Andhra Pradesh High Court - Amravati
Annapanthula Rama Gopala Sarma A.R.G. ... vs The State Of Andhra Pradesh, on 14 December, 2020
Author: C. Praveen Kumar
Bench: C.Praveen Kumar
1
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE D. RAMESH
Writ Petition No. 12418 OF 2020
ORDER:(per the Hon'ble Justice Sri. C. Praveen Kumar)
1) The present Writ Petition came to be filed seeking issuance of Mandamus to declare the action of the Respondents in converting the pump house together with tree plantation, in an extent of Ac.7.06 cents, situated in Survey No. 147, Chodavram Village and Mandalam, for distribution of house-sites under the guise of 'Navaratnalu-Pedalandriki Illu', as illegal, improper and incorrect.
2) The facts in issue, in brief, as under:
i. The Deponent and other Petitioners are residents of Chodavaram Village and claim to be persons, holding responsible positions in Chodavaram Village. ii. It is stated that the land admeasuring Ac.7.06 cents in Survey No. 147 is a Zeroyithi land and a pump-house was constructed to cater the drinking water needs of the villagers since eight decades.
iii. It is stated that the land originally belongs to private persons, who donated the same for catering to the drinking water need of the villagers, by construction of a pump-house. It is said that, in order to increase the 2 ground water level and to protect the said land, trees were planted in the entire extent of land, due to which, there were substantial increase in ground water level. The averment in the affidavit further show that, about 4 or 5 overhead water tanks were constructed in the village and the water from the subject pump house is being pumped into the overhead tanks to cater the drinking water needs of the residents of Chodavaram villagers.
iv. While things stood thus, under the programme 'Navaratnalu-Pedalandriki Illu', the Government proposed to distribute the land surrounding the subject pump-house to landless poor persons. It is said that, pursuant thereto, the Respondents Officials have cut- down the trees without the permission of the Authority, thereby violating the provisions of the WALTA Act. It is further stated that, no notification is issued under Section 80 (3) of A.P. Panchayat Act, for taking over of the administration and control of the pump-house property, which is vested in Chodavaram Gram Panchayat. The action of the authorities in trying to take over the property by cutting trees is not only violative of the law laid down by the Apex Court in various judicial pronouncements, but, also in violation 3 of the provisions of the WALTA and A.P. Panchayat Act. Hence, the present Writ Petition came to be filed.
3) A counter came to be filed by the 4th Respondent, denying the averments made in the affidavit, except to the extent admitted by them. According to them, out of total extent of Ac.7.06 cents in Survey No. 147, an extent of Ac.1.56 Cents has been left to Chodavaram Gram Panchayat, for utilization of pump-house purpose. It is said that, the balance vacant land of Ac.5.50 Cents is now sought to be used for implementation of the house programme. It is also averred that the layout has been prepared for allotment of 220 plots to the eligible beneficiaries under the said programme. For the said purpose, the work relating to clearance of trees / bushes has been taken up through Housing Department and internal roads were also laid. The Counsel took us through the Settlement Fair Adangal of Chodavaram Village and Mandal to show that the land is classified as 'Poramboke' i.e., Government land and, as such, has every right to take over the land. It is stated that, the trees have been removed with a view to develop greenery through plantation of road side avenues and common vacant lands under MGNREGS vide proceedings, dated 20.07.2020.
In other words, the main argument of the learned Government Pleader is to the effect that, due procedure has been followed while removing the trees and this being a 4 Government land, they have every right to take over the same without disturbing the water tanks and water source, which is to an extent of Ac.1.56 Cents. He placed on record a copy of the Settlement Fair Adangal in support of his plea.
4) The 6th Respondent, namely, the Panchayat Secretary of Chodavaram Gram Panchayat, filed its counter stating that the Settlement Fair Adangal shows description of land as 'water works'. As per the counter, there is a big Well to which a pump-house has been attached for supply of drinking water to the villagers of the Gram Panchayat having population of about 40,000. The Gram Panchayat is said to have developed the entire area by growing coconut and neem trees. These trees were said to be around the drinking water Well. It is further stated that the Gram Panchayat is earning a sum of Rs.30,000/- a year from the coconut trees, on auction. The averments in the affidavit further show that, no auction could be conducted this year as the Thasildar has removed all the trees from the land, with a view to provide house-sites under the Government scheme, without the permission of the Gram Panchayat, on the ground that the land was classified as Poramboke in the revenue records. It is emphatically stated in the counter that, the land belongs to Gram Panchayat and, as such, the same is necessary for safeguarding the ground water level for supply of drinking water to the villagers without any contamination.
5
5) The Environmental Board represented by 2nd Respondent also filed counter stating that the Board has not received any representation from the Government regarding cutting of trees in the subject area. However, under WALTA Act, the Environmental Board is not the implementing agency for granting permission of tree felling. It is also stated that the Board is no way concerned with the conversion of land and the same does not fall under the purview of the Board. The Counter appears to be a formal one.
6) A Reply came to be filed by the Writ Petitioners stating that, as per the counter filed by 6th Respondent, the land vest with Gram Panchayat and in view of Section 2(43) of A.P. Panchayat Raj Act 'Water-course' includes, any river, stream or channel, whether natural or artificial. Having regard to the fact that, there is a big Well, to which pump-sets have been attached for pumping drinking water to the overhead tanks in village, it would be unfair, on the part of the Government authorities to forcibly cut trees and then distribute the said land for house-site purpose.
7) From the above, it is clear that, the averments in the counter filed by the Thasildar are totally contrary to the averments in the counter filed by the Gram Panchayat. While, on one hand, the Thasildar states that the said land is classified as Poramboke land and as such, vests with the 6 government, while, the counter of the Panchayat Secretary is to the effect that this is a 'Water Works' around which, coconut and neem trees are planted and the same is catering to the needs of about 40,000 people of Chodavaram Mandal. In-fact, it has been stated that, pump-houses have been erected in the said premises and that the Government highhandedly took over the said land.
8) The Government Pleader as well as the Standing Counsel for the Panchayat, relied upon a copy of the Settlement Fair Adangal, wherein, in the remarks column, land was classified as 'Water Works'; but, however, in 5th column of the Adangal, it has been stated as 'Poramboke'. Therefore, even assuming for the sake of argument that, this is a poramboke land, but, still it appears to be a place, where water is being stored and pump houses have been erected for supply of drinking water to the villagers. Such being the position, any action taken by any of the authorities for converting the said land into plots, cannot be accepted. Though the 4th Respondent states that entire area of Ac.7.06 cents does not vest with the Panchayat, but the Gram Panchayat is claiming right over the entire property, which is evident from the counter filed by them. As this being an area which is source of water to the residents of the village, the 4th Respondent ought to have been more careful or got then land converted as pleaded.
7
9) In Municipal Corporation of Greater Mumbai and Others v Kohinoor Ctnl Infrastructure Company Private Limited and Another1, the Hon'ble Supreme Court, held as under:
"It must be noted that the right to a clean and healthy environment is within the ambit of Article 21, as has been noted in Amarnath Shrine, In re2 in the following words:
"12. The scheme under the Indian Constitution unambiguously enshrines in itself the right of a citizen to life under Article 21 of the Constitution. The right to life is a right to live with dignity, safety and in a clean environment."
The right to a clean and pollution free environment, is also a right under our common-law jurisprudence, as has been held by this Court in Vellore Citizen's Welfare Forum v. Union of India and Ors3, where this Court held:
"The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of a clean environment."
"In the same judgment the Court emphasized the importance of Sustainable Development, and the need for a balance between development and ecological considerations, in the following words:
"10. The traditional concept that development and ecology are opposed to each other, is no longer acceptable. 'Sustainable Development' is the answer.... "Sustainable Development as defined by the Brundtland Report means "development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". We have no 1 (2014)4SCC538 2 (2013)3SCC : (2012)12Scale307 3 (1996)5SCC647 8 hesitation in holding that "Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the Customary International Law though its salient features have yet to be finalised by the International Law jurists."
10) In Buja Buja Nellore Gram Panchayat and Ors. v. The Special Collector, Telugu Ganga Project, Nellore and Ors4., the combined High Court of Andhra Pradesh, held as under:-
"As I have already held that the Uramgunta tank vests in the Gram panchayat and it can not be dealt-with in any other manner except in accordance with the said provisions, unless the land control of the tank is taken away from the jurisdiction of the Gram Panchayat by the government, the Government, would not have any power to deal with the said land. In as much as, no notification admittedly has been issued by the Government, it is not open for the authorities to interfere with the tank area. In view of the fact that the tank vests in the Gram Panchayat by virtue of section 80 of the Act, it would not be open for the authorities to convert the same into house site pattas and allot them to the displaced persons or any other persons. It is only when notification was issued under sub-section 3 of Section 80, it may be open for the Government to take further action."
11) In view of the judgments referred to above and having regard to the claim and counter claim made by Revenue Department as well as by Gram Panchayat, we feel that alienation of the property by way of distributing house sites 4 1995SCC Online AP581 : (1996)1ALD134 : 1996AIHC1427 9 under a scheme may not be proper, more so, when there is a dispute with regard to the extent of land, which is being used a water source for the village, having regard to the counter- claim made, we direct the Respondents to desist from converting the said land into housing plots and distribute for the present, leaving it is open to the Governmental Authorities to examine the issue afresh taking into consideration the stand of the Gram Panchayat and then proceed in accordance with law.
12) With the above direction, this Writ Petition is disposed off. No order as to costs.
13) Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR ______________________ JUSTICE D. RAMESH Date: 14.12.2020 SM...
10
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE D. RAMESH
Writ Petition No. 12418 of 2020
Date: .12.2020
SM.