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Forum For A Better Hyderabad vs Government Of Andhra Pradesh And Ors. on 23 January, 2002 cites

Forum For A Better Hyderabad, ... vs Govt. Of A.P. And Others on 15 June, 2001

In order to maintain the prayer, the decision of this Court in Forum for a Better Hyderabad v. Government of A.P. 2001(4) ALD 776, (WPNo. 26378 of 2000) was relied on in which the present petitioner's Organisation was the petitioner in that writ petition. According to the petitioner, the water body of Hussain Sagar maintains the ecological and micro climatic balance in the urban areas of Hyderabad and Secunderabad and any action of the Government which tampers with the water body area is liable to be declared as violative of Environment Protection Act and Article 48-A of the Constitution of India and that no action which tampers with water body and its surrounding area should be allowed to take place. It is further stated that the first respondent has decided to permit a World Trade Centre to come up in an area of 4 hectares of Water Body of Hussain Sagar Lake in 1994. The multi-storeyed office complex was sought to be promoted by the Government in the name of industrial and economic development and the Industries and Commerce Department issued G.O. 392 dated 1-10-1994 and that the prime lands in the State were sought to be alienated in favour of Dunken Macnell Limited. The said G.O. was challenged by one Capt. J. Rama Rao and the Society for Preservation of Environment and Quality of Life (SPEQL) in WP No. 22307 of 1995 and this Court vide interim orders dated 29-9-1995 directed maintenance of status quo as on that day pertaining to four hectares of land in TS No. 5/2, Part - Block B, Ward No. 80, Khairtabad. Subsequently, the Government withdrew G.O. 392 dated 1-10-1994. It is submitted that the road laid from Telugu Talli statue to Visweswarayya statue now known as NTR Marg separated the area covered under G.O. 363 from the main water body of Hussain Sagar Lake and this area continues to be shown as water body in zonal development plan vide HUDA Letter No. 5179/HUDA/1995 dated 11-7-1994 and that several months after the four hectares of land was alienated to M/s. Duncan Macnell Group, as an afterthought, the Government issued Memo No. 1/11/95-2 M.A., dated 17-5-1995 proposing to change the land use to commercial. The proposed change of land use was reported to have been published in extraordinary issue of A.P. Gazette No. 219 Part I dated 22-5-1995 calling for objections and suggestions, but the petitioner could not get copy of the same. According to the petitioner, the Government declared its intention to take up 18 tourism projects in and around the Hussain Sagar Lake in WP No.26378 of 2000 filed by the petitioner organisation. The said writ petition was disposed of with a clear direction that no further permanent structures including those involving commercial activities may be allowed to be raised on or near the water spread or catchment area of the Hussain Sagar Lake. However, construction of an amusement park etc., were permitted subject to prior approval of the A.P. Pollution Control Board. The petitioner was under the impression that no further permanent structures would come around Hussain Sagar. In has now come to light that permanent structure in the name and style of Imax theatre is coming up. This Imax Theatre is not a single structure but includes multiplexes, mini game parlour, concern halls for live performances of fine arts etc., and that the Pollution Control Board did not seem to have cleared these projects but simply opined that environment impact assessment and environment management plans are to be furnished. The petitioner came to know that theatre is being constructed within the NTR Garden area, but it has come to light that this is being contructured within the water body covered in G.O. 363 dated 23-8-1995. According to the petitioner, such activity of permanent structures, theatres etc., should not be permitted in and around the lake and the present activity shows that concrete columns to the depth of 30 to 35 feet are being laid throughout day and night for the last several days and the commercial activity in the name of entertainment in the vicinity of lake is bound to affect the environment. According to the petitioner, the A.P. Pollution Control Board ought to have given the petitioner prior notice before proceeding with any application for any of the projects around the Hussain Sagar and that present activity in the area covered by the said G.O. is violative of Article 243-ZE of the Constitution of India and that the G.O. itself is against the protection and enhancement of environment. It is also submitted that the State Government by issuing G.O 363, MA dated 23-8-1995 under the provisions of Section 12(2) of the Urban Areas, Act, 1975 has acted without any legal sanction and interfered with the Constitutional and Statutory power of the self Government and the Commissioner of Municipal Corporation of Hyderabad. Moreover, the State Government is also denying or restricting the public use of Buddha Purnima Project Area by changing the land use and alienating or leasing out to private parties. According to the petitioner, it is only a Metropolitan Planning Committee, which shall be entitled to prepare a draft development plan for the Metropolitan area as a whole or modify revise or alter any existing master plan. Therefore, the relevance of provisions of Urban Areas Act, 1975 in Chapter III relating to preparation, revision and modification of Master Plan and Zonal development plans and the constitution of Special Area Development Authorities such as Buddha Poornima Project Authority, Hyderabad Development Authority etc., under the guise of the need for Special Planning Control will have to be reviewed in the light of Articles 243-ZE and ZF. It is further submitted that it is mandatory for the authority to publish the notification for change in land use in three major newspapers, which will entitle the public to know the proposed change in land use and then submit that objections and suggestions to the competent authority. Rule 12-A requires the Government to publish the proposal in official gazette only. The gazette will not be available to the concerned citizens and as in the present case, the G.O. was brought out and made public only in 2001 while hearing the case, the petitioner made representation for the information, but it was not furnished. It is submitted by the learned Counsel that the Government and the authority cannot be classified into two different classes for the purpose of informing the citizens and thus, Rule 13-A is arbitrary and violative of Article 14 of the Constitution. The right to information is a derivative fundamental right and the concept of precautionary principle while dealing with environment matters will come to naught if the proposal of change in land use is not made known to public through publication in the newspapers. It is further submitted that the official gazette is not available like newspapers and the local body which is the planning authority is burdened with publication in local newspapers but the Government which is neitiier the nodal agency nor the planning authority is empowered with rushing through the change in land use by virtue of 13-A and hence this is also under challenge. It is submitted by Mr. K.S. Murthy, the learned Counsel that G.O. 363 has to set-aside on the ground of lack of jurisdiction and as the purposes for which it has been issued has been given up. Any commercial activity in the vicinity of the lake would pollute the Urban Environment and there is no need for theatres or amusement parks coming up in the water body area. Concluding his argument, the learned Counsel would submit that the site mentioned in the G.O. is water body forming part and parcel of Hussain Sagar as per the judgment in WP No. 26378 of 2000 and no such commercial activity should be allowed to come up near the water body.
Andhra HC (Pre-Telangana) Cites 24 - Cited by 4 - S B Sinha - Full Document
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