Andhra Pradesh High Court - Amravati
Meesala Gana Prasad, vs The District Collector, on 26 April, 2023
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH
***
W.P.Nos.11983, 12332, 13806, 18759 of 2013
And
W.P.No.1616 of 2015
W.P.No.11983/2013
BETWEEN:
# Meesala Gana Prasad, S/o. Venkateswarlu,
R/o. D.No.26-17-10, Ankamma Nagar,
Guntur, Guntur District.
.... Petitioner
AND
$ 1. The District Collector, Guntur, Guntur District.
2. The Tahsildar, Guntur Mandal, Guntur District.
3. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
... Respondents
W.P.No.12332/2013
BETWEEN:
# 1. Chukka Philip (died) per Lrs.
2. Chukka Lurdumma, W/o. Chukka Philip, R/o. D.Nol128-4-305,
Gorantla, Guntur District.
3. Chukka Raviteja, S/o. Chukka Philip, R/o. D.Nol128-4-305,
Gorantla, Guntur District.
.... Petitioners
AND
$ 1. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
2. The Government of Andhra Pradesh, rep. by the District
Collector, Guntur District.
3. The Revenue Divisional Officer, Guntur Division, Collectorate
Compound, Guntur.
4. The Tahsildar, Guntur Rural Mandal, Guntur District.
... Respondents
2
RRR,J
W.P.No.11983 of 2013 & batch
W.P.No.13806/2013
BETWEEN:
# Gera Yesuratnam S/o. Lazarus,
R/o. D.No.6-137, Guntur Rural Mandal,
Guntur District.
.... Petitioner
AND
$ 1. The District Collector, Guntur, Guntur District.
2. The Tahsildar, Guntur Mandal, Guntur District.
3. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
... Respondents
W.P.No.18759/2013
BETWEEN:
# 1. Sesham Srinu, S/o. Peda Kotaiah, R/o. East Bazar, Gorantal
Village, Guntur Rural Mandal, Guntur District.
2. Chalavadi Rambabu, S/o. Ramulu, R/o. East Bazar, Gorantal
Village, Gutur Rural Mandal, Guntur.
.... Petitioners
AND
$ 1. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
2. The District Collector, Guntur District.
3. The Government of Andhra Pradesh, rep. by the Principal
Secretary to Municipal Administration, Secretariat, Hyderabad.
4. Sri Kolli Sivarami Reddy, S/o. Subba Reddy, R/o. Golrantla
Village, Guntur Rural Mandal, Guntur District.
... Respondents
3
RRR,J
W.P.No.11983 of 2013 & batch
W.P.No.1616/2015
BETWEEN:
# Manchala Srinivasa Rao, S/o. Subba Rao,
R/o. H.No.6-130, Gorantla Village, and Mandal,
Guntur District.
.... Petitioners
AND
$ 1. The Government of Andhra Pradesh, rep. by the Principal
Secretary to Revenue Department, Secretariat Buildings,
Hyderabad.
2. The District Collector, Guntur District.
3. The Tahsildar, Guntur Rural Mandal, Guntur District.
4. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
... Respondents
Date of Judgment pronounced on : 26.04.2023
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
4
RRR,J
W.P.No.11983 of 2013 & batch
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
+ W.P.Nos.11983, 12332, 13806, 18759 of 2013
And
W.P.No.1616 of 2015
% Dated:26.04.2023
W.P.No.11983/2013
BETWEEN:
# Meesala Gana Prasad, S/o. Venkateswarlu,
R/o. D.No.26-17-10, Ankamma Nagar,
Guntur, Guntur District.
.... Petitioner
AND
$ 1. The District Collector, Guntur, Guntur District.
2. The Tahsildar, Guntur Mandal, Guntur District.
3. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
... Respondents
W.P.No.12332/2013
BETWEEN:
# 1. Chukka Philip (died) per Lrs.
2. Chukka Lurdumma, W/o. Chukka Philip, R/o. D.Nol128-4-305,
Gorantla, Guntur District.
3. Chukka Raviteja, S/o. Chukka Philip, R/o. D.Nol128-4-305,
Gorantla, Guntur District.
.... Petitioners
AND
$ 1. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
2. The Government of Andhra Pradesh, rep. by the District
Collector, Guntur District.
3. The Revenue Divisional Officer, Guntur Division, Collectorate
Compound, Guntur.
4. The Tahsildar, Guntur Rural Mandal, Guntur District.
... Respondents
5
RRR,J
W.P.No.11983 of 2013 & batch
W.P.No.13806/2013
BETWEEN:
# Gera Yesuratnam S/o. Lazarus,
R/o. D.No.6-137, Guntur Rural Mandal,
Guntur District.
.... Petitioner
AND
$ 1. The District Collector, Guntur, Guntur District.
2. The Tahsildar, Guntur Mandal, Guntur District.
3. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
... Respondents
W.P.No.18759/2013
BETWEEN:
# 1. Sesham Srinu, S/o. Peda Kotaiah, R/o. East Bazar, Gorantal
Village, Guntur Rural Mandal, Guntur District.
2. Chalavadi Rambabu, S/o. Ramulu, R/o. East Bazar, Gorantal
Village, Gutur Rural Mandal, Guntur.
.... Petitioners
AND
$ 1. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
2. The District Collector, Guntur District.
3. The Government of Andhra Pradesh, rep. by the Principal
Secretary to Municipal Administration, Secretariat, Hyderabad.
4. Sri Kolli Sivarami Reddy, S/o. Subba Reddy, R/o. Golrantla
Village, Guntur Rural Mandal, Guntur District.
... Respondents
6
RRR,J
W.P.No.11983 of 2013 & batch
W.P.No.1616/2015
BETWEEN:
# Manchala Srinivasa Rao, S/o. Subba Rao,
R/o. H.No.6-130, Gorantla Village, and Mandal,
Guntur District.
.... Petitioners
AND
$ 1. The Government of Andhra Pradesh, rep. by the Principal
Secretary to Revenue Department, Secretariat Buildings,
Hyderabad.
2. The District Collector, Guntur District.
3. The Tahsildar, Guntur Rural Mandal, Guntur District.
4. The Guntur Municipal Corporation, rep. by its Commissioner,
Guntur District.
... Respondents
! Counsel for Petitioners : Sri Venkateswar Varanasi
Sri Venkateswarlu Posani (Sr.Counsel)
Sri B. Muralidhar
Sri Raja Reddy Koneti
Sri C.B. Adarsh Kumar
^Counsel for Respondent : G.P. for Revenue
Sri M. Manohar Reddy
SC for Munc., Corp.,
<GIST :
>HEAD NOTE:
? Cases referred:
1. (2001) 6 SCC 496 : 2001 SCC OnLine SC 862 at page 500
2. (2006) 3 SCC 549 : 2006 SCC OnLine SC 210 at page 574
3. (2020) 20 SCC 581 : 2019 SCC OnLine SC 1510 at page 589
7
RRR,J
W.P.No.11983 of 2013 & batch
HON'BLE MR. JUSTICE R. RAGHUNANDAN RAO
W.P.Nos.11983, 12332, 13806, 18759 of 2013
And
W.P.No.1616 of 2015
COMMON ORDER:
As all these writ petitions arise out of the action of the authorities in seeking to establish a cemetery in Sy.No.492/1 of Gorantla Village, Guntur Mandal and District and the prayer of the petitioners in W.P.No.18759 of 2013 to revive the water tank that is said to have existed in the said land, they are being disposed of together by this common order.
2. Though the writ petitions are arising out of the establishment of a cemetery, the facts in each of the case differ slightly, due to which the pleadings in each of these cases would have to be recorded.
W.P.No.11983 of 2013
3. Ac.1.50 cents of land is said to have been assigned to one late Gera Lazaraus by way of a D.K.T. Patta bearing No.87 of 1383 Fasli in Sy.No.492/1 of Gorantla Village, under ex-servicemen quota, in Rc.No.5694 dated 09.04.1974. The said late Gera Lazaraus is said to have passed away on 05.07.1998 leaving behind his wife, four sons and four daughters, as his legal heirs. All the legal heirs are said to have relinquished their right in favour of Sri Gera Yesuratnam, who is one of 8 RRR,J W.P.No.11983 of 2013 & batch the sons of late Gera Lazaraus by way of a document, which was presented before the Sub-Registrar, Koritepadu, Guntur District and which was kept pending with Pending document No.134/2010.
4. Sri Gera Yesuratnam is said to have sold away Ac.1.30 cents of this land to the writ petitioner in this writ petition by way of a written document which was presented for registration before the Sub-Registrar, Koritepadu on 09.07.2010. Initially, the document was kept pending as Document No.134/2010 and subsequently, registration of the document was refused by way of an order dated 16.07.2011. The District Registrar, upon an appeal filed by the petitioner in Appeal No.9 of 2012, had set aside the order of refusal with a direction to the said Registrar to register the document duly following the provisions of the Registration Act.
5. Apart from this documentation, the petitioner also relies upon a certificate, bearing Spl.Reg.No.440/07-D dated 31.12.2008, and a certificate, bearing Rc.No.118/2012-D dated 05.05.2012, issued by the Tahsildar, Guntur Mandal, who is arrayed as the 2nd respondent. These certificates state that Ac.1.50 cents of land had been assigned to late Gera Lazaraus under the ex-servicemen quota and the said land was in his possession.
6. The petitioner is said to have approached this Court by way of W.P.No.11983 of 2013 on the ground that the respondents were forcibly taking over the land of the petitioner on 08.04.2013, despite the 9 RRR,J W.P.No.11983 of 2013 & batch fact that the petitioner had legally purchased the land from the legal heir of the original assignee. The petitioner contends that the land was allotted to Sri Gera Lazaraus under the ex-servicemen quota and the same is alienable and transferable as per G.O.Ms.No.117 dated 11.11.1993.
7. A counter affidavit was filed by the District Collector and Tahsildar, as respondents 1 and 2. The grant for assignment under D.K.T. Patta to late Sri Gera Lazaraus is not disputed. However, it is stated that the patta was given as a landless poor person and not under ex- servicemen quota. It is also pointed out that the terms of the D.K.T. Patta itself show that there is a condition of non-alienability and in such circumstances, the petitioner would not have any right over the said land. W.P.No.13806 of 2013
8. This writ petition has been filed by Sri Gera Yesuratnam essentially raising the same grounds raised in W.P.No.11983 of 2013. It appears that this writ petition has been filed to counter the contentions raised by the respondents in W.P.No.11983 of 2013.
9. A counter affidavit has been filed by the 3rd respondent- Municipal Commissioner. However, the facts in the said counter relate to W.P.No.12332 of 2013.
W.P.No.12332 of 2013
10. The deceased petitioner claimed right and title over Ac.2.00 of land in Sy.No.492 of Gorantla Village on the ground that the said 10 RRR,J W.P.No.11983 of 2013 & batch Ac.2.00 of land was assigned to the deceased petitioner through a D.K.T. Patta bearing No.85/83 dated 14.05.1974 under the ex-servicemen quota and that he was dispossessed in April, 2013, for the purpose of establishing a cemetery for Christian Organizations, and the same is not lawful and requires to be reversed. As the deceased petitioner passed away during the pendency of the writ petition, his widow was impleaded, as petitioner No.2, as his legal representative.
11. Respondents 2 to 4, who are the revenue authorities have filed a counter. In this counter affidavit, the D form patta claimed by the petitioner is not disputed. However, it is contended that the said assignment was done treating the petitioner as a landless poor person and not as an ex-servicemen. It is stated that Sy.No.492 consisting of Ac.16.93 cents was never sub-divided and the petitioner had not paid cist at any time. It was further contended that the Adangals do not show the name of the deceased petitioner as a possessor or enjoyer of the said land. Further physical inspection of the land shows that the deceased petitioner was not in possession and enjoyment of the property and the revenue records classified the land as "Tank". It is contended that assignment of tank land can never be done as it is prohibited on account of the directions of the Hon'ble Supreme Court, this Court and the Government of Andhra Pradesh. The counter affidavit further states that an extent of Ac.11.00 11 RRR,J W.P.No.11983 of 2013 & batch only was allotted for the Christian burial ground out of Ac.16.93 cents available in Sy.No.492/1.
12. The Municipal Commissioner, who is respondent No.1 filed a counter affidavit stating that the land was handed over to the Municipal Corporation by the Tahsildar and a compound wall has been built all around Ac.11.00 of land which has been set aside for the development of burial ground for the Christian community.
W.P.No.1616 of 2015
13. The petitioner claims ownership and possession of Ac.1.93 cents of land in Sy.No.492/9 of Gorantal village on the ground that his ancestor, viz., Sri G. Balaiah was assigned the land by way of D.K.T. Patta No.83/83 dated 14.05.1974 and the said land was handed over to the father of the petitioner through a document dated 15.03.1980. Thereafter, the father of the petitioner is said to have paid cist regularly to the Government till he passed away in 2002 and thereafter the petitioner had been in possession and enjoyment of the said property. As the subordinates of respondents 3 and 4 sought to take over the land on 19.01.2015, the petitioner is said to have approached this Court. A mention is also made of the proceedings initiated by his neighbours, in W.P.No.13724 of 2013 and W.A.No.215 of 2014, before this Court in relation to the actions taken by the respondent authorities to evict his neighbours from their land. The petitioner has not produced the document 12 RRR,J W.P.No.11983 of 2013 & batch bearing D.K.No.83/83 dated 14.05.1974. However, he has produced two receipts dated 07.03.1982 and 05.08.1987 to show that his father had been paying land cist to the revenue authorities. The petitioner has also produced an unregistered document dated 15.03.1980 under which G. China Narasaiah said to be the son of G. Balaiah had handed over the land to the father of the petitioner.
14. The 3rd respondent-Tahsildar filed a counter stating that the land is classified as a tank and the question of assignment of such land would not arise and that the construction of a wall around Ac.11.00 of land had commenced by the time the petitioner had approached this Court. The counter affidavit does not state as to whether the land had been assigned to late Sri G. Balaiah or not.
W.P.No.18759 of 2013
15. The petitioners, who are said to be the residents of Gorantla Village, have approached this Court being aggrieved by the allotment of Ac.11.00 of land for establishing a burial ground in Sy.No.492. It is the complaint of the petitioners that the said land was originally a tank known as Polisetty Kunta and the official respondents, instead of reviving the said tank, are seeking to convert it into a burial ground and it is not permissible in view of the various judgments of the Hon'ble Supreme Court. The petitioners would also rely upon G.O.Ms.No.188 Panchayat Raj and Rural Development Department dated 21.07.2011 directing the 13 RRR,J W.P.No.11983 of 2013 & batch Executive Officer of the Gram Panchayat to protect the tank and tank bed. It is their contention that Gorantla Village is a Gram Panchayat when this G.O. was issued and the subsequent merger of the Gram Panchayat into a municipal corporation would not relieve the authorities from implementation of the said G.O. The Guntur Municipal Corporation as well as the revenue authorities have filed their counter affidavits. In these counter affidavits, it is stated that though the land has been recorded as tank, there is no tank in the said land and there is pressing need for grant of land for creating a burial ground for the members of the Christian community. It is stated that there is no trace of tank and there is no cultivation under the tank due to which the said land can be used for establishment of burial ground. The counter affidavit relies heavily upon certain interlocutory orders passed by this Court in W.P.Nos.18759, 12332 and 13724 of 2013 permitting construction of a compound wall around Ac.11.00 of land which is sought to be used for establishing burial ground.
16. Heard Sri Venkateswar Varanasi, Sri Posani Venkateswarlu, Sri B. Muralidhar, Sri Rajareddy Koneti, Sri C.B. Adarsh Kumar learned counsel appearing for the petitioners in all these writ petitions, Sri M. Manohar Reddy, learned Sanding Counsel appearing for the Municipal Corporation, and the learned Assistant Government Pleader for Revenue.
17. The undisputed facts in the present cases are that Sri Gera Lazaraus and Sri C. Philip, had been assigned Ac.1.50 cents of land and 14 RRR,J W.P.No.11983 of 2013 & batch Ac.2.00 of land, respectively, in Sy.No.492 by the Government. The revenue authorities only contend that the said land had been assigned to these two persons on the footing that they were landless poor persons and not on the basis of the said persons being ex-servicemen. W.P. No.11983 of 2013
18. A perusal of the D.K.T. Patta produced by the petitioner in W.P.No.11983 of 2013 shows that the patta has a specific condition of non alienation. The A.P. Assigned Lands (Prohibition of Transfer) Act, 1977 (for short 'the Act') defines "assigned land" as a land which is assigned with a stipulation of non-alienation. In such circumstances, the provisions of the Act would squarely apply to the present case as there is a specific stipulation in the patta, prohibiting alienation. However, the certificates issued by the Tahsildar on 31.08.2008 and 05.05.2012 show that the land had been assigned to Sri Gera Lazaraus on the basis of his being an ex-serviceman. These certificates have not been disputed by the respondents. The said non denial, raises the question as to whether the assignment was done on the basis of the original allottee being a landless poor person or an ex service man.
19. W.P.No.13806 of 2013 is filed by Sri Gera Yesuratnam, the vendor of the petitioner in W.P.No.11983 of 2013 claiming right and title over the land. Section 4 of the Act stipulates that any transfer of the land by an assignee, allotted under a DKT patta, stipulating non alienation, 15 RRR,J W.P.No.11983 of 2013 & batch would have to be set aside and the land would have to be restored to the possession of the assignee, subject to further verification as to the status of the purchaser as a landless poor person. In such a case the purchaser would also have certain rights and claims set out in Section 4 (1) (a) of the Act. It would be necessary for the Tahsildar, who is arrayed as a respondent to conduct a fresh enquiry, after due notice to the petitioners in both cases, to determine whether the assignment is to a landless poor person or whether the assignment is to an ex service man and also whether the purchaser would fall within the ambit of Section 4 (1) (a) of the Act. If the enquiry reveals that the land was assigned to late Sri Gera Lazarus as an ex service man, the petitioner in W.P. No. 11983 of 2013 would have ownership of the land and would be entitled to the benefits of this order, set out in the subsequent passages of this order. If the finding is otherwise, the petitioner in W.P. No. 13806 of 2013 would be entitled to the benefits of this order.
20. The grant of D.K.T. Patta in favour of the deceased petitioner in W.P.No.12332 of 2013 is admitted by the revenue authorities. However, the stand taken by the revenue authorities is that the deceased petitioner had never paid cist to the revenue authorities. Non-payment of cist would not, in any manner, affect the right and title of the assignee over the land which had been assigned to a landless poor person by way of a D.K.T. Patta. In the circumstances, the contention of the respondent 16 RRR,J W.P.No.11983 of 2013 & batch authorities, that non-payment of cist would take away the right and title of the petitioner over the land cannot be accepted.
21. W.P.No.1616 of 2015 - The petitioner herein claims that Ac.1.93 cents of land in Sy.No.492/9 had been assigned to one G. Balaiah and the said land had been transferred to his father by way of a document dated 15.03.1980. The petitioner has not produced any D.K.T. Patta showing grant of assignment to Sri G. Balaiah. Further, the assigned land is said to have been given to the father of the petitioner by the son of Sri G. Balaiah on the ground that they were relatives. The said transfer of title is said to have been done under a document dated 15.03.1980. The claim of the petitioner would have to be rejected for the following reasons. Firstly, non production of the DKT patta raises any amount of doubt about the claim of the petitioner in this regard. Secondly, any D.K.T. Patta, assigning land in favour of a landless poor person, will contain a stipulation of non-alienation. In the face of such a stipulation, transfer of the land, by the assignee or his legal heirs, to a relative, is clearly prohibited by the Act. Thirdly, the alleged transfer is said to have been recorded in a document dated 15.03.1980 which is unregistered. In such circumstances, this Court cannot look into such a document and the petitioner has not demonstrated title or possession over the land.
22. The petitioner has produced two cist receipts showing that his father had paid land revenue on the land, about 20 years back. 17
RRR,J W.P.No.11983 of 2013 & batch However, the petitioner has not produced any other document, including the revenue record, to demonstrate possession over the land. For all the aforesaid reasons, the claim of the petitioner over right, title and possession to the land in Sy.No.492/9 would have to be rejected.
23. In view of the above, W.P.No.1616 of 2015 has to be dismissed. W.P.No.12332 of 2013 would have to be allowed by upholding the right and title of the petitioners in relation to Ac.2.00 of land. Similarly, either the petitioner in W.P. No. 11983 of 2013 and W.P. No. 13806 of 2013, depending upon the nature of the patta, will be entitled to ownership of 1.50 Acres of land. However, the rights of the petitioners in relation to these lands would have to be considered in the light of W.P.No.18759 of 2013.
24. It is an admitted fact that the land in question has been categorized as a water body and a water body spread over an area of 11 acres had existed earlier. It is the contention of the revenue authorities that there is no trace of the tank now and there is no land which is irrigated on the basis of the said tank as a water source. On that basis, the respondent authorities have sought to allot the said land for being used as a burial ground.
25. The Hon'ble Supreme Court, while dealing with similar issues had categorically held that the protection of water bodies and other common properties of the people is a constitutional duty cast on the 18 RRR,J W.P.No.11983 of 2013 & batch authorities of the State. The following passages in the judgements of the hon'ble Supreme Court, would suffice:
26. In Hinch Lal Tiwari v. Kamala Devi,1, the hon'ble Supreme court had held as follows:
12. On this finding, in our view, the High Court ought to have confirmed the order of the Commissioner. However, it proceeded to hold that considering the said report the area of 10 biswas could only be allotted and the remaining five biswas of land which have still the character of a pond, could not be allotted. In our view, it is difficult to sustain the impugned order of the High Court. There is concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house building or any allied purposes.
13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites.1
(2001) 6 SCC 496 : 2001 SCC OnLine SC 862 at page 500 19 RRR,J W.P.No.11983 of 2013 & batch
14. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2-1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the best interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass-root level if they were to become the nation's pride.
27. The Hon'ble Supreme Court, reiterated the above view, in the following words, in Intellectuals Forum v. State of A.P.,2:
Public trust doctrine
74. Another legal doctrine that is relevant to this matter is the Doctrine of Public Trust. This doctrine, though in existence from Roman times, was enunciated in its modern form by the US Supreme Court in Illinois Central Railroad Co. v. People of the State of Illinois [146 US 387 : 36 L Ed 1018 (1892)] where the Court held:2
(2006) 3 SCC 549 : 2006 SCC OnLine SC 210 at page 574 20 RRR,J W.P.No.11983 of 2013 & batch "The bed or soil of navigable waters is held by the people of the State in their character as sovereign in trust for public uses for which they are adapted.
(L Ed p. 1018) *** The State holds title to the bed of navigable waters upon a public trust, and no alienation or disposition of such property by the State which does not recognise and is not in execution of this trust, is permissible.
(L Ed p. 1033)"
What this doctrine says therefore is that natural resources, which include lakes, are held by the State as a "trustee" of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust. Though this doctrine existed in the Roman and English law, it related to specific types of resources. The US courts have expanded and given the doctrine its contemporary shape whereby it encompasses the entire spectrum of the environment.
75. The doctrine, in its present form, was incorporated as a part of Indian law by this Court in M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] and also in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu [(1999) 6 SCC 464] . In M.C. Mehta [(1997) 1 SCC 388] , Kuldip Singh, J., writing for the majority held: (SCC p. 413, para 34) "34. Our legal system ... includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. ... The State as a trustee is under a legal duty to protect the natural resources."
.......................
79. Further the principle of "Inter-Generational Equity"
has also been adopted while determining cases involving environmental issues. This Court in A.P. Pollution Control 21 RRR,J W.P.No.11983 of 2013 & batch Board v. Prof. M.V. Nayudu [(1999) 2 SCC 718] in para 53 held as under: (SCC p. 739) "53. The principle of inter-generational equity is of recent origin. The 1972 Stockholm Declaration refers to it in Principles 1 and 2. In this context, the environment is viewed more as a resource basis for the survival of the present and future generations.
'Principle 1.--Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for the present and future generations.... Principle 2.--The natural resources of the earth, including the air, water, lands, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of the present and future generations through careful planning or management, as appropriate.
(emphasis in original)
80. Several international conventions and treaties have recognised the above principles and, in fact, several imaginative proposals have been submitted including the locus standi of individuals or groups to take out actions as representatives of future generations, or appointing an ombudsman to take care of the rights of the future against the present (proposals of Sands and Brown Weiss referred to by Dr. Sreenivas Rao Permmaraju, Special Rapporteur, paras 97 and 98 of his report).
81. The principles mentioned above wholly apply for adjudicating matters concerning environment and ecology. These principles must, therefore, be applied in full force for protecting the natural resources of this country. 22
RRR,J W.P.No.11983 of 2013 & batch
82. Article 48-A of the Constitution mandates that the State shall endeavour to protect and improve the environment to safeguard the forests and wildlife of the country. Article 51-A of the Constitution enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. These two articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these principles in making laws and further these two articles are to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution and also the various laws enacted by Parliament and the State Legislatures.
28. The Hon'ble Supreme court in a recent judgement in Jitendra Singh v. Ministry of Environment3, had again reiterated the above principles:
19. Even otherwise, the action of the respondent authorities contravenes their constitutional obligations.
Article 48-A of the Constitution casts a duty on the State to "endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country", and Article 51-A(g) expects every citizen to perform his fundamental duty to "protect and improve the natural environment". A perusal of our constitutional scheme and judicial development of environmental law further shows that all persons have a right to a healthy environment. It would be gainsaid that the State is nothing but a collective 3 (2020) 20 SCC 581 : 2019 SCC OnLine SC 1510 at page 589 23 RRR,J W.P.No.11983 of 2013 & batch embodiment of citizens, and hence collective duties of citizens can constructively be imposed on the State. Such an interpretation of the Constitution has also been adopted in M.C. Mehta v. Union of India [M.C. Mehta v. Union of India, (1988) 1 SCC 471 : 1988 SCC (Cri) 141] wherein this Court mandated the State to ensure mandatory environmental education to all school students in pursuance of the fundamental duties enshrined in Article 51-A(g) : (SCC p. 491, para 24) "24. Having regard to the grave consequences of the pollution of water and air and the need for protecting and improving the natural environment which is considered to be one of the fundamental duties under the Constitution [vide clause (g) of Article 51-A of the Constitution] we are of the view that it is the duty of the Central Government to direct all the educational institutions throughout India to teach at least for one hour in a week lessons relating to the protection and the improvement of the natural environment including forests, lakes, rivers and wildlife in the first ten classes. The Central Government shall get textbooks written for the said purpose and distribute them to the educational institutions free of cost. Children should be taught about the need for maintaining cleanliness commencing with the cleanliness of the house both inside and outside, and of the streets in which they live. Clean surroundings lead to healthy body and healthy mind. Training of teachers who teach this subject by the introduction of short term courses for such training shall also be considered. This should be done throughout India."
20. There remains therefore no doubt that it is the responsibility of the respondents to ensure the protection and integrity of the environment, especially one which is a 24 RRR,J W.P.No.11983 of 2013 & batch source for livelihood for rural population and life for local flora and fauna.
21. Protection of such village commons is essential to safeguard the fundamental right guaranteed by Article 21 of our Constitution. These common areas are the lifeline of village communities, and often sustain various chores and provide resources necessary for life. Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.
22. The respondents' scheme of allowing destruction of existing waterbodies and providing for replacements, exhibits a mechanical application of environmental protection. Although it might be possible to superficially replicate a waterbody elsewhere, however, there is no guarantee that the adverse effect of destroying the earlier one would be offset. Destroying the lake at Khasra Nos. 552 and 490, for example, would kill the vegetation around it and would prevent seepage of groundwater which would affect the already low water table in the area. The people living around the lake would be compelled to travel all the way to the alternative site, in this case allegedly almost 3 km away. Many animals and marine organisms present in the earlier site would perish, and would not resuscitate by merely filling a hole with water elsewhere. Further, the soil quality and other factors at the alternate site might not be conducive to growth of the same flora, and the local environment would be altered permanently. The respondents' reduction of the complex and cascading effects of extinguishing natural waterbodies into mere numbers and 25 RRR,J W.P.No.11983 of 2013 & batch their attempt to justify the same through replacement by geographically larger artificial waterbodies, fails to capture the spirit of the constitutional scheme and is, therefore, impermissible.
23. Hence, it is clear that schemes which extinguish local waterbodies albeit with alternatives, as provided in the 2016 Government Order by the State of U.P., are violative of constitutional principles and are liable to be struck down.
29. A conspectus of the above judgements makes it clear that the maintenance and revival of water bodies is a constitutional duty cast on the State and it's instrumentalities. The right to ecological balance and protection against ecological degradation of water bodies inheres in the fundamental right to life mandated under Article 21 of the Constitution of India to every person in India. The extinction of lakes and water bodies at the altar of development, increase in population and urbanization cannot be given a free run by the State. The principle of inter generational equity requires the present generation of people and the State to preserve the environment to the best of our ability and to pass it on to the next generation. Any deviation from this principle has to be nipped at the very inception. We are only trustees, who have a duty to protect and preserve the environment for the benefit of future generations. These vanishing water bodies, especially in urban areas, are a signal for immediate action on the part of the State and all stake holders to revive these water bodies. The principle that needs to be followed by the State and it's instrumentalities, subject to overriding requirements of extraordinary 26 RRR,J W.P.No.11983 of 2013 & batch circumstances and imminent need, is " Once a water body, always a water body" .
30. In view of the above judgments of the Hon'ble Supreme Court, and the peremptory directions contained therein, the Municipal Corporation of Guntur is duty bound to revive the said tank and the said land cannot be used as a burial ground.
31. The revival of the tank would mean that the land assigned to Sri Gera Lazaraus and the deceased petitioner in W.P.No.12332 of 2013 would be lost to submergence. In such circumstances, it would only be appropriate that the petitioners in W.P.No.13806 of 2013/W.P. No. 11983 of 2013( as the case may be) and petitioner No.2 in W.P.No.12332 of 2013 would be entitled to assignment of their respective extents of land elsewhere.
32. In the circumstances, these writ petitions are being disposed of in the following manner.
1. W.P.No.1616 of 2015 is dismissed.
2. W.P.No.12332 of 2013 is disposed of with a direction to the respondent revenue authorities to assign Ac.2.00 of land to the 2 nd petitioner in W.P.No.12332 of 2013, in any other suitable location, while her claim over the land in Sy.No.492 of Gorantla Village would have to be treated as extinguished on account of the proposed revival of the tank in the said land.
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3. W.P.No.11983 of 2013 and W.P. No. 13806 of 2013 are disposed of with a direction to the respondent revenue authorities to conduct an enquiry into the nature of the assignment made to late Sri Gera Lazarus, and in terms of Section 4 (1) (a) of the Act, to determine who would be entitled to the alternative assignment of land and to assign an equivalent extent of land, claimed by the said petitioner, in a suitable location, to the person who would be entitled to such land, after conduct of the enquiry directed above. The claim of the successful writ petitioner over the land in Sy.No.492 of Gorantla Village would have to be treated as extinguished on account of the proposed revival of the tank in the said land.
4. W.P.No.18759 of 2013 is allowed with a direction to the Muncipal Corporation of Guntur, to revive the said Polisetty Kunta by way of excavation and development of the said Ac.11.00 of land into a water body.
There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________ R. RAGHUNANDAN RAO, J 26th April, 2023 Js.
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RRR,J W.P.No.11983 of 2013 & batch HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO W.P.Nos.11983, 12332, 13806, 18759 of 2013 And W.P.No.1616 of 2015 26th April, 2023 Js.