercourse. They should not raise any permanent constructions. They should not change any physical features of the land.
The then Executive Engineer, Irrigation Division, Tirupathi has requested the Superintending Engineer, Irrigation Circle, Chittoor to address the TUDA authority seeking the grounds based on which it issued the above proceedings, permitting M/s AFCON to utilize the Avilala tank bed for the purpose of casting yard.
The Superintending Engineer, Irrigation Division, Chittoor vide Lr.No.SE/IC/CTR/DB/T4/ATO/W.25/921 M, dated 09.10.2019 (Annexure-VI) has once again requested the TTD authorities not to take up any permanent structures in the foreshore area of the Avilala tank and regain the tank to its original morphology as per the aforementioned orders of Hon‟ble Supreme Court..The Superintending Engineer, Irrigation Circle, Chittoor submitted the copy to the District Collector, Chittoor with a request to address the TTD authorities not to take up any permanent structures in the tank thereby changing the morphology of the tank. The Superintending Engineer, Irrigation Circle, Chittoor also instructed the Executive Engineer, Irrigation Division, Tirupathi to address the TUDA, Tirupathi regarding allotment of land to M/s AFCON company for setting up the casting yard for Garuda Varadhi Project and evict the encroachment by the company immediately with the support of revenue authorities.
On 24.06.2020, Avilala Cheruvu Parirakshana Samiti represented by its convener Sri.Akula Satish Kumar, Tirupathi and Swarnamukhi Bachavo Andolan Samiti represented by its president Sri.B. Mohan Krishna have approached the Hon‟ble National Green Tribunal, (SZ), at Chennai and filed an application No.156 of 2020 (SZ),challenging the permission given by Irrigation Department for taking up development and beautification works in the Avilala Cheruvu and requested the Hon‟ble Tribunal to inter alia direct the concerned authorities to refrain from taking up any development works in the catchment area of the Avilala Cheruvu and restore the water body to its original position, without reducing the capacity of the tank, besides awarding cost to the respondents.
Page 10 of 49The Executive Engineer, Irrigation division, Tirupathi vide Lr. No. DB/JTO-4/ Encroachments/ 603 M dt. 31-08-2020, has requested the Vice Chairman, TUDA, Tirupathi for cancellation of permission given to the M/s AFCONS Company by the TUDA authorities for utilizing the part of Avilala tank bed. The Executive Engineer, Irrigation division, Tirupathi vide, Lr.No. DB/JTO-4/ Encroachments/ 604 M Dt. 31-08- 2020, has also requested the Executive Officer, T.T.D, Tirupathi for regaining the morphology of Avilala tank and restoring the bunds of the Avilala tank to comply with the said orders of Hon‟ble Supreme court.
On 23.09.2020, the Executive Engineer, Irrigation Division, Tirupathi Sri.J.Venkata Siva Reddy, S/o.J.Reddeppa Reddy has submitted counter affidavit to the Hon‟ble National Green Tribunal, Chennai.
Joint Committee - O.A. No. 156 of 2020 dated 05.11.2020 The Hon‟ble NGT, Chennai in its order dated 05.11.2020, considering the prevailing circumstances and submissions made by both the parties and also considering the allegations made, appointed a Joint Committee comprising of the following members, to inspect and ascertain the present status of the area i.e. the Avilala Tank.
1. Senior Officer from Ministry of Environmental, Forests and Climate change, Integrated Regional Office (IRO), Chennai.
2. The District Collector, Chittoor District.
3. Superintending Engineer, Irrigation Department.
4. An officer from the office of the principal Chief Conservator of Forests & Head of ForestForce(HOFF)notbelowtherankofChiefConservatorofForeststobed epute d by the Principal Chief Conservator of Forest & Head of Forest Force (HOFF).
The committee was directed to ascertain the extent of water body as per the revenue records, the present extent available, number and nature of encroachment and what is the proposed action to be taken to restore the water body to its original position in tune with the directions given by the Hon‟ble Apex Court and any damage has been caused to environment, what is the nature of damage caused and assess environmental compensation and submit a factual as well as action taken report to the Tribunal on or before 12.01.2021.
As per the above directions of the Hon‟ble NGT, Chennai, a Joint Committee was formed duly comprising of the following officers:
1. Dr. C. Palpandi, Scientist-C from Ministry of Environmental, Forests and climate change will act as a Nodal Officer(EP/12.7/NGT(SZ)/070/2020/AP dated 01.12.2020)
2. Dr. N. Bharat Gupta, IAS, The District Collector, Chittoor
3. Sri. M. Surendra Reddy, Superintending Engineer, Irrigation Circle, Chittoor.
4. Sri. R.K. Suman, IFS, Additional Principal Chief Conservator of Forests, Government of Andhra Pradesh, Guntur.(PCCF &HoFFRc. No. 7864/2020/Admn.1/20/11/2020) The exhaustive mandate of the committee is as under:
1. To ascertain the extent of water body as per the revenue records,
2. To ascertain present extent of the Avilala Tank available,
3. To ascertain the number and nature of encroachments
4. To propose the action to be taken to restore the water body to its original position in tune with the directions given by the Hon‟ble Apex Court.
5. To ascertain the extent of damage, if any, caused to the environment,
6. To ascertain the nature of damage caused to the environment.
7. To assess environmental compensation and
8. To submit a factual as well as action taken report to the Tribunal
9. To submit the report on or before 12.01.2021.
The Joint Committee has inspected the Avilala tank on 18.12.2020 along with the designated representatives of various Page 11 of 49 stake holder departments/agencies such as Tirumala Tirupathi Devasthanams, Tirupathi, Tirupathi Urban Development Authority, Tirupathi, Revenue Department, Tirupathi, M/s AFCON representatives etc. With reference to the mandate given by Hon‟ble National Green Tribunal, the Joint Committee submits the following for favour of information and kind consideration of the Hon‟ble Tribunal.
1. The extent of the water body as per the revenue records:
As per the Resurvey and Resettlement register of 49, Avilala village in the Chandragiri Taluka of Chittoor District, the extent of the Avilala tank is as follows.
Sy. No. Extent
(Acres)
Tank 18/1
187.0318
/2 0.19
17/4 0.53
Cheruvu Thottu Total 187.75
(Area reserved for
excavation of earth to
meet the requirement
of bund in emergency
conditions)
19 13.87
Total 13.87
GrandTotal : 201.62
Thus total extent of water body of the Avilala Tank as per revenue records is 201.62 Acres.
2. Pr e se nt ex tent a v a i l a b l e :
The areasutilized for various purposes are as under:
Part Description of Extent Status Remarks
Land ( Acres)
Part-I Available tank bed 144.48 Available --
area on Northern
side of NH 205
Part-II Available tank bed 21.19 Available --
area on Southern
side ofNH-205
Part-III Available tank bed 0.53 Available Available after
area land in Sy. No. Hon‟ble
17/4 on Western Supreme
side the tank. Court of India
Judgment.
Part-IV Cheruvu Thottu on 13.87 Available Available after
the south side of Hon‟ble Supreme
the NH 205 which Court of India
is being used by Judgment.
M/s
AFCON for sand
dumping yard.
Total ( available) 180.07
Page 12 of 49
Part-III Tank bed area 1.12 Not Available Vide G.O.Ms.No.
given for sub- 84 Dt. 28-
station (permanent 01-
structure) 1994
Part-IV Tank bed area 10.20 Not Available As per
given for NH discrete
205 enquiry it is
(Permanen found that it is
t structure) formed prior
2006
(Suprem
e court
judgment)
Part-V Metal road is 9.90 Not Available Permission
passing on western was not given
side of by the
foreshore of Government
tank from for this road.
NH 205 On discrete
to enquiry it is
Vaikuthapuramof found that it was
Tirupathi formed after
town supreme court
(Permanent Judgment.
structure)
Part-VI Land given for road 0.33 Not Available Permission
from Tirupathi to was not given
Pachikapallam by the
(Permanent Government
Structure) for this road.
On discrete
enquiry it is
found that it was
formed after
supreme court
Judgment.
Total (Not Available) 21.55
Grand Available + not 201.62
Total available
The total extent of the erstwhile tank is 201.62 acres, consisting of tank bed of 187.75 acres and Cheruvu Thottu (Area reserved for excavation of earth to meet the requirement of bund in emergency conditions) of 13.87 acres. Out of this tank bed area, an extent of 10.20 acres of land was given for formation of NH 205 road (National Highway) which is running east-west and is passing through the foreshore/tank bed area of Avilala tank there by dividing the tank into two parts in north and south of it, which are both interconnected by an RCC Bridge. Further, on the northern side of the NH 205, an area of acres of land was allotted for sub-station vide a Govt. order which predates the Instant orders of Hon‟ble Supreme Court. Besides, an area of 9.90 acres of tank bed was utilized for construction of a metal road from NH 205 to Vaikuthapuram of Tirupathi town passing through the western side of foreshore of tank. This metallic road was constructed without any supporting Govt. Order. Further, another area of 0.33 acres of land was also utilized as part of road from Tirupathi to Pachikapallem. As regards the tank bed area of the southern side of the NH 205, out of an available area of 21.19 acre, about 18 acres of land is being used temporarily by M/s AFCON for fabrication of concrete structures for Garuda Varadhi flyover Project as per proceedings of TUDA, as stated earlier in the report. The M/s AFCON will vacate the land and remove all its temporary structures soon after completion of their project, which is to be over by the end of the year 2021. Thus different parts of the Avilala tank at present are as under:Page 13 of 49
I. Total extent of land given for various purposes : 21.55 acres.
II. a) Total extent of the tank bed area available : 165.67acres.
b) Cheruvu Thottu area : 13.87 acres
c) Land available : 0.53 acres
d) Total extent available : 180.07 acres III. Total extent of Avilala Tank area (180.07+21.55) :
201.62 acres Thus total extent of the tank Avilala Cheruvu clearly available at present is 180.07 acres including Cheruvu Thottu and land allotted for various purposes is 21.55 acres.
3. Number and Nature of t h e e n c r o a c h m e n t s :
There are no encroachments either in the form of buildings or in the form of land other than the ones mentioned above in point No. 2 "Present Extent Available". However TTD,in coordination with TUDA has planned certain developmental and beautification works in the Avilala Cheruvu tank bed area. A copy of the plan was presented before the committee by TUDA representatives during the inspection. A copy of the sketch plan is enclosed herewith for ready reference (Annexure-VII).
The proposed works for developments as per the above plan are as under:
A. On Northern side of NH 205:
S. No. Name of the Extent/area Purpose
segmen (Acres)
t
1 Formation of Mounds 27.97 For planting of all the
indigenous species of
Seshachalam forest
2 Formation of 10.64 For movement of vehicles
walkway/ carriage
way, pathway, cycle
way
3 Sheds (5 no.) 0.10 For amenities
4 Internal pathways 10.60 For movement of vehicles.
5 Formation of Lake 10.82 Acts as a major water body in
the proposed Ecological Park
6 Formation of Internal 5.27 Acts as secondary water body.
swale It stores excess water from the
garden area.
7 Formation of 1.17 Ac To maintain water constantly
ponds round the year for percolation.
8 Development of 65.00 For enhancing urban
different types of environment, promoting eco-
theme gardens tourism,
9 Untackled area 12.91 Proposed for futur
development e
10. In Sy. No. 17/4 0.53 Proposed for futur
development e
Total Area 145.01
B. On Southern side of NH 205:
Page 14 of 49
S.No. Name of segment Extent/area(A Purpose
cres)
1. M/s AFCON 18 Casting yard
casting yard
2. M/s AFCON‟s 3.19 Sand dumping/storage
sand
dumpin
g area
3. Cheruvu Thottu 13.87 Untackled area
Total 35.06
C. Encroachments in Tank:
S.No. Name of Extent/area Purpose
the (Acres)
segment
1 Sub station 1.12 Construction of Substation
2 Land for NH-205 10.20 Formation of National
Highway 205.
3 Metal Road 9.90 Road is formed on western side
of
foreshore of tank from NH 205
to Vaikuntapuram of Tirupathi
town.
4 Land for road 0.33 Formation of road to
from Tirupathi Pachikapallam
to
Pachikapallam
Total Area 21.55
Grand Total Area of Tank [A(145.01) + B(35.06) +C(21.55)] = 201.62 Acres Further, as per the above plan the following developmental activities were observed to have been taken up in the tank bedarea.
a) A compound wall for a length of about 3. 00 Kms. was constructed all along the periphery of the tank bed by removing the bund of tank.(Fig.1).
b) Whereas on two sides i.e., North and East, the compound wall is constructed, along the boundary of the tank, on southern side the compound wall is constructed on Northern side of the existing NH 205road which is not on the periphery of the tank.
On western side, the compound wall is constructed within the foreshore area of the tank. A road for a length of about 800 Mts. and with a width of about 5.00 Mts. was laid on western side of tank from NH 205 to Vaikuntapuram of Tirupathi town.
c) As regards the tank bed area on SouthernsideoftheNH205thereisno fencing/boundary wall.
d) The tank bed area of about 18.00Ac,located on the southern side of NH 205,is being used as casting yard for fabrication of concrete beams, girders etc., by M/s AFCONS Company for use in Garuda Varadhi fly over project (Fig.2).
e) There is a sand dumping yard on the south west corner of the tank bed area.
f) Formation of internal roads/pathways with metal layers, overlaid with a gravel top layer has been done within the tank bed area. These pathways are about 7.50 Mts., 6 Mts. and 3 Mts. wide in different stretches, covering a total area of about 10.60 Acre of tank bed. (Fig.3).
Page 15 of 49g) 26 nos. of pipe culverts are constructed across the above internal roads/path ways(Fig.4).
h) An area of about5.00 acres on the southern portion of the tank bed adjacent to the northern side of the NH 205 has been levelled and a spacious vehicle parking space for about 1000 nos. of vehicles has been created/developed.(Fig.5).
i) Peripheral road of width about 6.0 Mts around the tank bed area of about 2.80 Km length has been completed. The said road lies within the tank bed area.
j) Seven mounds/hillsof varying heights ranging from 4.00 Mts. to 5 .00 Mts.have been formed on south - western and western part of the tank bed to represent the seven hills of Sheshachalam hill ranges. The total area of the mounds/hills is about 28.00 Ac. The mounds/hills were formed by excavating the earth from the bed of the tank. Water has impounded at certain places in the excavated portions of the bed. (Fig.6).
k) Five (5)steel framed structures are erected on concrete blocks for creating basic amenities for facilitating the future visitors of the proposed theme park. Each structure is about 100 to 200 Sq.Mts plinth area. The proposed amenities include cafeteria, shelters from sun and rains, toilets etc.(Fig.7).
l) Protective barbed wire fencing over the compound wall is provided.
Thus it was observed that the following types and extent of encroachments and damages have been done to the erstwhile Avilala Cheruvu tank:
S. No. Structure Exten Prior to Type Agency/depa Remarks name t SC (permane rt ment (Acre order nt responsible
s) (Yes/No / semi-
) permanen
t/
temporary
)
1. Sub station 1.12 Yes Permanent AP state
Electricity Board
2. NH-205 10.20 Yes Permanent National
Highways
Authority of
India.
3. Metal Road 9.90 No Semi- TTD/TUDA
on western permanen
side of t
foreshore
tank from
NH-205 to
Vekuntapura
m
4. Land for 0.33 No Semi- TTD/TUDA
road from permanen
Tirupathi to t
pachikapalla
m
5. Formation of 27.97 No Temporary TTD/TUDA
mounds/hills
6. Formation of 10.64 No Temporary TTD/TUDA
walkway/
carriage
way,
pathway,
cycle way
Page 16 of 49
7. Foundation 0.10 No Temporary TTD/TUDA
for sheds
(5 no.)
8. Internal 10.60 No Temporary TTD/TUDA
pathways
9. Vehicle 5.00 No Temporary TTD/TUDA
Parking
area
10. Structure 18.00 No Temporary TTD/TUDA/AFC
casting ON
yard
11. Sand 13.87 No Temporary TTD/TUDA/AFC
dumping ON
Yard
12. Boundary 3.0 Km No Permanent TTD/TUDA Protects
wall around the tank
the tank area
fro
m
any land
grabbing.
Abstract of encroachment/damages to the
tank
% age Remark
s
1 Encroachm ents 21.55 10.69 --
. of tank by
permanent/s
emi-
permanent
structure
2 Other 86.18 42.74 --
. Damages by
temporary
structures
3 Total of 107.73 53.43 More than half the erstwhile tank area has
. encroachme nts been subjected to some kind of
& encroachment or damages by way of taking
damages by up some developmental works or the other.
way of
developmen tal
works.
4 Tank area 93.89 46.56 --
. without any
damage/
encroachme
Nt
Total Tank 201.62 100.00
Area acres.
Thus it is observed that an extent of 21.55 acres of tank bed area has been encroached by permanent and semi-permanent structures such as roads and highways. In the balance area some development works have been taken up by way of certain temporary structures, which can be removed for regaining the water body of the tank. Further, balance part of about 46 % of the tank is left untouched having water impounded at certain places.
Thus a total area of 180.07 acres out of the total area of 201.62 acres of the erstwhile tank can be readily worked upon to restore it as a water body. For the balance area certain remedial measures are being suggested in conformity with the ecology of the area besides awarding suitable costs to the departments/agencies.
Page 17 of 494. Proposed action to be taken to restore the water body to its Original Position.
It is observed that though the Avilala Tank was traditionally a designated tank with defined hydrological parameters, the proposals consequent to the abovementioned discussion on taking up development and beautification work of the Avilala tank, were not specifically intended to maintain it as a water body, by way of strengthening the tank bed and desilting & deepening of the tank bed and other related activities. It is amply clear that the proposed work of development and beautification of the erstwhile Avilala tank, which was subjected to siltation in the past, was never intended to restore the tank to its original glory. Instead it was proposed to be developed as a city park area with variety of landscapes and public amenities within the tank bed area viz. earthen mounds, arterial/internal roads, peripheral roads, plantations, vehicle parking, cafe etc. A small area of about 12.00Acres only was proposed to be retained as a water body. Thus instead of developing and restoring it as a water tank to its original position, the development of the area took a different turn towards development of a green city park from echo-tourism point of view. It is pertinent to mention that the permission granted to TTD was accompanied with a pre- condition to scrupulously follow the orders of Hon‟ble Supreme court and not to alter the morphology of the tank. This essentially implies taking up works of greening and beautification on the tank bunds and around the tank only and not ensuring sufficient water impounding within the tank bed area, even if it has dried up and silted over the years. By no stretch of imagination it can imply permitting creation of earthen mounds/hillocks, internal roads, culverts, peripheral roads, vehicle parking area, public conveniences, transformer, pedestals, pre- stressed concrete structure fabrication yard, plantations and greening, spiritual park, walking park, etc. within the tank bed, which if allowed would not only lead to gross tampering with the morphology of the tank it would amount to killing the very tank itself as a water body, which in turn goes against the very spirit of the orders of the Hon‟ble Supreme court.
It is pertinent to mention here that TUDA had earlier taken up the work of development and beautification of Tiruchannur tank, where in the components of works included strengthening of tank bund, desilting of tank bed, landscaping of tank bunds and plantation on the tank bund. However, the components of works proposed in the same name of "development and beautification" of Avilala tank was at stark variance with the ones proposed for Tiruchannur tank. Thus the development and beautification of Avilala Cheruvu (Tank) was construed as developing it as an urban park for the growing township with all amenities, which the petitioners have all along been objecting to in courts of law.
In view of the above and keeping in view the orders of Hon‟ble Supreme Court in this regard and also for maintaining the water body with adequate water storage in the low rainfall water scarce area like Tirupathi, restoration of Avilala tank is essential. Since a part of the Avilala tank has already lost to certain permanent structures, at least the remaining area of 180.07 acres of tank area may be restored as a water body.
Restoration of Avilala Tank to its original position consists of the key components of works as follows.
1. Stopping of any further development works in any portion of the 201 acres of area of the erstwhile Avilala tank immediately.
2. Restoration and formation of earthen bunds to its original position.
3. Removal of all the structures from the tank bed area, except the Sub- station and NH- 205, which were constructed prior to the orders of the Hon‟ble Supreme Court.
4. Restoration of inflow channels to their original position.
5. Restoration of surplus course channels to drain the designed discharge.
6. Deepening/desilting of the entire tank bed area to restore the full bed area and to regain the full storage capacity of the tank.
7. Construction of surplus weir to discharge flood water.
Page 18 of 49The Hon‟ble NGT may direct The Government of Andhra Pradesh to get a detailed Project Report (DPR) prepared though an independent agency viz. Water and Power Consulting Services (India) Ltd.(WAPCOS), CWC or any other independent agency and submit the same to the Government of Andhra Pradesh for approval. Further Govt. of Andhra Pradesh may be directed to examine the DPR and accord its approval and budgetary support for implementation by the Irrigation Department, Govt. of AP. A time frame of a maximum of twelve months may be fixed for the Government for approval of the DPR. Further the entire work of restoration of tank as a water body may be completed within a period of three years. All this has to be done under the close monitoring of the Hon‟ble National Green Tribunal. Further, since the development of the Avilala tank was given a wrong direction against the orders of the Hon‟ble Court, primarily by TTD and TUDA, the Govt. may be at liberty to fund the entire project or may secure part or whole of the funding from TTD and TUDA.
5. Extent of damage caused to the Environment, assessing the compensation and action to be taken thereon.
Due to the lack of proper guidelines, the Joint committee was not able to ascertain the exact magnitude of damage caused to the Environment. However, the committee observed that out of an area of 201.62 acres of the tank, an area of 21.55 Acres (10.69%) have been lost to permanent/semi-permanent structures and hence not available for restoration as water holding area. Thus whereas an area of 180.07 will be proposed the aforesaid DPR, the lost area of 21.55 acres cannot be retrieved. Hence, the committee is of the opinion that a proportion amount of 10.69% (21.55/201.62*100) of the DPR cost may be imposed as environmental compensation to be charged from the TTD and TUDA. This amount may be deposited with the Hon‟ble NGT which may be at liberty to use it suitably for furthering the cause of environment. This environmental compensation shall be an in addition to the work of restoration of the Avilala tank that shall be funded as per DPR.
6. Factual as well as Action Taken Report by the Joint Committee In the opinion of the Joint Committee it is clearly given in the SLP 7196 - 7197 in appeal(Civil) No.1251 of 2006 that no further construction is allowed in the Avilala tank. But as per observations of the committee on 18.12.2020 there are gross violations of the Judgment of Hon‟ble Supreme Court by the TTD/TUDA, who have taken up construction of various items as mentioned in point no. (3)above ("Number and nature of encroachments"). There was no record to show that TTD/TUDA had the prior approval of the Hon‟ble Apex court for taking u pthe aforementioned constructions. The permission given by th eIrrigation Department to TTD is only for beautification of the tank bund without affecting the morphology of the tank. All the constructions made in the tank bed area affect the morphology of the tank. The compound wall constructed all along the three sides of the tank will restrain the people from encroaching and occupying the tank bed area. But the works which were taken up in the tank bed viz. construction of Earthen mounds, Iron pillars, formation of roads, culverts etc., have affected the morphology of the tank against the pre-condition imposed by the irrigation department in view of the orders of Hon‟ble Supreme court.
The joint committee further opines that the NH-205 may be reconstructed by raising the national highway road on concrete pillars and by removing the existing road, such that the bifurcated tank area is unified and restored as one water body with restoration of 10.20 acres of area, presently encroached by the national highway. Hence, it is proposed to issue directions to NHAI to construct elevated flyovers to cross Page 19 of 49 the Avilala tank. Govt. of Andhra Pradesh/TTD/TUDA may also be instructed to restore the tank to its original position by removing all tank bed constructions except the sub- station(1.12 acres),9.90 acres of Vaikuntapuram road, 10.20 acres of NH-205 and 0.33 acres of Pachikapallm road, totaling 21.55 acres and the compound wall should be retained.
The Joint Committee constituted by the Hon‟ble NGT, Chennai finally recommends for restoration of all the components of the erstwhile Avilala tank to its original morphology and to its original storage capacity in a total area of180.07acres."
10. The District Collector - Chittoor District has also filed a dissenting note along with the Joint Committee report received by e-mail dated 11.01.2021 and extracted in Para (4) of the order which reads as follows:-
"I Sri. N. Bharath Gupta, District Collector, Chittoor and Member in the Joint committee formed by the Honourable NGT, on aavilal tank do here by submit that I differ from the opinion of the other members of the committee on the following items and suggest the modification as listed below.
It is essential to include in the scope of the agency going to be appointed (such as WAPCOS or CWC) to prepare the DPR for restoration of the avvilala tank.
A. To examine the possibility of including the theme of formation of biological theme park while restoring the avilala tank. B. It is essential to examine the scope of retaining the NH 205 road (with minor modifications) while preparing the DPR for restoration of the tank. It is to be noted that NH 205 is one of the crucial connectivity links in states of Andhra Pradesh and Karnataka. Replacement of the existing embankment formation of the road by a flyover should be the last choice while preparing the DPR. This road is formed prior to the Honourable Supreme Court Judgment on this tank.
C. It is advisable to recommend for designing the DPR in such a way, to retain most of the features existing on the area and then provide way for restoration of the water pondage in the Avilala tank. D. I submit that various departments that have worked on this project with a view of beautification and to the glory of the temple city considering the fact that the tank had already abandoned and it was not getting sufficient inflows for the last several decades. E. It is essential to examine by a committee well versed in the issues of hydrology, irrigation as to whether there is any scope to get adequate water inflow into the tank in full capacity before undertaking any restoration of the tank keeping in view of the modified inhabitation patterns in the catchment area."
11. After considering the above reports, this Tribunal permitted the official respondents to file their independent response.
12. The matter was taken up on 19.05.2021 and on that day, this Tribunal had considered the Detailed Project Report (DPR) e-filed on 12.03.2021 produced by the Regional Office, MoEF&CC, Chennai as to how the water body can be protected and extracted in Para (4) of the order which reads as follows:-
"Report accompanying the DPR for the work of "Restoration of Avilala cheruvu near Avilala (V) in Tirupathi rural mandal of Chittoor District".Page 20 of 49
Est. Rs: 9920.00 Lakhs The Avilala Cheruvu (hereinafter also referred as Avilala tank) is a water body located at about 1.20 Km Southwest of Avilala Village, Tirupathi Rural Mandal, Chittoor District, Andhra Pradesh. It is spread in survey Nos. 17/4, 18/1, 18/2 and 19 of Avilala village. The Hydraulic particulars of the water body were as follows:
FTL : +508.19'
MWL : +510.69'
TBL : +515.69'
Top Width of bund : 6', 5' and4'
Side slopes : 11/2 to 1 and 2 to 1
Height of revetment above FTL : 21/2ft
Area of water spread at FTL : 201.60 Acres
Capacity of the tank at FTL : 43.80 mcft.
Ayacut : 279.00 Acres
Length of Bund : 2720 mtrs.
Combined catchment : 5.38sq.
area miles
In the year 1994 Avilala Tank was alienated to Tirupathi Urban Development Authority (TUDA) and Andhra Pradesh, Housing Board vide G.O.Ms.No.84 (Revenue), dated: 28.01.1994. Challenging the said Govt. orders a writ petition No.8650 of 1994 was preferred in Hon'ble High Court, Hyderabad by a registered society called "The Intellectual Form". Upon dismissal of the said writ petition Special Leave Petition was preferred against the orders the Hon'ble High Court. Subsequently, Civil Appeal no. 1251 of 2006 (Arising out of SLP (Civil) Nos. 7196-7197 of 2001) was decided on 23.02.2006, wherein the Hon'ble Apex court was pleased to dispose the appeal with directions as given below.
1) No further construction to be allowed in the area.
2) Each house already constructed by the APHB/TUDA may provide for roof top rain water harvesting. All the storm water in the already built colonies to be recharged to ground water. Structures for such purposes to be designed in consultation with CGWB.
3) No bore well/tube well for any purpose to be allowed in the area.
4) An area of 40 acres presently reserved for the Government should not be developed in any way that may lead to concretization of the ground surface. Recharge structures to be constructed for rain water harvesting.
5) Piezometers to be set up at selected locations in consultation with the CGWB to observe the impact of rain water harvesting in the area ground water regime. From 2006 to 2015 no activity was taken up in the Avilala tank and it remained as a Tank only.
On 26.12.2015 during discussions held on the developmental activities of Tirupathi Page 21 of 49 Town, the Tirumala Tirupathi Devasthanams (TTD) authorities have shown interest for development and beautification of Avilala Tank as part of keeping Tirupathi town greenery and ecological balance.
The then Superintending Engineer, Irrigation Circle, Chittoor vide Lr.No. DB/SO.2/W-25, 506 M, dated 26.12.2015 had given permission to TTD for development and beautification of Avilala Cheruvu (tank),duly keeping in view the supreme court orders, by not changing the morphology of the tank. The TTD vide Lr.No. LOC No.2287/D12/CEM/TTD/TPT/2017, dt.30.05.2017 and Dt. 21.07.2017 requested the Government of Andhra Pradesh to accord permission for the work of "Development of Avilala tank at Tirupathi" with a cost of Rs.18.50 crores and to include the same in the revised budget of 2017-18. The TTD proposed to develop Spiritual Park, Aesthetic Park, walking park, develop eco- system and percolation tank etc. to improve ground water availability to improve pilgrims' amenities etc. The Government of Andhra Pradesh also accorded permission to TTD to take up the proposed works of development for the above mentioned amenities for pilgrims and public, vide G.O.Rt.No.947, dated 11.09.2017 and included the same in the revised budget of 2017-18.
The then Executive Engineer, Irrigation Division, Tirupathi vide Letter No. DB/JTO.IV/TPT/ 128 M Dt. 03-03-2018 has intimated the Chief Engineer, T.T.D., Tirupathi about the Hon'ble Supreme court orders, and requested not to take up any construction in the foreshore area of tank and also requested to stop the laying of road in the foreshore area of the tank. Further, the then Executive Engineer, Irrigation Division, Tirupathi vide Lr.No.603 SE, dated 27.10.2018 has reported to the Superintending Engineer, Irrigation circle, Chittoor that the foreshore area of Avilala tank was excavated by deploying six (6) excavators, eight (8) tippers and about thirty (30) tractors for forming hillock type structures on western side of the tank.
The Joint Executive Officer, Tirumala Tirupathi Devasthanams, Tirupathi, vide Lr.No. ROC No.2287/D12/CG/TTD/TPT/2017, dt.01.08.2018, has stated that as per the orders of Govt., in G.O.Rt.No. 947 Dt. 11-09-2017, the APUG & BCL (Andhra Pradesh Urban Greenery and Beautification Corporation Ltd.) has entered into an MOU with the TTD and have furnished the proposals for development of Avilala Ecological Park with an DPR cost of Rs.181.13 crores (Phase-1 for 80.14 crores and Phase-II for Rs100.99 crores). Further, as per the minutes communicated by the Managing Director, APUG & BCL, the Chief Minister, Govt. of Andhra Pradesh has conducted a review meeting on 04.07.2018 and gave his consent to proceed with the proposals of Phase-1.Accordingly, the Government also accorded permission to take up the development of Avilala Tank at Tirupathi with a revised project cost of Rs.80.14 crores under Phase-1, vide G.O.Rt.No.1775, dated13.12.2018, duly stipulating compliance to the directions of Hon'ble Supreme Court of India given on 23.02.2006 in SLP (civil)/1251 of 2006 (Arising out of 7196-7197 of 2001).
As the matter stood thus, the petitioners, Sri Akula Sathish Kumar and Sri B. Mohan Krishna, Tirupathi jointly submitted their representation vide letter dated 22.7.2019 to the following authorities:
Page 22 of 49(i) The Chief Secretary to Govt., A.P. Secretariat, Vijayawada
(ii) The Executive Officer, TTD, Tirupathi
(iii) The District Collector, Chittoor
(iv) Superintending Engineer, Irrigation Circle, Chittoor In their representation the petitioners have stated that the developmental works are being taken up by the TTD in Avilala Cheruvu, i.e., construction works of Sri Venkateswara Spiritual theme park, by flouting the orders of the Hon'ble Supreme Court and requested the authorities to ensure that the activities are in conformity with the Judgment of Hon'ble Supreme court of India(Supra). Otherwise, they cautioned that, they will have no alternative except to file an application before the Hon'ble National Green Tribunal against the authorities.
The Superintending Engineer, Irrigation Circle, Chittoor vide Lr.No.SE/IC/CTR/DB/T4/ATO/W.25/739 M, dated 07.08.2019 requested the TTD authorities not to take up any permanent structure in the Avilala Tank and restore the tank to its original morphology. Violation of the condition/ changing the morphology of the tank leads to legal complications to be faced by all the concerned departments. The Superintending Engineer, Irrigation Circle, Chittoor also addressed the District Collector, Chittoor with a request to address the TTD authorities not to take up any permanent structure in the foreshore of the tank by changing the morphology of the tank and instructed the Executive Engineer, Irrigation Division, Tirupathi to submit a detailed status report.
The then Executive Engineer, Irrigation Division, Tirupathi along with Deputy Executive Engineer, Irrigation Sub-Division, Tirupathi and Assistant Engineer, Tirupathi Rural have inspected the Avilala tank on 04.09.2019 and found that the following structures were constructed by the TTD.
1) Compound wall: 90% of compound wall, all along the tank, was completed by demolishing the tank bund.
WMM Road: Metal layers were laid without blacktopping.
2) CM&CD works: Two culverts with pipes were constructed.
3) Shed: 5 Nos of iron pillars with trusses without roof covering are erected.
4) Buildings: Columns up to plinth level was constructed.
5) Earthen mounds and bund: Earthen mounds and bund are formed in
6) the foreshore area.
7) Temporary shed: one temporary shed was constructed. The TTD authorities had changed the morphology of the tank in violation of the conditions stipulated by the Irrigation department while permitting the development works as mentioned above. The same was intimated to the Superintending Engineer, Irrigation Circle, Chittoor vide Lr.No. DB/JTO.IV/Avilala/513 SE, Dt.18.09.2019.
The Executive Engineer further submitted that the southern side of Avilala tank is being used by the AFCONS Company for fabrication and storage of materials required for construction of Garuda Varadhi fly over in Tirupathi city, a project taken up by TUDA, Tirupathi. On enquiry, the M/s AFCONS have furnished records of permission accorded to them vide the proceedings of the Vice Chairman, TUDA, Tirupathi, which in turn have given reference of the G.O.Ms.No. 408, Municipal Page 23 of 49 Administration and urban development (UBS) Department Dt. 18-12-2018, in pursuance of which the said proceedings were issued. The above GOMs. No.408 reads as under:
"The land falling in alignment and belonging to TTD/TUDA/MCT/APSRTC and any other Government properties shall be handed over to TSCCL for project execution".
In accordance with the above Govt. Orders, the TUDA has permitted M/s AFCON to utilize the land in Sy.No. 19 of Avilala village on a nominal rent of Rs. 2.00 Lakhs (Rupees two lakhs only) per month for setting up of casting yard of Garuda Varadhi project with a condition to the effect that they should vacate the land after Garuda Varadhi project work is over or as and when this authority requires the land whichever is earlier. Further, the agency should adhere to the following conditions. The company is permitted to utilize the land purely for casting/storage of materials relating to the Garuda Varadhi project and should not cause any damages or obstruct natural watercourse.
They should not raise any permanent constructions. They should not change any physical features of the land. The then Executive Engineer, Irrigation Division, Tirupathi has requested the Superintending Engineer, Irrigation Circle, Chittoor to address the TUDA authority seeking the grounds based on which it issued the above proceedings, permitting M/s AFCONS to utilize the Avilala tank bed for the purpose of casting yard.
The Superintending Engineer, Irrigation Division, Chittoor vide Lr.No.SE/IC/CTR/DB/T4/ATO/W.25/921 M, dated 09.10.2019has once again requested the TTD authorities not to take up any permanent structures in the foreshore area of the Avilala tank and regain the tank to its original morphology as per the aforementioned judgment of the Hon'ble Supreme Court of India. The Superintending Engineer, Irrigation Circle, Chittoor submitted the copy to the District Collector, Chittoor with a request to address the TTD authorities not to take up any permanent structures in the tank thereby changing the morphology of the tank. The Superintending Engineer, Irrigation Circle, Chittoor also instructed the Executive Engineer, Irrigation Division, Tirupathi to address the TUDA, Tirupathi regarding allotment of land to M/s AFCONS company for setting up the casting yard for Garuda Varadhi Project and evict the encroachment immediately with the support of revenue authorities.
On 24.06.2020, Avilala Cheruvu Parirakshana Samiti represented by its convener Sri.Akula Satish Kumar, Tirupathi and Swarnamukhi Bachavo Andolan Samiti represented by its president Sri B. Mohan Krishna have approached the Hon'ble National Green Tribunal, (SZ), at Chennai and filed an application No.156 of 2020 (SZ),challenging the permission given by Irrigation Department for taking up development and beautification works in the Avilala Cheruvu and requested the Hon'ble Tribunal to inter alia direct the concerned authorities to refrain from taking up any development works in the catchment area of the Avilala Cheruvu and restore the its water body to its original position, without reducing the capacity of the tank, besides awarding cost to the respondents.
The Executive Engineer, Irrigation division, Tirupathi vide Lr. No. DB/JTO-4/ Encroachments/ 603 M Dt. 31-08-2020, has requested the Vice Chairman, TUDA, Tirupathi for cancellation of permission given to the M/s AFCONS Company by the Page 24 of 49 TUDA authorities for utilizing the part of Avilala tank bed. The Executive Engineer, Irrigation division, Tirupathi vide, Lr.No. DB/JTO-4/ Encroachments/ 604 M Dt. 31-08- 2020, has also requested the Executive Officer, T.T.D, Tirupathi for regaining the morphology of Avilala tank and restoring the bunds of the Avilala tank to comply with the said orders of the Hon'ble Supreme court of India.
On 23.09.2020 the Executive Engineer, Irrigation Division, Tirupathi SriJ. Venkata Siva Reddy, S/oJ. Reddeppa Reddy has submitted counter affidavit to the Hon'ble National Green Tribunal, Chennai.
Joint Committee - O.A. No. 156 of 2020 dated 05.11.2020 The Hon'ble NGT, Chennai in its order dated 05.11.2020, considering the prevailing circumstances and submissions made by both the parties and also considering the allegations made, appointed a Joint Committee comprising of the following members, to inspect and ascertain the present status of the area i.e. the Avilala Tank.
1. Senior Officer from Ministry of Environmental, Forests and Climate change, Integrated Regional Office (IRO), Chennai.
2. The District Collector, Chittoor District.
3. Superintending Engineer, Irrigation Department.
4. An officer from the office of the principal Chief Conservator of Forests & Head of ForestForce(HOFF)notbelowtherankofChiefConservatorofForeststobedeputed by the Principal Chief Conservator of Forest & Head of Forest Force (HOFF). The committee was directed to ascertain the extent of water body as per the revenue records, the present extent available, number and nature of encroachment and what is the proposed action to be taken to restore the water body to its original position in tune with the directions given by the Hon'ble Apex Court and any damage has been caused to environment, what is the nature of damage caused and assess environmental compensation and submit a factual as well as action taken report to the Tribunal on or before 12.01.2021.
As per the above directions of the Hon'ble NGT, Chennai, a Joint Committee was formed duly comprising of the following officers:
1. Dr. C. Palpandi, Scientist-C from Ministry of Environmental, Forests and climate change will act as a Nodal Officer.
2. Dr. N. Bharat Gupta, IAS, The District Collector, Chittoor
3. Sri. M. Surendra Reddy, Superintending Engineer, Irrigation Circle, Chittoor.
4. Sri. R.K. Suman, IFS, Additional Principal Chief Conservator of Forests, Government of Andhra Pradesh, Guntur.(PCCF &Ho FFRc. No. 7864/2020/Admn.1/20/11/2020) The exhaustive mandate of the committee is as under:
1. To ascertain the extent of water body as per the revenue records,
2. To ascertain present extent of the Avilala Tank available,
3. To ascertain the number and nature of encroachments
4. To propose the action to be taken to restore the water body to its original position in tune with the directions given by the Hon'ble Apex Court.
5. To ascertain the extent of damage, if any, caused to the environment, Page 25 of 49
6. To ascertain the nature of damage caused to the environment.
7. To assess environmental compensation and
8. To submit a factual as well as action taken report to the Tribunal
9. To submit the report on or before 12.01.2021.
The Joint Committee has inspected the Avilala tank on 18.12.2020 along with the designated representatives of various stake holder departments such as Tirumala Tirupathi Devasthanams, Tirupathi, Tirupathi Urban Development Authority, Tirupathi, Revenue Department, Tirupathi, M/s AFCONS representatives etc. With reference to the mandate given by Hon'ble National Green Tribunal, the Joint Committee submits the following for favour of information and kind consideration of the Tribunal.
1. The extent of the water body as per the revenue records:
As per the Resurvey and Resettlement register of 49, Avilala village in the Chandragiri Taluka of Chittoor District, the extent of the Avilala tank is as follows.
Sy. No. Extent (Acres)
Tank 18/1 187.03
18/2 0.19
17/4 0.53
Total 187.75
Cheruvu Thottu
(Area reserved for
excavation of earth
to meet the
requirement of
bund in emergency 19 13.87
conditions) Total 13.87
GrandTotal : 201.62
Thus total extent of water body of the Avilala Tank as per revenue records is 201.62 Acres.
2. P r esen t exten t a v a ila b le:
The area of the utilized for various purposes is as under:
Part Description of Extent Status Remarks land (Acres) Part- On Northern side 144.48 Available I of NH 205 Part- On Southern side 21.19 Available II of NH-205 Part- Land available in 0.53 Available Available after III Survey number Hon'ble Supreme Page 26 of 49 17/4 Court of India Judgment.
Part- Extent available Available Available after
IV in Survey no.19 Hon'ble Supreme
Cheruvu thottu 13.87 Court of India
Judgment.
Available =
Extent 180.07
Part- Land given for sub- 1.12 Not Vide G.O.Ms.No.
V station (permanent Available 84 Dt. 28-01-1994
structure)
Part- Land given for NH 10.20 Not As enquired in the
VI 205 (Permanent Available office of Revenue
structure) divisional officer,
Tirupathi it is
found that the
land was given to
NH in the year
2003 the records
or not traced out.
Part- Metal road is 9.90 Not Permission was
VII passing on western Available not given by
side of Government for
foreshore of tank this road
from NH 205 to On enquiry with
Vaikuthapuram of local people it
Tirupathi town is found that
(Permanent the road was
structure) formed after
the Judgement
of the Hon'ble
Supreme Court
in SLP(Civil) Nos.
7196-7197 of
2001)
Part- Land given for road Not Permission was
VIII from Tirupathi to Available not given by
Pachikapallam Government for
(Permanent this road
Structure) 0.33 On enquiry with
local people it
= 21.55 is found that
Not Available the road was
Extent formed before
the Judgement
of the Hon'ble
Supreme Court
Page 27 of 49
in SLP(Civil) Nos.
7196-7197 of
2001)
Total tank bed area 201.62
(Part I to Part VIII) = Acres
The total extent of the erstwhile tank is 201.62 acres, out of which the extent of tank bed is 187.75 acres and Cheruvu Thottu (Area reserved for excavation of earth to meet the requirement of bund in emergency conditions) is 13.87acres.
Out of this tank bed area, an extent of 10.20 acres of land was given for formation of NH 205 road (National Highway) which is running east -west and is passing through the foreshore/tank bed area of Avilala tank thereby dividing the tank into two parts of areas144.38 acres on the north and 21.19acres on the south of it, which are both interconnected by an RCC Bridge. Further, an area of 1.12 acres of land was allotted for sub -station vide a Govt. order which predates the Instant orders of Hon'ble S upreme Court. Besides, an area of 9.90 acres of tank bed was utilized for construction of a metal road from NH 205 to Vaikuthapuram of Tirupathi town passing through the western side of foreshore of tank. This metal road was constructed without any support ing Govt. Order. Further, another area of 0.33 acres of land was utilized as part of road from Tirupathi to Pachikapalem which is also doesn't have any Govt. orders. Thus different parts of the Avilala tank at present are as under:
1. Extent of land given for various purposes : 21.55 acres.
2. A).Extent of the tank bed area available : 165.67acres B).Cheruvu thottu area available : 13.87acres.
C).Land in Survey no.17/4 : 0.53 acres
TOTAL area available (2.A+B+C) : 180.07 acres
3. Total extent of the tank (1 (21.55 acres) +2 (180.07 acres) = 201.62acres.
Thus total extent of the tank Avilala Cheruvu clearly available at present is 165.67 acres.
3. Number and Nature of the en c r o a c h m en ts:
There are no encroachments either in the form of buildings or in the form of land other than the ones mentioned above in point No. 2 "Present Extent Available". However T.T.D. (Tirumala Tirupathi Devasthanams) in coordination with the TUDA (Tirupathi Urban Development Authority) has planned for taking up certain developmental and beautification works in the Avilala Cheruvu tank bed area. A copy of the plan was presented before the committee by TUDA representatives during the inspection.Page 28 of 49
The proposed works for developments as per the above plan are as under:
1. On North Side of NH-205:
Sl Name of the Extent/ Purpose Remarks
N segment area
o
1 Formation of 27.97 For planting of all the
Mounds Ac indigenous species of
Seshachalam forest
2 Formation of 10.64 For movement of vehicles
walkway/ Ac
carriage way,
pathway, cycle
way
3 05 nos of 0.1 For amenities
Sheds Ac
4 Internal 10.60 For movement of vehicles.
pathways Ac
5 Formation of 10.82 Acts as a major water body in
Lake Ac the proposed Ecological Park
6 Formation of 5.27 Ac Acts as secondary water
Internal swale body. It stores excess water
from the garden area.
7 Formation of 1.17 Ac To maintain water constantly
ponds round the year for
percolation.
8 Development 65.00 For enhancing urban
of different Ac environment, promoting eco-
types of tourism,
theme gardens
9 Untackled 12.91
area Ac
1 In Survey 0.53
0 no.17/4 Ac
TOTAL AREA
145.01
Ac
2. On South Side of NH-205:
Sl Name of the Extent/ Purpose Remarks
N segment area
Page 29 of 49
o
1 Afcon's 18 Casting yard
Casting yard Ac
2 Sand dumping 3.19 Sand dumping
area Ac
3 Cheruvu 13.87 Untackled area
thottu Ac
TOTAL AREA 35.06
Ac
3. Encroachments in Cheruvu:
Sl Name of the Extent/ Purpose Remarks
N segment area
o
1 Sub Station 1.12 Construction of Sub
Ac Station
2 Land for NH- 10.2 Formation of NH-205
205 Ac road.
3 Metal road 9.90 Road is formed on
Ac Western side of Foreshore
of tank from NH-205 to
Vaikuntapuram of
Tirupathi town.
4 Land for road 0.33
from Tirupathi Ac
to
Pachikapallam
TOTAL AREA 21.55
Ac
Total Area of the Tank
(1. On North Side of NH-205 (145.01 acres)
+ 2. On South Side of NH-205 (35.06 acres) = 201.62 Acres
+ Encroachments in Cheruvu (21.55 acres)
Further, as per the above plan the following developmental activities were taken up in the tank bed area.
a) A compound wall for a length of about 3. 00 Kms was constructed all Page 30 of 49 along the periphery of the tank bed by removing the bund of tank .
b) Whereas on two sides i.e., North and East, the compound wall is constructed, along the boundary of the tank, on southern side the compound wall is constructed on Northern side of the existing NH 205 road which is not on the periphery of the tank. On western side, the compound wall is constructed within the foreshore area of the tank. A road for a length of about 800 Mts and with a width of about 5.00 Mts was laid on western side of tank from NH 205 to Vaikunthapuram of Tirupathi town.
c) As regards the tank bed area on Southern side of the NH 205 there is no fencing/boundary wall.
d) The tank bed area of about 18.00Ac,located on the southern side of NH 205, is being used as casting yard for fabrication of concrete beams, girders etc., by M/s AFCONS Company for use in Garuda Varadhi fly over project.
e) There is a sand dumping yard on the south west corner of the tank bed area on the north of the NH 205.
f) Formation of internal roads/pathways with metal layers, over laid with a gravel top layer has been done within the tank bed area. These pathways are about 7.50 Mts., 6 Mts. and 3 Mts. wide in different stretches, covering a total area of about 10.60 Acre of tank bed.
g) 26 nos. of pipe culverts are constructed across the above internal roads/path ways .
h) An area of about5.00 acres on the southern portion of the tank bed adjacent to the northern side of the NH 205 has been levelled and a spacious vehicle parking space for about 1000 nos. of vehicles has been created/developed.
i) Peripheral road of width about 6.0 Mts around the tank bed area of about 2.80 Km length has been completed. The said road lies within the tank bed area.
j) Seven mounds/hills of varying heights ranging from 4.00 Mts. to 5.00 Mts. have been formed on south - western and western part of the tank bed to represent the seven hills of Sheshachalam hill ranges. The total area of the mounds/hills is about 28.00 Ac. The mounds/hills were formed by excavating the earth from the bed of the tank. Water has impounded at certain places in the excavated portions of the bed.
k) Five (5) steel framed structures are erected on concrete blocks for creating basic amenities for facilitating the future visitors of the proposed theme park. Each structure is about 100 to 200 Sq.Mts plinth area. The proposed amenities include cafeteria, shelters from sun and rains, toilets etc
l) Protective barbed wire fencing over the compound wall is provided.
m) On South side, out of available extent of 21.19 acres, 3.19 acres is used as Sand dump area.
n) On South side of NH-205, 13.87 acres of Cheruvu thottu land is available Page 31 of 49 on the South west corner of the tank bed area in Survey no.19.
o) On North side, 53 cents of land is available in Survey no.17/4 on Western boundary of the area.
Thus it was observed that the following types and extent of encroachments and damages have been done to the erstwhile Avilala Cheruvu tank:
S no. Structure name Exte Prior to SC Type Agency/ Remarks nt order (permanent/ department (y/n) non- responsible permanent)
1. Sub Station 1.12 Yes Permanent Ac
2. NH 205 10.2 Yes Permanent 0 Ac
3. Land for road 0.33 No Permanent from Tirupathi Ac to Pachikapallam
4. Metal road on 9.90 No Non-
western side of Ac Permanent
Foreshore of
tank from NH-
205 to
Vaikuntapuram
21.5
5
Total
Acre
s.
5 Tank Bed area 180.
(Total Tank bed 07
area 201.62 Ac Ac
- Constructions
21.55 Ac)
TOTAL area 201.
(1+2+3+4+ 5) 62
Acre
s
4. Proposed action taken to restore the water body to its Original Position.
It is observed that though the Avilala Tank was traditionally a designated tank with defined hydrological parameters, the proposals consequent to the above mentioned discussion on taking up development and beautification work of the Avilala tank, were not specifically intended to maintain it as a water body, by way of strengthening the tank bed and desilting& deepening of the tank bed and other related activities. It is amply clear that the proposed development and beautification of the erstwhile Avilala tank, which was subjected to heavy Page 32 of 49 siltation, the tank area bulldozed and bund is damaged to become almost non- existent over the years, was never intended to restore the tank to its original glory. Instead it was proposed to be developed as a city park area with variety of landscapes and public amenities within the tank bed area viz. earthen mounds, arterial/internal roads, peripheral roads, plantations, vehicle parking, cafe etc. A small area of about 12.00 Acres only was proposed to be retained as a water body. Thus instead of developing and restoring it as a water tank to its original position, the development of the area took a turn towards development of green city park from echo-tourism point of view. It is pertinent to mention that the permission granted to TTD was accompanied with a pre- condition to scrupulously follow the orders of Hon'ble Supreme court and not to alter the morphology of the tank. This essentially implies taking up works of greening and beautification on the tank bunds only and ensuring water impounding within the tank bed area, even if it has dried up and silted over the years. By any stretch of imagination it cannot imply permitting creation of earthen mounds/hillocks, internal roads, culverts, peripheral roads, vehicle parking area, public conveniences facility, transformer, pedestals, pre-stressed concrete structure fabrication yard, plantations and greening, spiritual park, walking park, etc. within the tank bed, which if allowed would not only lead to gross tampering with the morphology of the tank it would amount to killing the very tank itself as a water body, which in turn goes against the very spirit of the orders of the Hon'ble Supreme court (supra). It is pertinent to mention that TUDA had earlier taken up the work of development and beautification of Tiruchanur tank, where in the components of works included strengthening of tank bund, desilting of tank bed, landscaping of tank bunds and plantation on the tank bund. However, the components of works proposed in the same name of "development and beautification" of Avilala tank was at stark variance with the ones proposed for Tiruchanur tank. Thus the development and beautification of Avilala Cheruvu (Tank) was construed as developing it as an urban park for the growing township with all amenities, which the petitioners have all along been objecting in courts of law.
In view of the above and keeping in view the orders of Hon'ble Supreme Court in this regard and also for maintaining the water body with adequate water storage in the low rainfall water scarce area like Tirupathi, restoration of Avilala tank is essential. Since a part of the Avilala tank has already lost to certain permanent structures, at least the remaining area of 180.07 acres of tank area may be restored as a water body.
Restoration of Avilala Tank to its original position consists of the key components of works as follows.
1. Stopping of any further development works in any portion of the area of the erstwhile Avilala tank immediately.
2. Restoration and formation of earthen bunds to its original position.
3. Removal of all the structures from the tank bed area except Substation and NH road - 205 which were constructed prior to the orders of the Hon'ble Supreme Court.
4. Restoration of inflow channels to their original position.
5. Restoration of surplus course channels to drain the designed discharge.
Page 33 of 496. Deepening/desilting of the tank bed area to restore the full bed area to regain the full storage capacity of the tank.
7. Construction of surplus weir to discharge flood water.
The Hon'ble NGT may direct Government to get a detailed Project Report (DPR) prepared though an independent agency preferably WAPCOS, CWC or any other independent agency and submit the same to the Government of Andhra Pradesh for approval. Further Govt. of Andhra Pradesh may be directed to examine the DPR and accord its approval and budgetary support. A time frame of a maximum of twelve months may be fixed for the Government for the above work. Further the entire work of restoration of tank as a water body may be completed within a period of three years. Further, since the development of the Avilala tank was given a wrong direction against the orders of the Hon'ble Court, primarily by TTD and TUDA, they should jointly bear the cost of restoration of the tank to its original position.
5. Extent of damage caused to the Environment.
(To be completely redrafted with correct data) Due to the lack of proper guidelines, the Joint committee was not able to ascertain the exact magnitude of damage caused to the Environment. However, the committee observed that out of an area of 201.62 acres of the tank bed area, an area of 21.55 Acres (10.69%) have been lost to permanent structures and hence not available for restoration as water holding area. Thus wherea s an area of 180.07 acres will be proposed the aforesaid DPR, t he lost area of 21.55 acres cannot be retrieved. Hence, the committee is of the opinion that a proportion amount of 10.69% (21.55 / 201.62 * 100) of the DPR cost may be imposed as environmental compensation to be charged from the TTD and TUDA. This amount may be deposited with the Hon'ble NGT which may be at liberty to use it suitably for furthering the cause of environment. This environmental compensation shall be an in addition to the work of restoration of the Avilala tank that they have to fund as per DPR.
6. Factual as well as Action Taken Report by the Joint Committee (to be completely redrafted) In the opinion of the Joint Committee it is clearly given in the SLP 7196 - 7197 in appeal (Civil) No.1251 of 2006 that no further construction is allowed in the Avilala tank. But as per observations of the committee on 18.12.2020 there are gross violations of the Judgment of Hon'ble Supreme Court by the TTD/TUDA, who have taken up construction of various items as mentioned in point (3) above (Number and nature of the encroachments). There was no record to show that TTD/TUDA had the prior approval of the Apex court for taking up the aforementioned constructions. The permission given by the Irrigation Department to TTD is only for beautification of the tank bund Page 34 of 49 without affecting the morphology of the tank. All the constructions made in the tank bed area affect the morphology of the tank. The compound wall constructed all along the three sides of the tank will confine the people from occupying the tank bed area and prevent encroachments. But the works which were taken place in the tank bed viz. construction of Earthen mounds, Iron pillars, formation of roads, culverts etc., have affected the morphology of the tank against the precondition imposed by the irrigation department.
The Joint committee further opined that the NH -205 may be reformed by raising up to Top bund level (TBL) of tank on the Concrete pillars such that the tank will be restored as one water body as the restoration of the tank to its full capacity will submerge the existing NH -205 road in an extent of 10.20 acres. Hence it is proposed to issue directions to NH authorities to construct elevated fly over to cross the Avilala tank. The TTD/TUDA may be instructed to restore the tank to its original position by removing all tank bed constructions except the compound wall.
The Joint Committee constituted by the Hon'ble NGT, Chennai finally recommends for restoration of all the components of the erstwhile Avilala tank to its original morphology, to its original storage capacity in an area 180.07 Acres.
The District Collector, Chittoor and Member in the Joint committee formed by the honorable NGT, on avilala tank differed from the opinion of the other members of the committee on the following items and suggest the modifications as listed below:
It is essential to include in the scope of the agency going to be appointed (such as WAPCO S or CWC) to prepare the DPR for restoration of the Avilala tank.
1. To examine the possibility of including the theme of formation of biological theme park while restoring the Avilala tank.
2. It is essential to examine the scope of retaining the NH205 ro ad (with minor modifications) while preparing the DPR for restoration of the tank.
3. It is to be noted that NH205 is one of the crucial connectivity links in states of Andhra Pradesh and Karnataka. Replacement of the existing embankment formation of the road by flyovers should be the last choice while preparing the DPR. This road is formed prior to the Honorable Supreme Court judgment on this tank.
4. It is advisable to recommend for designing the DPR in such a way, to retain most of the features existing on the area and then provide way for restoration of the water pondage in the Avilala tank.
5. Various departments have worked on this project with a view of beautification and to the glory of the temple city considering the fact that the tank had already abandoned and it was not getting sufficient inflows for the last several decades.
6. It is essential to examine by a committee well versed in the issues of hydrology, irrigation as to whether there is any scope to get adequate Page 35 of 49 water inflow into the tank in full capacity before undertaking any restoration of the tank keeping in view the modified inhabitation patterns in the catchment area.
The Superintending Engineer, Irrigation Circle, Chittoor vide Memo No. DB/T.4/NGT/OA.No.156 of 2020/13TPT, Dt : 18-01-2021 has instructed to prepare the Detailed project report with current SSR for restoration of the Avilala Tank duly following the Joint Committee report submitted to the National Green Tribunal.
Accordingly, the levels for the formation of the bund were taken and DPR is prepared as per the M.I Guidelines. But top width of the bund is proposed as 14 meters keeping in view beautification of bund in the urban areas. The length of the Surplus weir is proposed as per the memoirs. The cut off trench is proposed upto the FRL depth based on the soil conditions in the nearby bore wells. Further grouting at 3.0 meter interval is proposed to avoid seepage to the downstream as there is residential area on downstream of the tank. The FRL of the tank is taken as +100.000 m. As per the DPR, the salient features of the tank are as follows:
FTL : +100.000 M
MWL : +100.600 M
TBL : +102.100 M
Top Width of bund : 14.00 M
Side slopes : 2 to 1 and 2 to 1
Capacity of the tank at FTL : 42.00 mcft.
Length of Bund : 2500 mtrs.
The Surplus Course was encroached and unauthorized constructions have taken place along the Surplus course. To discharge the Surplus water, it is proposed to excavate the Surplus channel with a width of 3 meters from Avilala tank to Oteru tank on the Southern edge of the right of way of NH-205. From Oteru tank there is a Surplus channel which discharges the water into Swarnamukhi River. The bottom and sides of the channel from Avilala tank to Oteru tank is designed as a troug h. As per the information of the officials of Revenue department, the total width acquired for NH -205 is 60 meters. Utilization of 3 meters for the channel from the land acquired for the NH-205 duly taking the permission may not affect the purpose of NH -205. If the land is acquired beyond the right of way, the extent of the land required for Surplus channel is 8600 Sq.yards. The cost of the land is taken as per the Registration value available in the website of Registration department. The top of the Road level is 101.00 i.e., 1.0 meters above the FRL of the tank. But 1.1 meter below the TBL of the tank. The NH road should have been laid above the TBL of the tank. Hence the road should be raised above the TBL of the tank. The cost of rising is worked out by taking the cost from the concessioner who is dealing with road from Puthalapattu to Chandragiri and the cost is Rs. 27,000 per Sq.meter. Further there is a proposal to convert the existing four lane to six lane. At the time of conversion, the existing road will be removed Page 36 of 49 and fresh road will be formed. At the time of new formation, the road will be raised above the TBL.
The inlet channels for the Avilala tank are by way of Kasam channels namely Cheruvukasam, Gundlavanikasam and Kandevarikasam.Kandevarikasa m was vacant to some extent in the head reach but houses were constructed in the tail reach. Gundlavanikasam was not encroached but it was flattened on the ground. Houses were constructed in the head reach along the Cheruvukasam and the kasam is vacant and flattened in the tail reach. Further there is a possibility to bring water from the Avilala tank in the right of way of NH-205.
The capacity of the tank is worked out to be about 36 Mcft and the capacity will be increased by about 6 Mcft by usage of soil for formation of the bund from the foreshore area of the tank. Thus the total capacity of the tank will be about 42 Mcft as against 43.80 Mcft as per the memoirs of the tank. By restoration of the tank 96% of the tank capacity will be restored.
The DPR is prepared with the following provisions:
1. Earth work in excavation in all kinds of soils of foundation of structures as per drawing and technical specification, including setting out, construction of shoring and bracing, removal of stumps and other deleterious matter, dressing of sides and bottom and backfilling with approved material. Depth upto 3 m.
2. Providing and laying insitu vibrated M-10 (28 days cube compressive strength not less than 10 N / sq mm) grade cement concrete using 40 mm down size approved, clean, hard, graded aggregates for foundation filling including cost of all materials, machinery, labour, formwork, cleaning, batching, mixing, placing in position, levelling, vibrating, finishing, curing etc., complete with initial lead upto 50 m and all lifts.
(Cement content: 220 kg / cum with use of super plasticiser(0.4% by wt. of cement), CA : 0.90cum, Blending Ratio of CA --50:30:20, FA : 0.40 cum)
3. Providing and laying insitu v ibrated M-15 (28 days cube compressive strength not less than 15 N / sq mm) grade cement concrete using 80 mm down size approved, clean, hard, graded aggregates for piers and abutments including cost of all materials, labour, machinery, formwork, cleaning, batching, mixing, placing in position, levelling, vibrating, finishing, curing etc., complete with initial lead upto 50 m and all lifts.
4. Providing and laying insitu M- 20 (28 days cube compressive strength not less than 20 N /sqmm) grade cement concrete using 20 mm down size approved, clean, hard, graded aggregates for wearing coat including cost of all materials, machinery, labour, formwork,cleaning, batching, mixing, placing in position in alternate panels, levelling, compacting,finishing, curing, packing joints with asph alt mortar etc., complete with initial lead upto 50 m and all lifts.
5. Providing cut-off trench filling using selected impervious soil from approved borrow areas in layers of 25 to 30 cm before compaction including cost of all materials, machinery, labour, a ll operations such as excavation, sorting out, transportation, spreading soil to specified Page 37 of 49 thickness,breaking clods, sectioning, watering, compacting to density control of not less than 95 percent using Sheep foot roller / Vibratory roller/ 8 to 10 tonne power roller as stipulated etc., complete with initial lead upto 1 km and all lifts. (IRR -DAW-5-2)
6. Providing casing embankment using semi-pervious soil available from excavation in layers of 25 to 30 cm before compaction including cost of all materials, machinery, labour, all other operations such as re- excavation, sorting out, transportation, spreading in layers of specified thickness, breaking clods, sectioning, watering, compacting to specified density control of not less than 95 percent using Sheep foo t roller / Vibratory roller/ 8 to 10 tonne power roller as stipulated etc.,complete with initial lead upto 1 km and all lifts.
7. Providing homogeneous embankment using soil from approved borrow area in layers of 25 to 30 cm before compaction including cost o f all materials, machinery, labour, all operations such as excavation, sorting out, transportation, spreading soil in layer of specified thickness, breaking clods, sectioning, watering, compacting to density control of not less than 95 percent or as stipulated using Sheep foot roller / Vibratory roller/ 8 to 10 tonne power roller etc., complete with initial lead upto 1 km and all lifts.
8. Providing and Constructing 30 cm thick dry rubble stone pitching including cost of all materials,labour,hand packing,finishing etc.,complete ( rubble stones : 0.33 cum/sqm)
9. Providing and laying of 45 cm thick gravel backing below pitching including cost of all materials, labour, finishing etc., complete( If 15 cm of murrum bed provided below pitching 0.18 cum/sqm of gravel)
10. Providing and constructing 225 mm thick dry rubble stone pitching including cost of all materials, labour, hand packing, finishing etc., complete (rubble stones : 0.2475 cum/sqm) (For Maintenance Works)
11. Providing and constructing dry rubble rock -toe using rubble and stone chips from approved source including cost of all materials, machinery, labour, hand packing rubble and stone chips, finishing top and sides to required slopes etc., complete with initial lead upto 50 m and all lifts.
12. Providing and filling murrum / gravely soil ( CNS soil ) for foundation or around pipes including breaking clods, spreading in layers of 10 to 15 cm, watering, compaction by earth masters to achieve density control of not less than 95 percent etc., complete with lead upto 50 m and all lifts.
13. Providing and laying sand blanket below embankment including cost of all materials, machinery, labour, spreading to specified thickness etc., complete with initial lead upto 50 m and all lifts.
14. Providing and laying Hariyala or other appro ved quality turfing sods for the slopes of earthen embankments over 20 mm thick sand backing including cost of all materials, machinery, labour including preparing surface, spreading sand, watering for 15 days etc., complete with initial lead upto 1 km and all lifts.
15. Providing, fabricating and placing in position reinforcement steel bars for RCC works including cleaning, straightening, cutting, bending, Page 38 of 49 hooking, lapping, welding wherever required,tying with 1.25 mm dia soft annealed steel wire, including cost of all materials, machinery, labour etc.,complete with initial lead upto 50 and all lifts.
16.Providing and forming 35 mm wide and 10 mm thick construction / contraction joints for concrete lining by mastic filler including cost of all materials, labour etc., complete all leads and lifts
17.Providing and constructing longitudinal and cross graded filter drains using sand and 80-20 mm and 20 mm downgraded aggregates satisfying specified filter criteria in layers as per specifications including cost of all materials, machinery, labour, laying to required slopes,compaction etc. complete with initial lead upto 50 m and all lifts. (IRR-DAW-6-2)
18.Drilling 32 mm diameter grout holes in concrete / rock by percussion drilling using jack hammer or stooper drills as directed to specified depth for consolidation / contact grouting including cost of all materials, machinery, labour, cleaning holes, ventilation, lighting, drainage and all other ancillary operations etc., complete.
19.Curtain grouting with neat cement grout mix of suitable consistency under specified pressure as directed in drilled holes by stage grouting method including cost of all materials, machinery, labour, redrilling if necessary etc., complete with initial lead upto 1 km and all lifts. (IR RDAW-1-12 (b)).
20.Rising of NH-205 above TBL by way of piers.
21.Provision for Land Acquisition.
The DPR is prepared with the SSR for the year 2020-21 and the cost of the DPR is worked out to be Rs. 9920.00 Lakhs."
13. Thereafter, this Tribunal passed the following order:-
"5. It is for the State Government to file their stand as to how they are going to implement this DPR to protect the disputed water body, namely, Avilala Cheruvu. So, the State of Andhra Pradesh is directed to file their response to the same and also the steps that they are going to take to implement the DPR submitted by the MoEF&CC as directed by this Tribunal to protect this water body before the next date of hearing.
6. They are directed to submit the steps to be taken to protect this water body as envisaged in the DPR and time required. MoEF&CC is also directed to give their explanations as to how they proposed development of different types of theme gardens in 65 acres of land for enhancing urban environment, promoting eco-tourism and whether this area is outside the lake area or within the lake area reducing the water holding capacity of the lake, if so they are directed to give their explanation as to whether it will not affect the ecology and reduce the water storing capacity of the water body.
7. The Regional Office, MoEF, Chennai and State of Andhra Pradesh are directed to submit the respective report to this Tribunal on or before 30.06.2021 by e-filing in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per rules."
14. The matter has been adjourned from time to time either by notification or at the request of the parties.
15. The Irrigation Department has filed the report dated 23.06.2022, e- filed on 04.07.2022 which reads as follows:-
"REPORT FILED BY THE EXECUTIVE ENGINEER IRRIGATION DIVISION TIRUPATHI IN O.A No.156 of 2020
1. ... xxx ... xxx ... xxx ...
2. It is submitted that this Hon‟ble National Green Tribunal, South Zone, Chennai in its order dated. 12-01-2021 directed to produce the detailed project report for protection of the water body. Accordingly a Detailed project report for "Restoration of Avilala Cheruvu near Avilala Page 39 of 49 (V) in Tirupathi rural mandal of Chittoor District" was submitted to the Hon‟ble National Green Tribunal, South Zone, and Chennai
3. It is submitted that this Hon‟ble National Green Tribunal, South Zone, Chennai in its order Dt. 19-05-2021 has directed the state Govt. to submit the steps that the State Govt will take for implementation of detailed project report. The key components for Restoration of Avilala Tank are as follows.
1. Restoration and formation of earthen bunds to its original position.
2. Construction of surplus weir to discharge flood water.
3. Restoration of surplus course channels to drain the designed Discharge & Restoration of inflow channels
4. Raising of NH 205 to the TBL of Avilala tank.
4.It is submitted that the restoration and formation of earthen bunds to its original position: The cost of this component is works out to Rs. 1339.80 Lakhs as per SOR 2021-22 for a length of 2500 Mts. The soils required for formation of bund is works out to about 181000 cum which will be excavated in the foreshore area of tank and it will increase the water storage capacity of the tank. Considering the available foreshore area Avilala tank the capacity of the tank is worked out to be about 36 Mcft and the capacity will be increased by about 6 Mcft by usage of soil for formation of the bund from the foreshore area of the tank. Thus the total capacity of the tank will be about 42 Mcft as against 43.80 Mcft as per the memoirs of the tank. By restoration of the tank 96% of capacity of tank will be restored.
5. It is submitted that the Construction of surplus weir to discharge flood water: The cost of this component is works out to Rs. 31.00 Lakhs as per SOR 2021-22. The length of surplus weir as per memoirs is about 31.00 Mts and now the length of weir is proposed as 31.00 Mts.
6. It is submitted that the restoration of surplus course channels to drain the designed discharge & restoration of inlet channels: The cost of this component is works out to Rs. 2910.50 Lakhs as per SOR 2021-
22.The Surplus course was encroached and unauthorized constructions have taken place along the Surplus course. To discharge the Surplus water, it is proposed to excavate the Surplus channel with a width of 3 meters from Avilala tank to Oteru tank on the Southern edge of the right of way of NH- 205. From Oteru tank there is a Surplus channel which discharges the water into Swarnamukhi River. The bottom and sides of the channel from Avilala tank to Oteru tank is designed as a trough. As per the information of the officials of Revenue department, the total width acquired for NH-205 is 60 meters. Utilization of 3 meters for the channel from the land acquired for the NH- 205 duly taking the permission may not affect the purpose of NH- 205. If the land is acquired beyond the right of way, the extent of the land required for Surplus channel is 8600 Sq.yards. The cost of the land is taken as per the Registration value available in the website of Registration department. The cost of the land required is about Rs. 1892.00 Lakhs@ Rs. 22000/- per Sq.yard and the same was incorporated in the cost of detailed project report.
7. It is submitted that in let channels for the Avilala tank are by way of Kasam channels namely Cheruvu kasam, Gundlavani kasam and Kandevari kasam. Kandevari kasam was vacant to some extent in the head reach but houses were constructed in the tail reach. Gundlavani kasam was not encroached but it was flattened on the ground. Houses were constructed in the head reach along the Cheruvu kasam and the kasam is vacant and flattened in the tail reach. Further there is a possibility to bring water to the Avilala tank in the right of way of NH205.
7. It is submitted that the rising of NH 205 to the TBL of Avilala tank: The cost of this component is works out to Rs. 4309.20 Lakhs as per SOR 2021-22. The top of the Road level is 101.00 i.e., 1.0 meters above the FRL of the tank. But 1.1 meter below the TBL of the tank. Now it is proposed to raise the NH 205 road to TBL of the tank. The cost of rising is worked out by taking the cost from the concessioner who is dealing with road from Puthalapattu to Chandragiri. Further there is a proposal to convert the existing four lane to six lane. At the time of conversion, the existing road will be removed and fresh road will be formed. At the time of new formation, the road will be raised above the TBL.
Page 40 of 498. It is submitted that the Govt. of Andhra Pradesh has directed to address the TTD/TUDA for providing funds to take up restoration works and the NH authority to take up the work of construction of elevated bridge to cross the Avilala tank.
9. It is submitted that as per the instructions of the Government instructions the Superintending Engineer, Irrigation Circle, Chittoor has requested the Project director, NHAI, Project Implementation unit, Sri Tower, 3rd floor, DP 34(JP), Industrial Estate, Chennai to reform the NH 205 by constructing an elevated fly over by raising the road up to top of the tank bund level to cross Avilala tank."
16. Heard the learned counsel appearing for the applicant and the learned counsel appearing for the respondents.
17. The learned counsel appearing for the applicants argued that most of the constructions made by the Thirumula Tirupathi Devesthanam and Tirupati Urban Development Authority are against the directions of the Hon‟ble Apex Court and necessary directions will have to be issued to protect the water body against the further constructions and as far as possible, the constructions made will have to be removed and it must be restored to its original position.
18. On the other hand, the learned counsel appearing for the State Departments argued that no permanent constructions have been made after the order of the Hon‟ble Apex Court in respect of Avilala Cheruvu. Certain permissions have been granted to the Thirumula Tirupathi Devesthanam and Tirupati Urban Development Authority for beautification of the tank without affecting the morphology of the tank and without violating the directions issued by the Hon‟ble Apex Court in Intellectuals Forum, Tirupathi Vs. State of Andhra Pradesh & Ors. cited supra. Certain plan has been provided for restoring the water body, including even to elevate the National Highway [NH 205] already in existence and strengthening the water body etc. The learned counsel further submitted that they will abide by any directions issued by this Tribunal and they have no intention to reduce the extent of the water body.
19. We have considered the pleadings, reports submitted, submissions made by the learned counsel appearing for the parties and also perused the documents available on record.
Page 41 of 4920. The points that arose for consideration are:-
(i) Whether there was any encroachment made into the Avilala Cheruvu against the direction issued by the Hon‟ble Apex Court in Intellectuals Forum, Tirupathi Vs. State of Andhra Pradesh & Ors.2 ?
(ii) What is the nature of direction to be issued to restore the water body applying the principles of „Precautionary Principle‟ and „Doctrine of Public Trust‟?
(iii) Relief and costs.
POINTS:-
21. Grievance in this application was that respondents Nos.8 & 9 have made permanent structures in the guise of beautification of the tank as permitted by the Irrigation Department against the directions issued by the Hon‟ble Apex Court in Intellectuals Forum, Tirupathi Vs. State of Andhra Pradesh & Ors. cited supra. Further, when complaints were made, the Irrigation Department had issued direction to the Thirumula Tirupathi Devesthanam and Tirupati Urban Development Authority not to carry out any work in the water body. Despite constructions are being undertaken by them. These allegations were denied by the official respondents.
22. It is an admitted fact that when certain lands were transferred to the Tirupati Urban Development Authority and Andhra Pradesh Housing Board over the Avilala Cheruvu vide G.O. Ms.84 Revenue Department dated 28.01.1994, the same was challenged by the Intellectuals Forum before the Hon‟ble High Court of Andhra Pradesh by filing Writ Petition as W.P. No.8650 of 1994 and the same was dismissed by the Hon‟ble High Court of Andhra Pradesh. Aggrieved by the same, the writ petitioner therein filed a Special Leave Petition as SLP (Civil) Nos.7196 of 2001 and later, leave was granted and it was numbered as Civil Appeal No.1251 of 2006.
22006 (3) SCC 549 Page 42 of 49
23. The Hon‟ble Apex Court while dealing with the matter, considered the various decisions of the Apex Court regarding the responsibility of the State in protecting the water bodies against encroachment and pollution, relying on the decisions reported in M.C. Mehta Vs. Kamal Nath3, Essar Oil Vs. Halar Utkarsh Samithi4, Indian Council for Enviro Legal Action Vs. Union of India5, M.C. Mehta Vs. Union of India (Taj Trapezium Case)6, State of Himachal Pradesh Vs. Ganesh Wood Products7, Narmada Bachao Andolan Vs. Union of India8 and Andhra Pradesh Pollution Control Board Vs. Prof. M.V. Nayudu & Ors.9 and came to the conclusion that no one has got right to trespass into the water body and affect the water body and there is a responsibility cast on the State to protect the water body against encroachment and pollution as mandated under Article 48 A of the Constitution of India and also applying the principles of „Doctrine of Public Trust‟, „Intergenerational Equity‟ and „Sustainable Development‟, came to the conclusion that the officials in that case viz., Thirumula Tirupathi Devesthanam and Tirupati Urban Development Authority are not entitled to intermeddle with the Avilala Cheruvu and by Judgment dated 23.02.2006 reported in (2006) 3 SCC 549, disposed of the matter in respect of Avilala Cheruvu with the following directions:-
"76. The appeals are disposed of with the following directions:
xxx ... xxx ... xxx With Regard to Avilala Tank:
(i) No further construction to be allowed in the area.
(ii) Each house already constructed by the APHB/TUDA must provide structure for roof top rain water harvesting. All the storm water in the already built colonies to be recharged to ground water.
Structures for such purposes to be designated in consultation with the CGWB.
(iii) No bore well /tube well for any purpose to be allowed in the area.
(iv) An area of 40 acres presently reserved for the Government should not be developed in any way that may lead to concretization of the ground surface. Recharge structures to be constructed for rainwater harvesting.
(v) Piezometers to be setup at selected locations, in consultation with the CGWB to observe the impact of rain water harvesting in the area on ground water regime."
3(1997) 1 SCC 388 4 AIR 2004 SC 1834 5 (1996) 5 SCC 281 6 (1997) 2 SCC 653 7 AIR 1996 SC 149 8 AIR 2005 SC 2994 9 (1991) 1 SCR 235 Page 43 of 49
24. So, it is clear from this, that the authorities are not entitled to intermeddle with the Avilala Cheruvu and they will have to take steps to protect the same.
25. The case of the applicant was that they have made certain permanent constructions against the directions of the Hon‟ble Supreme Court in the decision cited supra. In order to ascertain the same, this Tribunal appointed a Joint Committee to go into the question and the Joint Committee filed the report which was extracted in the earlier paragraph which will go to show the present status of the Avilala Cheruvu and also the nature of encroachments / constructions made.
26. It is seen from the report that certain roads were made even without obtaining necessary permission from the concerned department and the same were also made after the order passed by the Hon‟ble Supreme Court in the case cited supra. It was noted in the report that an extent of 11.32 Acres of the land has been utilized for construction of National Highway [NH 205] and also certain permanent structures and those things were made prior to the orders passed by the Hon‟ble Apex Court. Whatever constructions made prior to the order passed by the Hon‟ble Apex Court, we feel that need not be disturbed, but at the same time, any construction made after the order of the Hon‟ble Apex Court, without obtaining necessary permission from the Government or from the Irrigation Department will have to be removed and that area has to be added to the tank so as to restore the water body to its original position.
27. It is also seen from the report that for the purpose of Garuda Vardhi Project, M/s. AFCON has made temporary construction for the purpose of storing the sand and other materials. But it is seen from the report that no permission has been granted by the Irrigation Department to the said company for such purpose. So, it is necessary to remove the encroachments made by M/s. AFCON and the same also to be added to the water storing area of Avilala Cheruvu. It is also seen from the Joint Committee report that certain DPR has been prepared for the purpose of protection of the water body and they were directed to produce the DPR ad the same was produced by the MoEF&CC, Regional Office, Chennai which was extracted in the earlier paragraph of this Judgment and as such, we are not repeating the same.
Page 44 of 4928. There was a proposal in the Detailed Project Report (DPR) for formation for internal pathways for movement of vehicles covering an area of 10.60 Acres, formation of walkway/carriageway, pathway, cycleway covering an area of 10.64 Acres and development of different types of theme gardens covering an area of 65 Acres which was intended for the development of the Cheruvu covering an extent of total area of 145.01 Acres.
29. The Joint Committee also observed that except the National Highway [NH 205] and substation constructed, other constructions have to be removed. This Tribunal is of the opinion that if internal area of the water spread area of the tank is utilized for development of theme park etc. as per the DPR, then it will against the direction of the Hon‟ble Apex Court.
30. So under such circumstances, we direct them not to carry out any activity within the water spread area and whatever work they want to do has to be done outside the water spread area viz., outside the entire extent of 201.62 Acres and no water spread area should be utilized for any purpose. But they can utilize the area for the purpose of strengthening the bund after removing the compound wall which is a permanent structure which will affect the inflow and outflow of the water from the water spread area of the tank. They must also take into account while strengthening the bund that they should not reduce the water spread area, unless they were able to enhance the water storing capacity by deepening the same more than the area likely to be affected on account of such intrusion into the water spread area for providing a wider bund.
31. They must also consider the question of providing more box-type vents in the existing National Highway [NH 205] so as to connect the water body that has been divided on account of establishment of the National Highway, in consultation with the NHAI and if they want to elevate the same, they are at liberty to do the same so as to improve the water body in consultation with the National Highway Authority of India.
Page 45 of 4932. So under such circumstances, we feel that the application can be disposed of with the following directions:-
a. The official respondents including respondents Nos.7 to 9 are directed not to trespass into the Avilala Cheruvu and reduce its water spread area by making constructions either temporary or permanent in the guise of beautification of the tank. b. Except the National Highway 205 and substation, the other constructions which were established without obtaining permission from the Irrigation Department or the Government and after the directions issued by the Hon‟ble Apex Court in Intellectuals Forum, Tirupathi Vs. State of Andhra Pradesh & Ors.10 are directed to be removed and the District Collector - Tirupathi District under whose jurisdiction this area falls now in coordination with the Irrigation Department is directed to take steps to remove such encroachments and restore the water body to the extent possible and take steps to protect the same by strengthening the bund, desilting the water body periodically and enhance the water storing capacity by deepening, the inlet and outlets should also be restored for collection of surplus rainwater during rainy season.
c. The Irrigation Department in coordination with the Thirumula Tirupathi Devesthanam and Tirupati Urban Development Authority is directed to take steps to protect the water body by strengthening the bunds without affecting the water spread area and if they want to make any development of theme park etc. that can be done only outside the tank area and not within the Full Tank Level or buffer zone of the tank and it must be in tune with the directions issued by the Hon‟ble Apex Court in Intellectuals Forum, Tirupathi Vs. State of Andhra Pradesh & Ors. cited supra. However, green cover can be considered in the buffer zone.
d. While implementing the DPR, they are directed not to undertake construction of buildings, road or any infrastructure inside the water spread area as envisaged by them in the DPR which is likely to affect the water storage capacity within the water spread area of the tank or if at all they want do it, it must be outside the water spread area including the FTL and outside the 10 2006 (3) SCC 549 Page 46 of 49 buffer zone to be provided as directed by this Tribunal and also by the Hon‟ble Apex Court in several cases of this nature. e. The Irrigation Department in coordination with the District Collector - Tirupathi District is directed to take steps to remove the constructions made in the water spread area of the tank through the Tirupati Urban Development Authority/ M/s. AFCON and if they are not doing the same, then they are directed to remove the same and recover the expenses incurred from the above said institution in accordance with law. f. They must also provide more box-type of vents in the existing National Highway [NH 205] so as to connect the water body that has been divided on account of establishment of the National Highway and in case, in consultation with the NHAI, if NHAI wants to change the road to elevated bridge over the tank area, they are at liberty to do the same so as to improve the water body, after obtaining necessary clearances (if any) required under law.
33. The points are answered accordingly.
34. In the result, this Original Application is allowed in part and disposed of with the following directions:-
(i) The official respondents including respondents Nos.7 to 9 are directed not to trespass into the Avilala Cheruvu and reduce its water spread area by making constructions either temporary or permanent in the guise of beautification of the tank.
(ii) Except the National Highway 205 and substation, the other constructions which were established without obtaining permission from the Irrigation Department or the Government and after the directions issued by the Hon‟ble Apex Court in Intellectuals Forum, Tirupathi Vs. State of Andhra Pradesh & Ors.11 are directed to be removed and the District Collector - Tirupathi District under whose jurisdiction this area falls now in coordination with the Irrigation Department is directed 11 2006 (3) SCC 549 Page 47 of 49 to take steps to remove such encroachments and restore the water body to the extent possible and take steps to protect the same by strengthening the bund, desilting the water body periodically and enhance the water storing capacity by deepening, the inlet and outlets should also be restored for collection of surplus rainwater during rainy season.
(iii) The Irrigation Department in coordination with the Thirumula Tirupathi Devesthanam and Tirupati Urban Development Authority is directed to take steps to protect the water body by strengthening the bunds without affecting the water spread area and if they want to make any development of theme park etc. that can be done only outside the tank area and not within the Full Tank Level or buffer zone of the tank and it must be in tune with the directions issued by the Hon‟ble Apex Court in Intellectuals Forum, Tirupathi Vs. State of Andhra Pradesh & Ors. cited supra.
However, green cover can be considered in the buffer zone.
(iv) While implementing the DPR, they are directed not to undertake construction of buildings, road or any infrastructure inside the water spread area as envisaged by them in the DPR which is likely to affect the water storage capacity within the water spread area of the tank or if at all they want do it, it must be outside the water spread area including the FTL and outside the buffer zone to be provided as directed by this Tribunal and also by the Hon‟ble Apex Court in several cases of this nature.
(v) The Irrigation Department in coordination with the District Collector - Tirupathi District is directed to take steps to remove the constructions made in the water spread area of the tank through the Tirupati Urban Development Authority/ M/s. AFCON and if they are not doing the same, then they are directed to remove the Page 48 of 49 same and recover the expenses incurred from the above said institution in accordance with law.
(vi) They must also provide more box-type of vents in the existing National Highway [NH 205] so as to connect the water body that has been divided on account of establishment of the National Highway and in case, in consultation with the NHAI, if NHAI wants to change the road to elevated bridge over the tank area, they are at liberty to do the same so as to improve the water body, after obtaining necessary clearances (if any) required under law.
(vii) Considering the circumstances, parties are directed to bear their respective cost in the application.
(viii) The Registry is directed to communicate this order to the Additional Chief Secretary to Government for Environment and Forest, Chief Secretary to Government, State of Andhra Pradesh, District Collector
- Thirupathi, Chief Engineer - Irrigation Department, Thirumula Tirupathi Devesthanam and Tirupati Urban Development Authority for their information and compliance of directions.
35. With the above observations and directions, this Original Application is disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.156/2020 (SZ), 29th August 2022. Mn.
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