Andhra HC (Pre-Telangana)
G. Soma Raju And Ors. vs Government Of Andhra Pradesh And Ors. on 16 July, 2002
Equivalent citations: 2002(5)ALD29, 2002(4)ALT728
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Ar. Lakshmanan, C.J.
1. The petitioners herein who are twenty in number and residents of Suryaraopet, Kakinada Rural, Kakinada, belonging to fishermen community, have filed this writ petition by way of Public Interest Litigation for a writ of mandamus declaring the action of the respondent No. 1 - Government of Andhra Pradesh in converting and leasing out the Beach Park situated at Kakinada Port in favour of respondent No.4 - M/s. Indian Molasses Company Ltd., Chennai (IMC) for establishing an industrial unit as illegal, arbitrary, capricious, without any sanction of law and violative of their fundamental right guaranteed under Article 21 of the Constitution of India and for a consequential direction to the respondents to take necessary steps for removal of encroachments and restore the Beach Park to its original position and maintain it properly.
2. It appears that a news item published in a Telugu Daily Newspaper, Andhra Bhoomi of Rajahmundry Edition dated 8-4-2002 had prompted the petitioners to file this PIL. According to the petitioners, the paper highlighted about the arbitrary decision taken by the Government in allotting the Beach Park to respondent No.4 under a lease agreement for a period of 30 years on nominal price in a clandestine manner on the pretext of industrial development. The newspaper also pointed out that an extent of five acres of land out of the Beach Park area was allotted in favour of another industry called Khairan.
3. It is averred that prior to modernisation of Kakinada Deep Water Port, an extent of 22 acres of land belonging to Port was developed into a park commonly known as Beach Park with the financial aid and assistance of DRDA, Forest Department, Panchayat Raj, Port Department. The general public of Kakinada and the entire fishermen community is enjoying the environmental atmosphere prevailed and maintained in the park. The park has been entrusted to Kakinada Municipality - 3rd respondent which in turn was handed over to M/s. Nagarjuna Fertiliser Chemicals Ltd., for proper maintenance. Subsequently, the park was sold away to the port for the purpose of port development.
4. The petitioners further state that the fishermen after completing their fishing operations used to take rest under the shade of the trees in the park. Not only the general public of Kakinada town but even the people belonging to different places in and around Kakinada visit the Beach Park in holidays with their children. Ignoring the public interest, the 1st respondent leased out an extent of ten acres of land covered by Beach Park in favour of respondent No.4 for establishing the industrial unit in the said park. The oral representation made by the petitioners to the respondents - authorities for cancellation of the lease deed did not fructify. If the 4th respondent is allowed to establish the industrial unit of molasses nature, it emanates bad odour resulting in pollution of air and water thereby causing health hazards.
5. The State is under a constitutional obligation to take steps to protect and maintain ecological balance for the well being of its citizens. The respondents-authorities in the instant case have not exercised the power to meet the spirit and object of the environmental protection but have exercised the power in arbitrary and capricious manner and in violation of Article 21 of the Constitution of India as right to clean environment and healthy life is also an integral part of the right to life guaranteed under Article 21 of the Constitution, The action of the respondents in converting, demolishing the beautiful public park is unauthorised and without any sanction of law. The park should not be allowed to be used for purposes other than recreation, as the parks are lungs of the cities. It is the statutory duty and function of the local authority to see that the health and hygiene of the general public is maintained. The action of the respondents is in violation of the provisions of the Environment (Protection) Act, 1986, The A.P. Urban Area (Development) Act, 1975 and A.P. Municipality Act. It is further averred that pursuant to the allotment of the park area, respondent No.4 has commenced work by removing the recreation facilities and demolishing the trees and greenery and levelling the ground in order to facilitate for construction of storage tanks etc.
6. On the above allegations, the petitioners have sought for the relief mentioned supra.
7. A counter-affidavit was filed by the Director of Ports, Kakinada on behalf of respondents 1 and 2. In para 7 of the counter-affidavit it is stated that the Government in G.O. Rt. No.715, TR & B Department dated 9-9-1997 accorded permission to the 2nd respondent to take back the beach park with superstructures and amenities etc., from the Kakinada Municipality for the use of Kakinada Port Project on payment of Rs.34,27,134/- to Kakinada Municipality as compensation for development of works undertaken by the municipality in and around the port area. It is further submitted that the Government thereafter issued G.O. Rt. No.60 TR & B (Ports) Department dated 28-4-1999 according permission to the 2nd respondent for temporarily handing over 16 acres of land near Vakalapudi Light House to the 3rd respondent for its development as a Beach Park and subsequently the 3rd respondent requested permission of the Government to utilise the amount given as compensation to develop Raja Tank Park instead of Beach Park at Vakalapudi as the same is far away from the town and situated outside the municipal limits. Pursuant to the request of the 3rd respondent, Government vide G.O.Ms.No. 123, TR & B Department dated 19-8-2000 accorded permission to the 3rd respondent to utilise the sum of Rs. 34,127,134/- for the development of Raja Tank Park. The 4th respondent which has expertise in handling of all varieties of liquid cargoes and has 'experience of more than 50 years in the field has requested the 2nd respondent for allotment of an extent of 15 to 20 acres of land in the port area for construction of liquid cargo storage terminal. The counter has referred to the correspondence between the 4th respondent and the Government from 1990 onwards. Ultimately, a lease agreement was entered into between the Government and the 4th respondent on 7-11-2001 and an extent of Ac.9.67 cents of land on the north of the dismantled beach park was handed over to the 4th respondent on 7.12.2001. It is also stated that out of an amount of Rs. 15,60,000/-remitted by the 4th respondent previously, an amount of Rs. 5,23,000/- was adjusted towards lease charges for one year commencing from 7-11-2001 and a further sum of Rs. 2,69,116/- was adjusted towards earnest money deposit. It is also stated that the other applications for allotment of land in the Kakinada Port area are for construction of godowns and for other storage facilities and not for handling high viscosity liquids. Further in 1994-95 itself 28 plots were allotted to various port users for construction of godowns and for storage purposes.
8. The 3rd respondent-municipality has also filed a separate counter denying the allegations of the petitioners. It is submitted that the respondent-municipality is not the owner of the Beach Park site and as per the decision taken by the District Collector, East Godavari, the municipality developed the beach park in an extent of Ac. 19.51 cents in between Kumbabhishekam Temple and Fishing Harbour which belongs to Port Department by pooling resources from various agencies including Port Department. The municipality created recreation facility for general purpose during the years 1986-88 and invested an amount of Rs. 36.27 lakhs and maintained the Beach Park. The beach park land is not within the municipal limits and is situated far away from the town just opposite to N.F.C.L. which comes under rural area and at the request of the NFCL, the Municipal Council by resolution dated 28-11-1989 handed over the beach park to NFCL for maintenance. The NFCL has maintained the beach upto 30-4-1998. The Director of State Ports, Kakinada in his letter dated 21-1-1995 requested the Government to take back the Beach Park with superstructures and amenities from Kakinada Municipality as it comes under Deep Water Port Area, Security Zone, restricting public entry, in terms of safety and security of port operations. The Government in G.O. Rt. No.750 TR & B dated 9-9-1997 accorded permission to the Director of State Ports to take back the beach park with superstructures from Kakinada Municipality and permission was also accorded to pay Rs. 34,27,134/- to Kakinada Municipality as compensation for development of works in and around port area. The Municipal Council, Kakinada in its resolution No.83 dated 30-4-1998 ratified the action taken by the Chairperson to handover the beach park to Port Department subject to condition of payment of an amount of Rs. 34.27 lakhs by Port Department to Kakinada Municipality as compensation towards amount invested by the municipality for superstructures.
9. The 4th respondent has filed a detailed counter-affidavit explaining as to how the land was allotted to the 4th respondent after prolonged correspondence with the concerned authorities.
10. We have heard Sri C. Mallareddy learned senior Counsel appearing for the petitioners, the learned Additional Advocate-General appearing for the respondents 1 and 2, Sri E. Sambasiva Pratap, learned Counsel appearing for the 3rd respondent and Sri S. Venkat Reddy, learned senior Counsel appearing for the 4th respondent.
11. The learned Counsel appearing for the petitioners would submit that the accountability of the respondents in maintaining ecological balance to meet the constitution goals/objects is totally lacking and that the respondents have not exercised the power to meet the spirit and object of the environmental protection as obligated under law but have exercised their power in an arbitrary and clandestine manner in violation of the zonal regulations. The said action, according to the learned senior Counsel, has resulted in violation of the fundamental rights of the citizens, as the right to clean environment and healthy life is an integral part of the right to life guaranteed under Article 21 of the Constitution of India. He would further urge that it is the duty of the State to raise the level of nutrition and the standard of living and to improve public health as enshrined under Article 47 of the Constitution. Thus, it is submitted that the action of the respondent in converting and demolishing the public park where the residents of Kakinada and more particularly people from fishermen community rest and relax in the evenings after sweating out the whole day is illegal and allotment of the same on lease to 4th respondent is, unauthorised and without the sanction of law. He would further submit that the land earmarked for park cannot be converted or changed into land for other purposes like establishing industry and/or vegetable refinery, oil tanks and it should not be allowed to be used for purposes other than recreation as the parks are lungs of the cities and localities. He would also submit that it is the statutory duty and function of the local authorities to see that the health and hygiene of the general public is maintained. As such, the allotment of public park area to respondent No.4 for establishing an industry which creates pollution of the environment and unhygienic conditions amounts to violation of the provisions of the Environment (Protection) Act, 1986, A.P. Urban Area (Development) Act, 1975 and A.P. Municipalities Act.
12. The learned Additional Advocate-General appearing for the Director of Ports would submit that the writ petition has been filed without understanding the factual situation under the guise of public interest litigation, hence the writ petition is not maintainable in law and is liable to be dismissed in limini. The learned Additional Advocate-General has invited our attention to the orders passed in G.O. Rt. No.715 dated 9-9-1997, G.O. Rt. No.60, TR&B Department dated 28-4-1999 and G.O. Ms. No. 123 TR&BV, dated 19-8-2000 by which the 3rd respondent was accorded permission to utilise a sum of Rs. 34,27,134/- for the development of Raja Tank Park.
13. Learned Counsel appearing for the 3rd respondent - Municipality would submit that municipality is the owner of the beach park land and that the municipality by its resolution has resolved to handover the beach park to NFCL for the purpose of maintenance which maintained the beach park upto 30.4.1998. Learned Counsel also invited our attention to G.O. Ms. No.750, dated 9-9-1997 according permission to the Director of State Ports to take back the beach park with super structures from Kakinada Municipality and according an amount of Rs. 34,27,134/- to the municipality as compensation for development of works in and around the port area. He also invited our attention to the resolution passed by the municipality dated 30-4-1998 requesting the Government to develop Raja Tank park in Kakinada town as regular Park and pursuant to the said resolution, proposals were sent to the Government for according permission to utilise the amount for the development of Raja Tank Park, vide proceedings dated 9-11-1999. Pursuant to the notification inviting tenders for developing Raja Tank park which are under scrutiny, the State Government has re-allotted port land by way of lease to an extent of ' Ac.9.67 cents to M/s. IMC Limited, vide memo dated 19-11-2001 and that the Port Officer, Kakinada has handed over the said land to M/s. IMC Ltd., Kakinada, vide letter dated 17-12-2001. Learned Counsel would submit that the Municipality is in no way concerned about the allotment of beach park to 4th respondent and there was no necessity for the respondent to give consent for the same as it is not the owner of the said site and that the beach park site is located in Kakinada rural Mandal but not within the municipal limits.
14. Sri Venkat Reddy, learned senior Counsel appearing for the Fourth -respondent has first invited our attention to the averments made in paragraph 2 of the writ-affidavit which reads thus:
I submit that we belong to Fishermen Community. Our main livelihood depends on fishing operations. After we complete fishing operations in bay of Bengal, we all take rest and relax after sweating the whole day in the Bengal Bay. We have deep concern towards development and welfare of our community as we most belong to downtrodden category.
15. Commenting on the above averments, learned senior Counsel would submit that except the 1st and 9th petitioners, all other petitioners are women and they are residents of Suryaraopet and that the said village is about 6 kms from beach park i.e., the place where the 4th respondent has been allotted the said extent of land of Ac.9.67 cents. He would further submit that on enquiry made by the 4th respondent, it is revealed that none of the petitioners are conducting any fishing operations to eke out their livelihood and that the 1 st petitioner is an MPTC member and most of the other petitioners are working as daily wage labourers in the industries located in and around the village. Therefore, the contention of the petitioners that they eke out their livelihood by conducting fishing operations is false. We see force in the said contention. In this view of the matter, the allegation that they take rest and relax after sweating out the whole day in the beach park after completing fishing operations is not believable.
16. We have carefully scanned the entire material placed before us and the detailed counters filed by all the authorities and also the various G.Os and proceedings referred to in the counter-affidavits. As already seen, the land allotted to the 4th respondent is in the port area and the same has been allotted after prolonged correspondence starting from 1994. The beach park was developed in Kakinada port between Kumbabishekam Temple and Fishing Harbour area over an extent of Ac. 19.51 cents by the 3rd respondent during the period 1986-88 as per the decision of the District Collector by pooling resources from the Government and also the Port authority to provide certain recreational facilities and the title of the land continued to vest in the port authority. Owing to certain financial constraints, the maintenance of the park was initially entrusted to the municipality and subsequently to NFCL by the municipality.
17. It appears that in the year 1990 a decision was taken to develop the Deep Water Port at Kakinada and after approval of the Master Plan for the Development of Deep Water Port, the beach park was found to be coming in the way of the development plans of the Port Department.
It was also found that the continuance of the park at that area was found to be detrimental to the various activities to be taken up at the Deep Water Port berths and port operations. Thereafter, during the year 1994-95, the 2nd respondent sent a proposal to the 1st respondent for taking back the beach park from the 3rd respondent for use of Kakinada Port Project coming up near the Beach Park area. In response to the said request, the 1st respondent issued G.O.Rt.No. 750 TR & B dated 9-9-1997 according permission to the 2nd respondent to take back the beach park from the 3rd respondent and to pay Rs. 34,27,134/- to the 3rd respondent towards compensation for the superstructures developed by the 3rd respondent in the said park. Thereafter, the Government issued G.O. Ms. No. 60 TR&B, dated 28-4-1999 according permission to the 2nd respondent for temporarily handing over 16 acres of land near Vakalapudi Light House to the 3rd respondent for developing as a beach park. The municipality then requested the 1st respondent to permit them to utilise the compensation amount to develop Raja Tank Park in Kakinada town instead of Vakalapudi beach as the same is far away from the Kakinada town and outside the municipality limits. Pursuant to the same, the Government issued G.O. Ms. No. 123, TR&B, dated 19.8.2000 according permission to the municipality to utilise the sum of Rs. 34,27,134/- for development of Raja Tank Park. It may be noticed from the material on record that though the beach park was officially handed over to the 2nd respondent on 16-9-1999, the 3rd respondent had stopped maintaining the park from the year 1997 onwards. It is pertinent to point out that even before the land was handed over to the 2nd respondent by the 3rd respondent, all the structures such as children playing material, which are in good condition, fountains etc., were removed. Other than trees and bushes and rusted play material, there is nothing reminiscent of the park. It further appears that the dismantled beach park is now surrounded by ADB road on one side, which was developed to meet the traffic needs of Port, and on the three sides by port approach roads. The port entrance gate is at about a distance of 30 meters from the beach park. After constructing Deep Water Port at about 800 meters from the shore, the area between the berths and shore is reclaimed with sand and gravel and is developed as backup area for allotting to various port users. After reclamation, there is no water frontage to the beach park. The 115 acres of land between Beach Park and berths is being allotted to various port users for setting up storage terminals and industries. One edible oil refinery has already come up within 30 meters from the beach park on the northern side and the area opposite to Beach Park on the western side is being used as stacking area for FELDSPAR, which is meant for export. The area on eastern side of beach park was developed as stacking yard for imported coal and dangerous cargoes like petroleum products, ammonia, Phosphoric acid and sulphuric acid are being handled at Deep Water Port which is only at about 800 metres distance from beach park and some of the pipelines used to receive the above products from ships to the storage terminals are running along side beach park at about 30 metres distance. As per the master plan of the Deep Water Port, 22 berths will be needed for handling the projected ultimate cargo volume. Most of the industries importing/exporting cargo through Deep Water Port of Kakinada needs railway-sliding facility for transportation of cargo and that the port authorities are planning to provide rail connection to Deep Water Port by laying railway line upto the area between Nagarjuna Fertilizers and beach park and that the Government has already allotted about 60 acres of land for laying railway track and for developing railway yard for stacking export/import cargo and once laying of railway line is completed the traffic around beach park would increase further. In view of the above activities around Beach Park it is urged that the beach park is not suitable for recreational purposes. We find merit in this contention.
18. The learned senior Counsel appearing for the 4th respondent while referring to the various submissions made in the writ petition, submitted that the paper publication dated 8-4-2002 is not based on correct facts and that some people with vested interests with a view to see that the project of the 4th respondent is delayed, have got the said news item published in the newspaper. It is also submitted that the lease amount paid by the 4th respondent is not nominal and that allotment was made after ten long years after the 4th respondent had made the application for allotment of land in the port area. In fact the amount of Rs. 15,69,000/- paid by the 4th respondent way back in the year 1994 is lying with the port authorities and as of now, according to the 4th respondent, even if a nominal rate of interest is applied, the said amount would be more than Rs. 35.00 lakhs and while entering into a lease with the 4th respondent, an amount of Rs. 5,38,232/-was adjusted towards one year lease charges and a further sum of Rs. 2,69,116/- was adjusted towards EMD, out of the said amount of Rs. 15,69,000/-. The balance amount of Rs. 7,61,652/- is still lying with the port authorities. Under these circumstances, it cannot be said that the lease in favour of the 4th respondent is at a nominal price or that the lease was entered into in a clandestine manner or that the decision was arbitrary.
19. As already stated earlier, the beach park in view of the development of the port cannot be used as a park, as it will be surrounded by several units and as such alternate land was allotted near the beach at Vakalapudi lighthouse. As already noticed, the beach park cannot be used as a park in view of the Master Land Use Plan prepared for the development of the port area. Reclamation of the beach park area and allotting 16 acres of land elsewhere for the purpose of a park, cannot be termed as an action against the public interest.
20. We have earlier noticed that except petitioners 1 and 9, all the other petitioners are women. Assuming without admitting that the petitioners belong to fishermen community, normally no woman goes on to the deep seas for fishing. It is only men who go on to the deep seas for fishing and the women ,help them in cleaning and drying the fish on the beach. Therefore, there is absolutely no public interest involved in the writ petition nor can it be said that the allotment of land in favour of the 4th respondent is either arbitrary or illegal or impermissible.
21. As regards the allegation that if the 4th respondent is allowed to establish industrial unit of molasses nature it emanates bad odour resulting in air and water pollution thereby causing health hazards, it is stated that the liquid cargo is stored in air tight tank and the liquid cargo is pumped into the tanks or out of them through mild steel pipes and as such there is no possibility of liquid cargo causing any air or water pollution or emanating bad odour. It is also pointed out that the 4th respondent has been storing molasses in covered tanks in several ports for the last 60 years and it has been granted requisite permissions from various statutory bodies like Pollution Control Board, Chief Controller of Explosives (in case of Chemicals and Explosive products). Therefore, the apprehension of the petitioners that the establishment of the unit of the 4th respondent will result in air and water pollution has no basis.
22. As already noticed, the land in beach park belongs to the port authorities and the same was taken back from the 3rd respondent after paying compensation to the 3rd respondent for development of the beach and after allotting 16 acres of land elsewhere for developing it into a park. The beach park had to be re-located as the Kakinada Port has been developed into a Deep Water Port and the land in the vicinity is required to be allotted to port based industries. The port authority has constructed 3 berths and developed about 115 acres as back up area by filling the same with sand and gravel, as a result of which there is no sea frontage for the beach park now. As already seen, the park is now surrounded on all the four sides byroads leading to the port with heavy vehicular traffic. As per the master plan of the port, some more berths will come up in the port area later on, due to which heavy vehicular traffic will increase and it is not in the interest of the public to use the said area as a park. Therefore, we hold that the action of the respondents cannot be said to be either unauthorised or without jurisdiction or without any sanction of law or violative of the rights of the petitioners guaranteed under Article 21 of the Constitution of India or contrary to the provisions of the Environment Protection Act, 1986 or the A.P. Urban Area Development Act, 1975 or the A.P. Municipalities Act. The petitioner has failed to establish as to how in what manner the action of the respondents has contravened the provisions of the aforesaid enactments. The allegation that the establishment of the industry by the 4th respondent would create pollution of the environment and unhygienic conditions and further deprive healthy environment for its citizens to live in has also no basis. There is no manufacturing process undertaken nor is the liquid cargo processed. Only the liquid cargo would be stored in closed tanks and the same would be pumped out through mild steel pipes. The said process would not cause any air or water pollution nor emanate any bad odour. It is stated that the liquid cargo will be stored after duly complying with the conditions stipulated by the concerned authority. Therefore, there is no need to apprehend that the establishment of IMC unit would cause air and water pollution. In view of the master plan prepared for the development of the port, the allegation that the action of the respondents is violative of costal regulations has no merit. The 2nd respondent being the absolute owner of the properly, it has every right to utilise the said property for the development of the port. Once the port is modernised, there is bound to be development in and around the port area and consequently, the 2nd respondent is also duty bound to provide better export and import facilities at the port.
23. No doubt, the park cannot be used for purposes other than recreation. But, the beach park was developed during 1986-88 when there was no major activity at the port. However, after the approval of the master plan for the development of Deep Water Port at Kakinada, necessity arose for development of the area in and around the port to provide facilities for import and export of the cargo. For the said purpose, the 2nd respondent cannot be deprived of their right to take back their property, which was rightly reverted back to it by the Government in their orders in G.O. Rt. No.715, dated 9-9-1997.
24. It is true that right to clean environment and healthy life is an integral part of the right to life guaranteed under Article 21 of the Constitution of India. But, in view of the peculiar facts and circumstances involved in the case, we are of the view that no such right of the petitioners is infringed so as to warrant interference by this Court. It is stated in the counters that liquid cargo will be stored and processed after duly complying with the conditions laid down by the appropriate authority and as such there is no scope for air or water pollution.
25. It is submitted by the learned senior Counsel appearing for the 4th respondent that the petitioners have approached this Court with unclean hands and without any basis and by virtue of the stay granted by this Court, the construction activity has been stalled and the 4th respondent is incurring huge loss. It is submitted that the respondent had already invested about Rs. 1.2 crores in the project and if the project is not implemented as per the schedule, the 4th respondent cannot keep up its commitments and it will be put to grave and irreparable loss and the Government would also loose revenue which it would make from out of the import and export of liquid cargoes. We see merit in the submission. In our opinion, the petitioners with an oblique motive have filed the writ petition. The petitioners appear to have been set up by some interested parties. The Municipality, which was not the owner of the beach park site, has unnecessarily been impleaded as party to the proceedings and was made to contest the case. In our view, there is absolutely no public interest involved in the petition and the allegations that the writ petition is filed in public interest questioning the unauthorised and impermissible action in converting the beach park etc., are not established. The title of the land continues to vest with the port authority and the same has been given only on lease to the 4th respondent after prolonged correspondent with the port authorities. The writ petition has been filed with ulterior motive under the guise of public interest litigation and hence the same is not maintainable in law and is liable to be dismissed. The factual aspects discussed above do not watrant interference of this Court in the matter.
26. The learned Counsel for the petitioners relied upon the decisions of the Apex Court in Bangalore Medical Trust v. B.S. Muddappa, , M.J. Builders Pvt. Ltd. v. Radhey Shyam Sahu, and the decision of this Court in Co-operative Housing Society Ltd. v. Municipal Corporation of Hyderabad, etc. Since we have arrived at the conclusions purely on the basis of the factual matrix involved, we are not inclined to refer to the said decisions as they have no application to the facts on hand.
27. For the foregoing reasons, we are of the opinion that the writ petition has no merit and it is liable to be dismissed. It is accordingly dismissed. The interim order passed by this Court in WPMP No.9906 of 2002 dated 24-4-2002 shall stand vacated. The respondents are at liberty to proceed further. No order as to costs.