Intellectuals
Forum, Tirupathi Vs. State of A.P. & Ors [2006] Insc 86 (23 February 2006)
Ruma
Pal & Dr. Ar. Lakshmanan
(Arising
out of S.L.P. (Civil) Nos. 7196-7197 OF 2001) Dr. AR. Lakshmanan, J.
Leave
granted.
The
present matter raises two kinds of questions. Firstly, at a jurisprudential
level, it falls on this court to lay down the law regarding the use of public
lands or natural resources, which have a direct link to the environment of a
particular area, by the Government. Secondly, this court should decide, on the
facts of the present case, the order to be passed with respect to two tanks in
the Tirupathi area Peruru, and Avilala.
The
above two appeals were filed by a registered society called, the Intellectuals
Forum, against the respondents herein. The contesting parties are the State of Andhra Pradesh represented by its Chief Secretary,
Tirupathi Urban Development Authority represented by its Vice-Chairman and the
A.P. Housing Board represented by its Vice- Chairman and Housing Commissioner.
The
present case relates to the preservation of and restoration of status quo ante
of two tanks, historical in nature being in existence since the time of
Srikrishnadevaraya, 1500 A.D. The tanks are called `Avilala Tank' and `Peruru
Tank' which are situated in suburbs of Tirupathi Town which is a world renowned
popular pilgrim centre having every day in-flow of tourists between one lakh to
two lakhs.
GRIEVANCE:
Systematic
destruction of percolation, irrigation and drinking water tanks in Tirupathi
Town, namely, Avilala and Peruru Tank and alienation of the Avilala Tank bed
land to Tirupathi Urban Development Authority (In short, TUDA) and A.P. Housing
Board under G.O. Ms. No. 84 Rev. dated 28.1.1994 and Peruru Tank bed land to
Tirumala Tirupathi Devasthanam (In short, TTD) for housing purposes under G.O.
Ms. No. 181 Rev. dated 15.3.1991, which are impugned in Writ Petition Nos. 8650
of 1994 and 7955 of 1994 respectively.
According
to the appellant, the cry of socially spirited citizens calling for judicial remedy
was not considered in the right perspective by the Division Bench of the High
Court of Andhra Pradesh despite there being over-whelming evidence of the tanks
being in existence and were being put to use not only for irrigation purpose
but also as lakes which were furthering percolation to improve the ground water
table, thus serving the needs of the people in and around these tanks. It was
submitted that the High Court has given precedence to the economic growth by
completely ignoring the importance and primacy attached to the protection of
environment and protection of valuable and most cherished fresh water
resources. The Government without considering the well planned development of
Tirupathi town alienated the Tank bed lands in favour of some governmental
agencies for valuable consideration. It was further submitted that since
Tirupathi is in the draught prone region called Rayala Seema, there is always
shortage of water and the District machinery is constantly put on alert for
devising schemes for the purpose of improving the existing water resources.
An
Engineering Team which is assigned such a task had visited in and around the
foot- hills of Tirupathi and Tirumala for the purpose of identifying sources of
fresh water and suggestions to be given for their improvement. Apart from
suggestions, the team of Engineers, in the minutes of the meeting held on
26.5.1990, suggested that improvement of feeder channels (Vagus) for Peruru
tank and Avilala tank would improve the percolation of all the surrounding
areas and that there is enough potential for the tanks to get enough water if
the feeder channels are improved. It was also submitted by representation that
the Commissioner of Land Revenue to retain Peruru tank and Avilala tank, since
retention of water in the said tanks would improve the water table which is
already very low in the surrounding wells and also to the east of the tanks
before of gradients. In the meantime, the Government passed G.O.Ms. No. 181 Revenue
dated 15.3.1991 alienating an extent of 150 acres of land which belongs to the
tank bed area of Peruru tank to Tirumala Tirupathi Devasthanam (In short, TTD).
The
members of the appellant's forum as also the various other socially spirited
citizens have written letters to various authorities of the Government
requesting the said authorities including the Chief Minister not to alienate
the tank bed areas of both the tanks for housing or for any other activity
except for the purpose for which it is meant.
However,
the Government issued G.O. Ms. No. 84 Revenue dated 28.1.1994 authorizing the
District Collector, Chittoor to alienate 90 acres of land belonging to Avilala
tank bed area to A.P. Housing Board. This Government order further directed
that the TUDA should provide a Master plan for the entire area of 170 acres so
as to ensure integrated development of Avilala tank area.
Since,
there was no response to the representations made, the appellant filed two writ
petitions in the High Court challenging the Government Orders passed by the Government
of Andhra Pradesh by which the District Collector, Chittoor was directed to
hand over the tank bed areas of Avilala tank and Peruru tank to TTD and to A.P.
Housing Board.
Writ
Petition No. 7955 of 1994 was filed assailing G.O. Ms. No. 181 dated 15.3.1991,
in respect of alienation of Peruru tank bed land to TTD and Writ Petition No.
8650 of 1994 was filed assailing G.O. Ms. No. 84 dated 28.1.1994 alienating
Avilala tank bed area land to A.P. Housing Board. The respondents filed their
counter affidavits opposing the writ petitions. The Indian Medical Association
also made a similar plea that the Government should immediately withdraw its
G.Os. alienating Avilala tank and Peruru tank and restore them urgently as
percolation tanks, to improve the ground water table. This prayer was made by
the Indian Medical Association due to alarming increase of the toxic contents
like Fluorides and other salts in the underground water due to steep fall in
the underground water table level. A feasibility report on Peruru tank was
prepared by Sri Venkateswara University College of Engineering, Department of
Civil Engineering, Tirupathi. Several other individuals filed affidavits
supporting the cause of the appellant.
A
counter affidavit was filed by the Government, Revenue Department, in Writ
Petition No. 8650 of 1994 whereby the said respondent justified the issuance of
G.O. Ms. No. 84-Revenue Dept. dated 28.1.1994 stating that the same was in
public interest.
A
counter affidavit was also filed by respondent No.3, the Law Officer of the
Housing Board stating that the Housing Board has invested Rs.88.43 lakhs
towards development of land and thus the Board has invested in all a sum of Rs.
1,78,43,000/- and prayed for dismissal of the writ petition. An additional
counter affidavit was also filed by respondent No.3 stating that the area is
fully developed. Likewise, Shri P. Krishnaiah, the Executive Officer of the TTD
filed affidavit stating that a number of dwelling have come up in the entire
area and the prayer in the writ petition could not be granted and prayed for
dismissal of the writ petition.
By the
impugned and common judgment dated 28.9.2000, the Division Bench of the High
Court finding no illegality or irregularity in the action of the respondents
dismissed both the writ petitions. Aggrieved by the dismissal of the writ
petitions, the appellant has filed these appeals by way of special leave
petitions.
We
heard Mr. G. Ramakrishna Prasad, learned counsel appearing for the
appellant-Forum, Mr. V.R. Reddy, learned senior counsel appearing for the TTD,
Mr. P.P. Rao, learned senior counsel Mr. Jaideep Gupta, Mr. D. Ramakrishna
Reddy, Mr. P. S. Narasimha, learned counsel and Mr. Anoop G. Chaudhary, learned
senior counsel for the respective parties.
Elaborate
arguments were advanced by the respective counsel appearing for the parties to
this action. We have been taken through the entire pleadings, documents and
annexures filed along with the appeals and also the report submitted by the
Expert Committee and the objections filed by the parties to the said report.
Mr. G. Ramakrishna Prasad, learned counsel appearing for the appellant made the
following submissions:
-
The High Court
has failed to appreciate that in the light of over-whelming evidence with
regard to the Tank beds being put in use for irrigation, drinking purpose, and
being used as percolation tanks to improve the groundwater table and quality of
underground water in the neighbouring areas and many villages including
Tirupathi town, the High Court committed error in holding that the water tanks
in issue are now non- existent.
-
The High Court
committed an error in coming to the conclusion that the urban development could
be given primacy over and above the need to protect the environment and
valuable fresh water resources.
-
The High Court
is not correct in holding that if the Government is not permitted to use the
lands in question properly it will ultimately go into the hands of land
grabbers and anti-social elements and they will be converted into slums and
that such lands will be used as dumping grounds.
-
The High Court
has failed to notice the fact that the need for sustainable development cannot
be ignored, could not do away with and could not cause harm to the environment
in the name of urban development and that certain acts of omissions and
commissions on the part of the respondents in not taking proper measures for
the preservation of the Peruru tank, the flow of water into the tank is reduced
every year as most of its feeder channels are either spoiled or closed by
unauthorised encroachers.
-
The respondents
have failed to take necessary measures to remove the encroachments and repair
the feeder channels and as a result, the natural flow of water into the tank
during the rainy season is reduced. On account of reduction in the water
catchment area due to encroachments, the quantity of water collected in the
tank is getting drastically depleted year by year and that the water table in
the neighbouring area of the tank including a colony is going down and even the
ground water available is becoming more and more saline with high fluoride
content every year and becoming unfit for drinking purposes.
-
It was submitted
that the respondents are under constitutional obligation to protect the
environment. The tanks in question is a public property in which each and every
ayacutdar has got a property right and this right cannot be taken away by the
Government to their detriment and that the communal property cannot be diverted
for the purpose of construction of houses to section of people.
Mr.
V.R. Reddy, learned senior counsel, appearing for TTD submitted that TTD gave
its own land to Sri Padmavathi Mahila Viswavidyalayam and in lieu of the land
so given by it, the State Government under G.O. Ms. No. 181 Revenue dated 15.3.1991
has given Ac.150 m Perur tank to TTD. TTD took possession of the said land on
19.3.1993. In 1984 itself, the tank bed became barren and there is no water
supply to the tank. The agricultural lands which were dependent on the tank
water which was used only for agricultural purposes, therefore, became housing
colonies. There is no source of water now to the tank and it is not possible to
store water in the tank. Tirupathi is a growing town whose population is going
up constantly demanding more and more house sites and housing accommodation for
the growing town population. The pilgrim inflow is also steadily growing
requiring more facilities. An agricultural tank which has become dry by 1984
itself and which is no longer capable of being used for agricultural irrigation
purposes as it gets no water any more being surrounded by the expanding town,
roads and built up areas cannot anymore be maintained as a tank in its original
form. There are other tanks and dams and water supply schemes being undertaken
in Tirupathi having regard to their feasibility. The High Court has considered
these aspects also, he submitted. TTD is one of the well known Devasthanams in
the country which is undertaking projects of general public welfare consistent
with its policy. It is doing everything possible in Tirupathi and in Tirumala
where the World famous Sri
Venkateswara Swami Temple is situated, to preserve and
improve the natural environment. The tank in question i.e. Peruru tank cannot
be maintained as a tank in the present situation and it has ceased to be a tank
long ago except in name. It has been obtained by it in lieu of its own land it
has given for a public purpose of a women's university and requires it for its
own optimum use. The objection sought to be taken by the appellant as a public
interest objection is without any merit or substance as far as Peruru tank is
concerned on the facts and circumstances of the case.
Mr.
P.S. Narasimha, learned counsel appearing for A.P. Housing Board, submitted
that S.No. 18/1 of Avilala village is on the outskirts of Tirupathi town
measuring about 187 acres was classified as Avilala tank Poramboke. The said
tank was abandoned as far back as in the year 1992. The Tank area was bulldozed
and the entire land was levelled. The cultivation particulars of the Ayacut in
this tank reveals that no lands were being irrigated from the water derived
from this tank right from the year 1395 F i.e. the year 1984 A.D. The feeder
source for Avilala tank namely
-
Ramayapalli
Kasarkaluwa
-
Kasarkaluwa of
Vedantpuram Agraharam and
-
drainage water
of Timlagunta wet fields
-
Nadinvaka all
these sources got defaced and there has been no scope for accumulation of water
in the tank. It was also observed that even after sinking that well to a depth
of about 60 feet, the land was not receiving any water from any ground
resources after construction of Kalyani Reservoir.
Therefore,
proposal for abandonment of tank was submitted by the Revenue Divisional
Officer, Tirupathi to the District Collector in the years 1988 and 1992.
Thereafter, public notices were issued inviting objections but no objections
were filed by anyone.
Thereafter
a technical opinion was given by the Executive Engineer of the Irrigation
Department in favour of the alienation of the said land to an extent of 98
acres. Even the Gram Panchayat had passed resolution on 14.8.1988 proposing to
alienate 98 acres in S.No. 18/3 carved out S.No. 18/1 of Avilala Village in favour of A.P. Housing Board.
The
Government have issued orders in G.O. Ms. No. 691 dated 18.7.1989 alienating 98
acres of land for the purpose of constructions of house under the rental
housing scheme for the Government employees. The said land has been levelled in
the year 1992 after taking possession. The Housing Board has undertaken infrastructural
facilities by laying of B.T. Roads, electrical lines, digging bore wells apart
from levelling and plotting the land and a sub-station 33 K.V. capacity has
been established by the A.P. Electricity Board. It was submitted that the A.P.
Housing Board paid Rs. 90 lakhs towards the cost of the land @ Rs.1 lakh for
each acre to the Government and also spent a sum of Rs. 88.43 lakhs towards
development of the land so far. Thus, in all A.P. Housing Board has invested a
sum of Rs.1,78,43,000/- and the further development was stopped in view of the
pendency of the writ petition.
The
A.P. Dairy Development Corporation has established Balaji Dairy in a portion of
the land under reference by spending over Rs.8 crores. All these amounts were
spent by the Government from its own expenditure from out of public funds.
Apart from the above, the Land Acquisition proceedings were initiated for
laying of approach road and compensation thereafter has been paid by the
Revenue Department.
Mr.
P.S. Narasimha further submitted that the laudable objective of maintenance of
ecology, environment and preservation of water resources are subject to the
vagaries of nature and in the realm of technical matter, there cannot be
judicially manageable standard for granting any relief.
Arguing
further, he submitted that there are many factors and reasons attributing to
depletion of ground water table due to the expanding urbanization and
increasing the non-agricultural activities. All such activities have not the
sanction of the law supported by legislative mandate under the A.P. Urban Areas
Development Act. The administration has been entrusted with the responsibility
of ensuring equitable urban growth by balancing ecological and environmental
interest and in the instant case, the administration has taken all the
proceedings and attending precautions to act in larger public interest in
general for which the appellant cannot have any grievance.
Mr.
Jaideep Gupta, learned senior counsel, appearing for TUDA filed a detailed
reply to the appeal. He invited our attention to the elaborate and detailed
reply affidavit filed by them. It is seen from the affidavit that the proposals
for abandonment of the erstwhile tank were submitted by the Revenue Divisional
Officer, Tirupathi with reference to the Collector's letter No. B-1/7089/88
dated 17.9.1988. A notice for public response to the said proposal was
published in the village but no objections were received. As the land was in
the past classified as a tank poramboke, technical opinion had already been
obtained and the Irrigation Department opined that there was no objection for
alienation of the said land. As per the report of the Revenue Divisional
Officer, Tirupathi submitted in his letter No. Roc. No. G/2016/88, dated
6.9.1988 that the Avilala Gram Panchayat in its resolution dated 14.8.1988 had
resolved to alienate an extent of 90.00 acres in Sy. No. 18/3 (carved out from
18/1) of Avilala village in favour of A.P. Housing Board.
In the
above circumstances, the Government have alienated 90 acres of land in Sy. No.
18/3 carved out from Sy. No. 18/1 in favour of A.P. Housing Board for
construction of houses under rental housing scheme for Government employees
vide G.O. Ms. No. 691 dated 10.7.1989 of the Revenue (Assn. IV) Department. The
District Collector, Chittoor in his letter No. B1/15246/90 dated 14.7.1992
addressed to the Secretary to the Government, Revenue Department has informed
that the Ayacutdars have also given their consent for abandonment of the
erstwhile tank and to treat the Ayacut as dry land since the tank does not have
any water source.
After
the Government have alienated an extent of 90 acres of land to A.P. Housing
Board and 1.12 acres to A.P.S.E.B. and 5 acres towards compensation for private
lands acquired for approach road, there remains a balance of 96 acres of land.
Accordingly
the Revenue Divisional Officer, Tirupathi in his letter G/5234/92 dated
16.9.1992 addressed the District Collector that the balance land available can
be better utilized by handing it over to various agencies for developmental
purposes, because of its proximity to Tirupathi town and adjoining residential
colonies like Vaikuntapuram, Bairagipatteda etc. There has been a substantial
growth in population of Tirupathi town coupled with physical expansion of the
town and consequent conversion of agricultural lands into pucca residential
area and layouts. The population of Tirupathi is growing day by day and to
cater to the growing demand for housing this authority had requested the
Government for alienation of 90 acres of land for sites and services
programmes.
Accordingly,
the Government in G.O. Ms. No. 84 Revenue (Assn.IV) Department, dated
28.1.1994 alienated 90 acres of land in Sy. No. 17/1 of Avilala in favour of
this authority. Based on the Government Orders and proceedings of the District
Collector, Chittoor in D.O. Toc. No. B/1/15246/92 dated 3.3.1994, the Mandal
Revenue Officer, Tirupathi Rural Mandal has handed over the possession of 65.19
acres of land on 18.4.1994 to this authority.
Mr.
Gupta further submitted that the Urban Development Authorities are bound to
regulate the massive urban growth and migration of people with appropriate
development plans to prevent formation of slums and consequent urban decay.
Accordingly,
the TUDA has taken up development of new Satellite townships around Tirupathi
to relieve congestion of the existing township and one such satellite town is
Rajiv Nagar being developed in the land many years back was under the then
existing Avilala tank in Sy. No. 18/1.
As it
is evident from the joint inspection of the Joint Collector, Chittoor,
Superintending Engineer, Irrigation, Chittoor, etc. on dated 4.4.1992, there
has been no source of the supply channel for maintenance of the Avilala tank
and it has not been practicable either to restore it as irrigation tank or even
as a percolation tank any longer.
However,
as a part of the development of a satellite township, it is proposed to provide
lung spaces, water harvesting structures in an extent of 18 acres of land benefiting
the people in Sy. No. 18/1 of Avilala village and Rajiv Nagar area by TUDA and
A.P. Housing Board.
After
obtaining approval from the State Government, TUDA announced the scheme to the
public on 18.3.2001, 26.3.2001 and 30.3.2001 by giving wide publicity in the
newspaper and inviting applications for participating in the auction. The plots
were allotted to the public in a public auction as per the orders of the
Government vide G.O. Ms. No. 84 Revenue (Assn.IV) Deptt. Dated 28.1.1994. The
auction was conducted on 13th, 14th and 15th April, 2001 and plots were
allotted to the successful bidders immediately i.e. before the issue of status
quo order of this Court. TUDA has already taken up plans of action to provide
in the new township partly with the amounts received from open auction: It is
also seen from the reply affidavit filed by TUDA that a comprehensive scheme
name "HARITA" has been jointly promoted by Forest Department, TTD and
TUDA at a cost of Rs.24.83 crores to be implemented in five years from 2000 to
2005.
The
scheme had already commenced and massive plantation programme was taken up by
planting 16 lakhs trees during the year 2000-2001 apart from other schemes that
have been envisaged in the plan.
The
National Remote Sensing Agency, Department of Space, Government of India in
their report titled "Land use Land cover monitoring in TUDA area with
special reference to Avilala tank and environs Tirupathi, Andhra Pradesh"
has conducted detailed study with the help of satellite imageries on Avilala
tank over a period of time.
In its
report, it is stated that the tank in earlier days i.e. earlier to 1970 was
drained mostly by natural springs located in the head of the region of the
catchment. Over a period of time, the spring got dried up due to various
geological factors with no source of surface flow. Also the small streams which
were draining to the tank were disturbed and occupied, with the result the tank
remained dry with part of it covered with scrub since 1976 onwards.
It is
also stated in the report that as per the satellite image of February, 2001
there are about 232 tanks identified in TUDA area. Most of the tanks are
located along the foot hills of Tirumala hills and plains of Swarnamukhi river.
Kalyani reservoir is the major one in the area. Considering the location as
well as distribution about 20 tanks are identified for conservation and future
development to meet the urban water requirement. However, other existing tanks
may also be fenced and preserved to meet the future requirement.
The
TUDA along with the support of other Government Departments have been making
conscious efforts for conserving and preserving potential tanks in TUDA region
as per the recommendations of National Remote Sensing Agency and other experts
in the field. In this direction, the TUDA has already initiated action in
developing Tiruchanoor tank in Sy. No. 253 of Tiruchanoor at a cost of Rs.30
lakhs under Phase I Scheme which includes desilting, strengthening of bunds,
landscaping of bunds and tree plantation. However, there is no possibility at
all of restoring the abandoned Avilala tank as per the scientific data
available with TUDA which can be at best developed as a satellite township with
all facilities thus contributing to the planned urban growth of Tirupathi and
decongesting the main township.
Mr.
Anoop G. Chaudhary, learned senior counsel appearing for the State of Andhra
Pradesh drew our attention to the detailed counter affidavit filed by the State
of A.P. through its Joint Secretary to the Government Revenue Department
wherein the Government has explained to this Court as to how the impugned
G.O.'s alienating the lands in favour of TTD, TUDA and Andhra Pradesh Housing
Board for public purposes were issued. According to Mr. Anoop Chaudhary, there
is nothing illegal in issuing in G.Os. It is not violating anybody's
fundamental rights. An extent of 180 acres of land was tank bed land of Avilala tank.
This tank was an abandoned tank ever since 1984 as the channel source of this
tank was closed due to construction of Kalyani dam and because of lack of water
this tank was no longer used for storage of water. As it was an abandoned tank
and was no longer in existence and the land became plain and considering the
matter and report of the District Collector, the Government issued orders in
G.O. Ms. No. 691 Revenue Department dated 10.7.1989 for alienating an extent
of 90 acres of land to A.P. Housing Board for the purpose of rental Housing
scheme for Government employees on payment of Rs. 1 lakh per acre by the
Housing Board and before this land was alienated a notice was published in the
village calling for objections by the Revenue authorities and no objections
were received in pursuance of the said notice. The Ayacutdars have also
consented for the alienation of the land.
Thereafter,
after obtaining the opinion of the concerned Executive Engineer of the
Irrigation Department and the report of the District Collector, the above
Government Order was issued.
Concluding
his arguments, he submitted that there is ample material on record showing that
these tanks were abandoned long back and they were no longer serving as water
storage tanks more particularly, as their supply channels have been dried up.
On 5.12.2003, this Court passed the following order:
"The
Secretary, Ministry of Water Resources, Government of India is directed to
constitute a committee of experts for the purpose of submitting a report on the
question whether the two tanks, namely, the Peruru and Avilala or either of
them can be utilized for water harvesting. The report shall be submitted to
this Court within a period of six weeks from the date of the communication of
this order. The Registry is directed to forward a set of the documents, which
have been filed before this Court to the Secretary for being placed before and
considered by such Committee. The committee will hold local inspection. Before
it does so it shall give notice to the concerned advocate-on-record. The State respondent
will provide such documents as may be required by the Committee for the purpose
of submitting the report.
List
the matter thereafter." The Government of India constituted a Committee
for the purpose of submitting its report to this Court :
The
term of reference of the Committee was to submit a report on the question
whether the two tanks namely, the Peruru and Avilala or either of them can be
utilized for water harvesting. Pursuant to this, the Committee visited
Tirupathi on 19th and 20th
January, 2004 for
local inspection and necessary investigations. During the visit, a detailed
discussion was held with the representatives of TUDA, TTD and members of the
Intellectual Forum.
The
Committee submitted its detailed inspection report on 21.1.2004. The appellants
submitted its objections to the report of the Committee and the respondents
supported the inspection report.
In the
above background, the following questions of law arise for consideration by
this Court:-
-
Whether the
Urban Development could be given primacy over and above the need to protect the
environment and valuable fresh water resources?
-
Whether the
action of the A.P. state in issuing the impugned G.Os could be permitted in
derogation of Articles 14 and 21 of the Constitution of India as also the
Directive Principles of State Policy and fundamental duties enshrined in the
Constitution of India?
-
Whether the need
for sustainable development can be ignored, do away with and cause harm to the
environment in the name of urban development?
-
Whether there
are any competing public interests and if so how the conflict is to be
adjudicated/reconciled? We have already referred to the directions issued to
the Government of India to constitute a Committee of Experts for the purpose of
submitting a report on the question whether the two tanks namely, the Peruru and
Avilala or either of them can be utilised for water harvesting. The Expert
Committee took into account the factors that had led to the depletion of influx
of water to Peruru Tank in the report and observed in paragraphs 3 & 4 of
the Report.
According
to the learned counsel appearing for the TTD, Peruru tank as a water body had
three main sources of influx of water which were as follows:
-
Overflow of
water through feeder channel from the combined Kalyani River Swarnamukhi river
The Kalyani river joins Swarnmukhi river near Agasteeswara Temple. At that point, the overflow of
water in the combined rivers as going to peruru tank through a feeder channel
of about 1.6 Km. Length. After the construction of the Kalyani Dam on Kalyani River in the year 1974, the flow of water from Kalyani river into
Swarnamukhi river considerably reduced. As a result, there was no overflow of
water going to the feeder channel, which over the years has become defunct due
to its bed level being at a higher level than the riverbed. Since the feeder
channel has become defunct and abandoned, a road has been constructed for the
temple by filling up the channel.
The
Expert Committee, after observing the above, in paragraph 3 of its report under
Peruru tank has opined as follows:
"The
revival of old feeder channel which involves deepening of the existing channel
and restoring the channel in the initial reaches is not considered cost
effective in view of the meagre quantity of river water availability for a very
short period."
-
Catchment area
of 42.9 sq.Kms. TTD under "Neeru Meeru" programme, constructed 22
check dams, 9 percolation tanks, 437 rock fill dams and contour trench on a
length of 1.22 km for improving the water table and water conservation and
efficient use of rain water without wastage in the catchment area falling under S.V.
Zoological Park.
The
Expert Committee, after observing the above in para 4 of its report has stated
that the inflow of water into Peruru tank has been reduced considerably due to
the construction of check dams etc. While it is so, it is also to be noted in
this context, that on account of Kalyani Dam a water body has come into
existence in the form of Reservoir is spread over an area of 31065 acres and
holds 910 mc. Ft. Water when filled to capacity. Similarly, Dalavai Tank, which is
created in the Catchment area, is also a water body occupying 66.70 acres and
holds 15.79 mc. Ft. of water when full.
It is
pertinent to submit in this context that under the "Neeru Meeru"
programme vigorously pursued by the Government in the entire State,
construction of such check dams, percolation tanks etc. was conceived and
executed for improving the water table and water conservation and efficient use
of rain water without wastage at considerable cost.
-
Nakkala vanka
and Bodeddulu Vanka : prior to the construction of Dalavai tank in the
catchment area, water used to flow downstream to peruru tank through
Nakkalavanka and Bnodeddula Vanka. After the construction of Dalavai Tank, the
flow of water through Nakkalavanka and Bnodeddula Vanka has considerably
reduced.
The
Expert Committee after observing the above facts in paragraphs 4 & 5 of its
report opined that the flow of water through Bodeddulla Vanka to the Peruru
tank can be restored by removing a small check dam at Malapalli which it is
submitted might be considered a retrograde step affecting other projects for
water conservation. Learned counsel further submitted that in view of the
aforesaid recommendation of the Expert Committee that instead of 20 acres as
presently assigned a minimum of 50 acres may be utilised for a water body in
the tank area may not be a practicable proposal.
However,
the TTD would willingly and earnestly endeavour to implement the proposal if
this Court accepts and approves the Report of the Expert Committee. In our
opinion, the Expert Committee's report should be accepted by TTD. Learned
counsel appearing for the TTD at the time of argument, has also brought to our
notice some of the programmes launched by TTD for sustainable improvement of the
living environment.
Mr.
P.S. Narasimha, learned counsel, submitted that no competing or conflicting
public interests arise in this case inasmuch as the very subject of the
environment issue has ceased to be a resource as it were.
The
enquiry is, therefore, upon the very basic question i.e. whether there exist at
all a natural resource. The research is empirical and not adjudication or
prioritisation of conflicting public interest. A further question can also be
raised i.e. even if the said resource has deteriorated, is it possible to
revive its resource. The adjudication in both the appeals is confined to an
empirical enquiry based on scientific data. The enquiry as indicated above has
already been done in this case. It is in two stages.
STAGE
ONE Till the judgment of the High Court of Andhra Pradesh, which dismissed the
writ petitions.
STAGE
TWO Enquiry at the instance of this Court pending disposal of the special
leave petitions.
STAGE
ONE - Our attention was drawn to the counter affidavit dated 7.9.1994 of TUDA
in W.P.No. 8650 of 1994 which reads as under:
"The
tank in question as could be seen from the permanent `A' Register
(Re-settlement Registrar) was to be fed by
-
Ramayapalli
Kasam Kalva
-
Kasam Kalva of
Vedan thapuram Agraharam
-
Drainage water
of Thummalapetta wet fields and
-
by Nadim Kalva
which are almost defaced and as such there is no scope for accumulation of
water in the tank. It is also observed from a well about 60 feet depth located
on South-West corner of the land that no water exists in the well. The
foreshore of the tank is almost plain. It is an abandoned tank and the tank is
also not receiving any supply of water due to closure of supply channels after
the construction of Kalyani Dam Reservoir. " STAGE TWO The Inspection report
of the Committee constituted under the directions of this Court considered
various issues. It is stated in the report as follows:
-
There is no tank existing in the
area at present. Remains of the original demolished bund were seen. The area
upstream was plain with no indications of any water storage.
-
reported feeder channels to the tank
are in fact localized drainage lines which do not have any direct source of
surface water from the nearby Tirumala hills. The tank might have receive water
as over flow from Peruru tank located on west of Avilala tank.
As per
the Respondents contention, the Tank in dispute has been shown in Resettlement
Register `A'. For the purpose of change of classification from tank poramboke
to ayan, `A' notice was published in the Avilala Village displaying the said
notices at the conspicuous places which is statutory and no objections were
received and as stated already, consent letters were given by the individual
ayacutdars for the abandonment of the tank.
Proposals
for abandonment of the erstwhile tank were submitted by the Revenue Divisional
Officer, Tirupathi with reference to the Collector's letter No. B- 1/7089/88
dated 17.9.1988. A notice for public response to the said proposal was
published in the village but no objections were received. As the land was in
the past classified as a tank poramboke, technical opinion had already been
obtained and the Irrigation Department opined that there was no objection for
alienation of the said land. The opinion is in Collectorate reference No.
B-1/14157/85. As per the report of the Revenue Divisional Officer, Tirupathi
submitted in his letter No. Roc. No. G/2016/88 dated 6.9.1988 that the Avilala
Gram Panchayat in its Resolution dated 14.8.1988 had resolved to alienate an
extent of 90 acres in Sy. No. 18/3 of Avilala village in favour of Andhra
Pradesh Housing Board. The materials placed before us and the report of the
Expert Committee and the stand taken by the public bodies and the rapid change
in the demographic feature of the Tirupathi town and its surrounding suburbs
have necessitated the process of urbanization.
The
TUDA in its additional counter affidavit filed on 21.2.2002 stated that the
Tirupathi urban agglomeration as notified consists of 849 sq. Kms. with one
Municipality and 89 villages. The total population of TUDA area is 4,88,248
according to 2001 census and the projected population by 2021 is 9,60,000. 49%
of the urban agglomeration is covered by Tirumala hills and forest area and the
remaining area is going to be developed into a Metropolis over the next 20
years, according to the present decadal population growth of 32% for TUDA
region, compared to 13% of A.P. population growth rate as per 2001 census. The
growth of population of Tirupathi Municipal area was highest during the decades
of 1971 (83.68%) and in 1981 (75.10%) but now stabilized at nearly 30% (2001).
But in respect of the suburbs surroundings Tirupathi, which are fast growing
recording very high population growth rates, are an indication that TUDA area
is one of the very fast developing urban agglomerations in the country.
Akkarampale
(v) one of the suburbs with a population of 20,325 recorded 250% of decadal
growth between 1991-2001. Similarly Avilala (v) another suburb of Tirupathi,
where "Rajivnagar", the land in question in the present appeals, is
situated, the decadal growth rate between 1991 and 2001 was above 150%. The
population of Avilala (v) which was 1141 in 1971, has grown to 12,058 by the
year 2001, while converting most of the agricultural lands into residential
plots. According to the report of NRSA, Hyderabad in July 2001 on "Land
Use-Land Cover Monitoring in TUDA area with special reference to Avilala Tank
and Environs, Tirupathi, A.P." the Avilala (v) along with the tank area
which has a total extent of 942.47 hectares of which residential area was 32.91
hectares in 1976-77 has now increased to 349.28 hectares in the year 2001,
which also includes institutional and industrial areas. In respect of
agricultural lands, which was 677.78 hectares in 1976-77 has been diminished
into 204.22 hectares in 2001. The high population growth rates of Avilala (v)
combined with increase in the residential area (961%) is a clear indication
that the original purpose of Avilala tank as irrigation tank, is no more relevant
in the present scenario of fast urban development in this area.
It has
been further stated in the additional affidavit filed by TUDA on 21.2.2002 that
the TUDA has taken up revision of its master plan with digitisation of land use
along with a comprehensive development plan of the urban agglomeration up to
2021, with public participation. According to the said Master plan prepared by
TUDA in 1981, the said lands of Avilala (v) are earmarked under residential
zone and development of satellite township to ease the congestion on the main
city and the purpose of retaining irrigation tank in an extent of 150 acres at
Avilala near Tirupathi is no longer useful to the public under the
circumstances explained.
In the
counter affidavit filed by A.P. Housing Board on 26.6.2000, it is submitted
that the A.P. Housing Board paid Rs.90 lakhs towards the cost of the land @
Rs.1 lakh for each acre to the Government and also spent a sum of Rs. 88.43
lakhs towards development of the land so far. Thus, in all APHB has invested a
sum of Rs.1,78,43,000/- and the further development was stopped in view of the
pendency of the writ petition.
The
area around the property in question is fully developed. There is a weaver's
colony, PR Engineers Colony, Judicial Employees Plots and Colony and Balai
Dairy (in 10 acres of land APDDCF). Thus, the area around the land in question
is already developed and several colonies have come up and in any event the
land cannot be used as reservoir.
As per
the notification, APHB has proposed about 342 HIG design, 497 MIG-2 design and
283 MIG-1 design houses with the details mentioned therein totalling about 1126
houses in the said proposed colony. The details of number of houses to be
allotted under different categories and modes like outright sale, allotment on
payment of 50%, 30% amount etc., are also mentioned in the said notification.
It also provided reservation for various categories like 5% of houses to
Legislators, 5% to defence people, 14% for SC, 4% for ST, 9% for OBC, 10% for
retired Government employees, 1% for physically handicapped, 1% for freedom
fighters and 51% for other categories.
The
applicants under the above-referred notifications are the persons having no
plot or no house for their residence in Tirupathi or nearby places and as such
they are in dire need of a place of residence which is sought to be fulfilled
under the above scheme by the APHB.
It is
also seen from the additional counter affidavit dated 21.2.2002 filed by TUDA
that they have taken up revision of its Master plan with digitisation of land
use along with a comprehensive development plan of the urban agglomeration up
to 2021, with public participation. According to the Master plan prepared by
TUDA in 1981, the said lands of Avilala (v) are earmarked under residential
zone and development of satellite township to ease the congestion on the main
city.
It was
also submitted that subsequent to the filing of the present appeals,
substantial developments have taken place which can be summed up here. As
stated in the counter affidavit filed by TUDA on dt. 29.11.2001, after the
dismissal of Writ Petition No.8650 of 1994 by the High Court on dated
28.9.2000, TUDA submitted the entire scheme of sites and services to be taken
up at Rajiv Nagar at a cost of Rs.600 lakhs to the State Government for
approval vide its letter No.2148/G1/99 dated 3.12.1999. The State Government
vide G.. Rt. No. 124 M.A. dated 15.2.2001 had approved the proposal of TUDA.
Mr.
Jaideep Gupta, learned senior counsel appearing for the TUDA, has placed before
us a report on Land Use Land Cover Monitoring in TUDA area with special
reference to Avilala Tank and Environs Tirupathi. The main objective of this
study was:
-
To map and estimate the water bodies
and drainage pattern within the TUDA limits and to suggest the water
conservation plan, on a scale of 1:50,000 using satellite and other collateral
data.
-
To monitor the changes in and around
the Avilala Tank over a period from 1976- 2001 and carry out the change
analysis.
The
report contains all meticulous details about the study area, data base,
advantages and limitations of satellite data, methodology, analysis and
observations, water resources analysis of TUDA area, land use/land cover
analysis of Avilala tank and its environs. The report has been prepared in a
meticulous manner with reference to various plans. Another report was also
submitted with regard to the Revitalisation of Lakes in TUDA Region which also
contains many details about the land use of TUDA Region and the conservation
and preservation of water bodies and the identification of potential tanks for
conservation and the salient proposals for revitalisation of identified tanks.
The Salient proposals for revitalisation of tanks are as under:
On
realizing the importance of restoration of tank basins towards conservation of
water and recharging of ground water, increase the storage capacity of tanks,
renovating the tank bunds as well as feeder channels, TUDA has taken over 30
tanks in its operational area for taking up the improvements. Proposals include
removal or eviction of encroachments, desilting of tank basins, clearing of
jungle, strengthening of tank bunds, excavation of boundary trenches, widening
and excavation of feeder channels, construction of boundary pillars and
compound walls along the tank boundary. Block plantation, programmes for
development as landscaped parks and water based entertainment units for the
benefit of the public in off shore areas of the tanks have been proposed
wherever feasible and viable.
Towards
protection of environment, provision for treatment system is also made in the
project to take care of entry of drainage/sullage into the tank storages. Block
plantation on all on-shore areas of tank have been taken up as a part of Neeru
Meeru programme to prevent erosion of soils and entry of encroachments which
will have long term positive environment results.
As per
the estimates prepared, the total cost of the scheme works out to Rs.993.64
lakhs for taking up the above programmes in 32 tanks spread over 32 settlements
around Tirupathi town and in TUDA region. The abstract statement showing the
details of tanks proposed for revitalization and the cost of development is
given below:
(Rs.
In lakhs) S.N o. Mandal No. of tanks Cost of development Cost of
greening/landscaping Programme Total
-
Tirupati(U)
Mandal 10 387.84 82.50 470.34
-
Tirupati(R)Mandal
10 203.10 64.90 268.00
-
Reningunta
Mandal 9 129.50 47.60 177.10
-
Chandragir
Mandal 3 71.70 6.50 78.20 Total 32 792.14 201.50 993.64
As
already noticed, the Expert Committee in its Inspection Report, has gone into
various technical details about the cause for gradual reduction of inflow of
water to the Peruru tank, which is a rain-fed tank, over the last 50 years. The
Committee has observed in its report that the reduction in the inflow of water
to the tank was due to the construction of 22 check dams, 8 percolation tanks,
437 rock fill dams and contour trench on a length of 1.22 km for water
conservation and efficient use of rain water without wastage. The Committee has
also observed in its Report that the main supply channel to the Peruru tank was
affected due to the revival of Dalavai Tank situated at a distance of about 2
Kms upstream in the catchment area.
The
Expert Committee in its report has suggested some additional measures for rain
water harvesting by providing for a percolation tank in an area of 50 acres
instead of 20 acres already earmarked for the said purpose by the Revenue
authorities with roof top rain water harvesting and artificial recharge The
Expert Committee has gone into various technical and cost aspects about the
feasibility of reviving the Peruru tank. Only after the Committee found that
the tank could not be revived in its original form, it suggested in its report
for construction of percolation tank and roof top rain water harvesting and
artificial recharge for increasing the ground water level.
A
careful perusal of the report would clearly reveal that the Committee has given
its suggestions only after taking into account various possibilities in recharging
the ground water level. It is not proper in doubting the correctness of the
Committee's report as contended by the appellants. The Committee, in our view,
has gone into the details about the revival of the feeder channel to the Peruru
tank from Swarnamukhi river and having regard to the impracticability of
restoring the same as feeder channel had suggested an alternative which in
their view, is feasible and beneficial.
It is
evident from the report of the Expert Committee that the Members of the Expert
Committee have taken technical aspects as contained therein and the objections
of the appellant in this regard are untenable. The Government of Andhra Pradesh
has also taken various steps pursuant to the directions given by this Court
which could be seen from the additional affidavit dated 25.3.2005 filed by the
State of Andhra Pradesh.
We
have given our thoughtful and careful consideration to the sensitive issues
raised in the appeals by the appellants and countered by the respective
respondents with reference to the pleadings, the documents, annexures filed and
judgment of the High Court. We have also carefully perused the report submitted
by the Expert Committee and also considered the rival submissions made by the
respective counsel.
In our
opinion, the nature of the question in this case is twofold. Firstly, the
jurisprudential issues. In the event of conflict between the competing
interests of protecting the environment and social development, this Court in
the case of M.C. Mehta v. Kamal Nath, 1997(1) SCC 388, in paragraph 35 held as
under:
"The
issues presented in this case illustrate the classic struggle between those
members of the public who would preserve our rivers, forests, parks and open
lands in their pristine purity and those charged with administrative
responsibility, who under the pressures of the changing needs of an
increasingly complex society find it necessary to encroach to some extent upon
open lands heretofore considered inviolate to change. The resolution of this
conflict in any given case is for the legislature and not for the Courts. If
there is a law made by Parliament or the State Legislatures, the Courts can
serve as an instrument for determining legislative intent in the exercise of
powers of judicial review under the Constitution. But, in the absence of any
legislation, the executive acting under the doctrine of public trust cannot
abdicate the natural resource and convert them into private ownership or
commercial use. The aesthetic use and the pristine glory of the natural
resources, the environment and the ecosystems of our country cannot be
permitted to be eroded for private, commercial or any other use unless the
Courts find it necessary, in good faith, for the public and in public interest
to encroach upon the said recourses." The responsibility of the state to
protect the environment is now a well-accepted notion in all countries. It is
this notion that, in international law, gave rise to the principle of
"state responsibility" for pollution emanating within one's own
territories [Corfu Channel Case, ICJ Reports (1949) 4]. This responsibility is
clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to
which India was a party. The relevant Clause of
this Declaration in the present context is Paragraph 2, which states:
"The
natural resources of the earth, including the air, water, land, flora and fauna
and especially representative samples of natural ecosystems, must be
safeguarded for the benefit of present and future generations through careful
planning or management, as appropriate. " Thus, there is no doubt about
the fact that there is a responsibility bestowed upon the Government to protect
and preserve the tanks, which are an important part of the environment of the
area.
Sustainable
Development The respondents, however, have taken the plea that the actions
taken by the Government were in pursuance of urgent needs of development. The
debate between the developmental and economic needs and that of the environment
is an enduring one, since if environment is destroyed for any purpose without a
compelling developmental cause, it will most probably run foul of the executive
and judicial safeguards. However, this court has often faced situations where
the needs of environmental protection have been pitched against the demands of
economic development. In response to this difficulty, policy makers and
judicial bodies across the world have produced the concept of "sustainable
development". This concept, as defined in the 1987 report of the World
Commission on Environment and Development (Brundtland Report) defines it as
"Development that meets the needs of the present without compromising the
ability of the future generations to meet their own needs".
Returning
to the Stockholm Convention, a support of such a notion can be found in
Paragraph 13, which states:
"In
order to achieve a more rational management of resources and thus to improve
the environment, States should adopt an integrated and coordinated approach to
their development planning so as to ensure that development is compatible with
the need to protect and improve environment for the benefit of their
population. " Subsequently the Rio Declaration on Environment and
Development, passed during the Earth Summit at 1992, to which also India is a party, adopts the notion of
sustainable development. Principle 4 of the declaration states:
"In
order to achieve sustainable development, environmental protection shall
constitute an integral part of the development process and cannot be considered
in isolation from it. " This court in the case of Essar Oil v. Halar
Utkarsh Samiti, [2004 (2) SCC 392, Para
27] was pleased to expound on this. Their Lordships held:
"This,
therefore, is the sole aim, namely, to balance economic and social needs on the
one hand with environmental considerations on the other. But in a sense all
development is an environmental threat.
Indeed,
the very existence of humanity and the rapid increase in population together
with the consequential demands to sustain the population has resulted in the
concreting of open lands, cutting down of forests, filling up of lakes and the
pollution of water resources and the very air that we breathe. However there
need not necessarily be a deadlock between development on the one hand and the
environment on the other. The objective of all laws on environment should be to
create harmony between the two since neither one can be sacrificed at the altar
of the other. " A similar view was taken by this Court in Indian Council
for Enviro-Legal Action v. Union of India, [1996 (5) SCC 281, Para 31] where their Lordships said:
"While
economic development should not be allowed to take place at the cost of ecology
or by causing widespread environmental destruction and violation; at the same
time the necessity to preserve ecology and environment should not hamper
economic and other developments. Both development and environment should go
hand in hand, in other words, there should not be development at the cost of
environment and vice versa, but there should be development while taking due
care and ensuring the protection of the environment.
"
The concept of sustainable development also finds support in the decisions of
this court in the cases M.C. Mehta v. Union of India (Taj Trapezium Case),
(1997) 2 SCC 653, State of Himachal Pradesh v. Ganesh Wood Products,(1995) 3
SCC 363 and Narmada Bachao Andolan v. Union of India, (2002) 10 SCC 664.
In
light of the above discussions, it seems fit to hold that merely asserting an
intention for development will not be enough to sanction the destruction of
local ecological resources. What this Court should follow is a principle of
sustainable development and find a balance between the developmental needs
which the respondents assert, and the environmental degradation, that the
appelants allege.
Public
Trust Doctrine 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 Company v. People of the State of Illinois, [146 US 537 (1892)] where the Court held:
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.
[] the
state holds the 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
recognize and is not in execution of this trust is permissible.
What
this doctrine says therefore is that natural resources, which includes 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.
The
doctrine, in its present form, was incorporated as a part of Indian law by this
Court in the case of M.C. Mehta v. Kamal Nath , (supra) and also in M.I.
Builders v. Radhey Shyam Sahu, (1999) 6 SCC 464. In M.C. Mehta, Kuldip Singh
J., writing for the majority held:
[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 the legal duty to
protect the natural resources. [Para
22] The Supreme Court of California, in the case of National Audubon Society v.
Superior Court of Alpine Country, 33 Cal.419 also known as the Mono Lake case
summed up the substance of the doctrine. The Court said:
Thus
the public trust is more than an affirmation of state power to use public
property for public purposes. It is an affirmation of the duty of the State to
protect the people's common heritage of streams, lakes, marshlands and
tidelands., surrendering the right only in those rare cases when the
abandonment of the right is consistent with the purposes of the trust.
This
is an articulation of the doctrine from the angle of the affirmative duties of
the State with regard to public trust. Formulated from a negatory angle, the
doctrine does not exactly prohibit the alienation of the property held as a
public trust. However, when the state holds a resource that is freely available
for the use of the public, it provides for a high degree of judicial scrutiny
upon any action of the Government, no matter how consistent with the existing
legislations, that attempts to restrict such free use. To properly scrutinize
such actions of the Government, the Courts must make a distinction between the
government's general obligation to act for the public benefit, and the special,
more demanding obligation which it may have as a trustee of certain public
resources, [Joseph L. Sax "The public Trust Doctrine in Natural Resource
Law:
Effective
Judicial Intervention", Michigan Law
Review, Vol.68 No.3 (Jan.1970) PP 471- 566)]. According to Prof. Sax, whose
article on this subject is considered to be an authority, three types of
restrictions on governmental authority are often thought to imposed by the
public trust doctrine [ibid]:
-
the property
subject to the trust must not only be used for a public purpose, but it must be
held available for use by the general public;
-
the property may
not be sold, even for fair cash equivalent
-
the property
must be maintained for particular types of use.
-
either
traditional uses, or
-
some uses
particular to that form of resources.
In the
instant case, it seems, that the Government Orders, as they stand now, are
violative of principles 1 and 3, even if we overlook principle 2 on the basis
of the fact that the Government is itself developing it rather than transfering
it to a third party for value.
Therefore,
our order should try to rectify these defects along with following the
principle of sustainable development as discussed above.
Further
the principle of "Inter-Generational Equity" has also been adopted
while determining cases involving environmental issues. This Court in the case
of A.P. Pollution Control Board vs Prof. M.V. Nayudu & Ors. (1999) 2 SCC
718 in paragraph 53 held as under:
"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." Several international
conventions and treaties have recognized 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).
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.
Art.
48-A of the Constitution of India mandates that the State shall endeavour to
protect and improve the environment to safeguard the forests and wild life of
the country.
Art.51A
of the Constitution of India, enjoins that it shall be the duty of every
citizen of India, inter alia, to protect and improve
national environment including forests, lakes, rivers, wild life 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 of India and also the various laws enacted by the Parliament and
the State Legislature.
On the
other hand, we cannot also shut our eyes that shelter is one of the basic human
needs just next to food and clothing. Need for a National Housing and Habitat
Policy emerges from the growing requirements of shelter and related
infrastructure.
These
requirements are growing in the context of rapid pace of urbanization,
increasing migration from rural to urban centres in search of livelihood,
mis-match between demand and supply of sites and services at affordable cost
and inability of most new and poorer urban settlers to access formal land
markets in urban areas due to high costs and their own lower incomes, leading
to a non-sustainable situation. This policy intends to promote sustainable
development of habitat in the country, with a view to ensure equitable supply
of land, shelter and services at affordable prices.
The
World has reached a level of growth in the 21st Century as never before
envisaged. While the crisis of economic growth is still on, the key question
which often arises and the Courts are asked to adjudicate upon is whether
economic growth can supersede the concern for environmental protection and
whether sustainable development which can be achieved only by way of protecting
the environment and conserving the natural resources for the benefit of the
humanity and future generations could be ignored in the garb of economic growth
or compelling human necessity. The growth and development process are terms
without any content, without an inkling as to the substance of their end
results. This inevitably leaves us to the conception of growth and development
which sustains from one generation to the next in order to secure `our common
future'. In pursuit of development, focus has to be on sustainability of
development and policies towards that end have to be earnestly formulated and
sincerely observed. As Prof. Weiss puts it, "conservation, however, always
takes a back seat in times of economic stress." It is now an accepted social
principle that all human beings have a fundamental right to a healthy
environment, commensurate with their well being, coupled with a corresponding
duty of ensuring that resources are conserved and preserved in such a way that
present as well as the future generations are aware of them equally.
The
Parliament has considerably responded to the call of the Nations for
conservation of environment and natural resources and enacted suitable laws.
The
Judicial Wing of the country, more particularly, this Court has laid down a
plethora of decisions asserting the need for environmental protection and
conservation of natural resources. The environmental protection and
conservation of natural resources has been given a status of a fundamental
right and brought under Art. 21 of the Constitution of India. This apart, the Directive
Principles of State Policy as also the fundamental duties enshrined in Part IV
and Part IVA of the Constitution of India respectively also stresses the need
to protect and improve the natural environment including the forests, lakes,
rivers and wild-life and to have compassion for living creatures.
Bombay
Suburban Electricity Supply Co. Ltd. & Ors. (1991) 2 SCC 539 held that the
concerned Government should "consider the importance of public projects
for the betterment of the conditions of living people on one hand and the
necessity for preservation of social and ecological balance and avoidance of
deforestation and maintenance of purity of the atmosphere and water free from
pollution on the other in the light of various factual, technical and other
aspects that may be brought to its notice by various bodies of laymen, experts
and public workers and strike a balance between the two conflicting
objectives." However, some of the environmental activists, as noted in the
"The Environmental Activities Hand Book' authored by Gayatri Singh, Kerban
Ankleswaria and Colins Gonsalves, that the Judges are carried away by the money
spent on projects and that mega projects, that harm the environment are not
condemned. However, this Ors., (1995) 2 SCC 577, this Court insisted on the
demolition of structure which have been constructed on the lands reserved for
common purposes and that this Court did not allow its decision to be frustrated
by the actions of a party. This Court followed the said decision in several
cases issuing directions and ensuring its enforcement by nothing short of
demolition or restoration of status quo ante. The fact that crores of rupees
was spent already on development projects did not convince this Court while
being in a zeal to jealously safeguarding the environment and in preventing the
abuse of the environment by a group of humans or the authorities under the
State for that matter.
The
set of facts in the present case relates to the preservation of and restoration
of status quo ante of two tanks, historical in nature being in existence since
the time of Srikrishnadevaraya, The Great, 1500 A.D., where the cry of socially
spirited citizens calling for judicial remedy was not considered in the right
perspective by the Division bench of the High Court of Andhra Pradesh despite
there being overwhelming evidence of the tanks being in existence and were
being put to use not only for irrigation purpose but also as lakes which were
furthering percolation to improve the ground water table, thus serving the
needs of the people in and around these tanks. The Division Bench of the High
Court, in the impugned order, has given precedence to the economic growth by
completely ignoring the importance and primacy attached to the protection of
environment and protection of valuable and most cherished fresh water
resources.
No
doubt, the wishful thinking and the desire of the appellant- forum , that the
Tanks should be there, and the old glory of the tanks should be continued, is
laudable. But the ground realities are otherwise. We have already noticed the
ground realities as pointed out by the Government of Andhra Pradesh, TUDA and
TTD in their reply to the Civil appeals by furnishing details, datas and particulars.
Now a days because of the poverty and lack of employment avenues, migration of
people from rural areas to urban areas is a common phenomenon. Because of the
limited infrastructure of the towns, the towns are becoming slums. We,
therefore, cannot countenance the submissions made by the appellant in regard
to the complete restoration and revival of two tanks in the peculiar facts and
circumstances of this case. We cannot, at the same time, prevent the Government
from proceeding with the proper development of Tirupathi town. The two
Government Orders which are impugned have been issued long before and pursuant
to the issuance of the Government Orders, several other developments have taken
place.
Constructions
and improvements have been made in a vast measure. Because of spending crores
and crores of rupees by various authorities, the only option now left to the
appellant and the respondents is to see that the report submitted by the Expert
Committee is implemented in its letter and spirit and all the respondents shall
cooperate in giving effect to the Committee's report.
It is
true that the tank is a communal property and the State authorities are
trustees to hold and manage such properties for the benefits of the community
and they cannot be allowed to commit any act or omission which will infringe
the right of the Community and alienate the property to any other person or
body.
Taking
into account all these principles of law, and after considering the competing
claims of environment and the need for housing, this Court holds the following
as per the facts of this case.
The
Respondents have claimed that the valuable right to shelter will be violated if
the impugned Government Orders are revoked. On the facts of the present case,
it seems that the respondents intend to build residential blocks of flat for
High and Middle income families, institutions as well as infrastructure for the
TTDS. If the proposed constructions are not carried on, it seems unlikely that
anyone will be left homeless or without their basic need for shelter.
Therefore, one feels that the right to shelter does not seem to be so pressing
under the present circumstances so as to outweigh all environmental
considerations.
Another
plea repeatedly taken by the respondents correspond to the money already spent
on developing the land. However, the decision of this case cannot be based
solely upon the investments committed by any party. Since, otherwise, it would
seem that once any party makes certain investment in a project, it would be a
fait accompli and this Court will not have any option but to deem it legal.
Therefore,
under the present circumstances, the Court should do the most it can to
safeguard the two tanks in question. However, due to the persistent
developmental activities over a long time, much of the natural resources of the
lakes has been lost, and considered irreparable. This, though regrettable, is
beyond the power of this court to rectify.
One
particular feature of this case was the competing nature of claims by both the
parties on the present state of the two tanks and the feasibility of their
revival. We thought that it would be best, therefore, if we place reliance on
the findings of the expert committee appointed by us which has considered the
factual situation and the feasibility of revival of the two tanks. Thus in
pursuance of a study of that committee, this Court passes the following orders.
The
appeals are disposed of with the following directions: With regard to
Peruru tank:
-
No further
constructions to be made.
-
The supply
channel of Bodeddula Vanka needs to be cleared and revitalized.
A
small check dam at Malapali to be removed to ensure the free flow and supply to
the tank.
-
Percolation tank
to be constructed and artificial recharge to be done to ensure the revival of
the tank, keeping in mind its advantage at being situated at the foot hills.
-
The area
allotted by Mandal Revenue Office for construction of the tank to be increased
to a minimum of 50 acres. Percolation tank with sufficient number of recharge shafts
to be developed to recharge the unsaturated horizons up to 20 m. The design of
the shafts etc. to be prepared in consultation with the CGWB. The proposed
percolation tank to be suitably located along the bund keeping in view the
inlets, irrigation sluices and surplus water.
-
Feasibility and
cost estimation for the revival of the old feeder channel for Swarnamukhi River should be carried and a report to be submitted to the
Court.
-
Each house
already constructed by the TTD must provide for roof top rain water harvesting.
Abstraction from ground water to be completely banned. No borewell/ tubewell
for any purpose to be allowed in the area.
-
Piezometers to
be set up at selected locations, in consultation with the CGWB to observe the
impact of rain water harvesting in the area on ground water regime. With regard
to Avilala tank:
-
No further
construction to be allowed in the area.
-
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 designed in
consultation with the CGWB.
-
No borewell/
tubewell for any purpose to be allowed in the area.
-
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.
-
Piezometers to
be set up at selected locations, in consultation with the CGWB to observe the impact
of rain water harvesting in the area on ground water regime.
We
place on record our deep appreciation for the valuable assistance rendered by
all the counsel appearing in this case which made our job easier.
The
appeals are disposed of accordingly no costs.
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