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TMI Blog2006 (2) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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: - (i) No further constructions to be made. (ii) 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. (iii) 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. (iv) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent 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. 3. 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. 4. 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 lak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la 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. 7. Since, there was no response to the representations ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 11. 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. 12. Mr. G. Ramakrishna Prasad, learned counsel appearing for the appellant made the following submissions: 1. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. TTD is one of the well know ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 16. It was submitted that the A.P. Housing Board paid ₹ 90 lakhs towards the cost of the land @ ₹ 1 lakh for each acre to the Government and also spent a sum of ₹ 88.43 lakhs towards development of the land so far. Thus, in all A.P. Housing Board has invested a sum of ₹ 1,78,43,000/- and the further development was stopped in view of the pendency of the writ petition. 17. The A.P. Dairy Development Corporation has established Balaji Dairy in a portion of the land under reference by spending over ₹ 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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. 22. 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 lay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lans of action to provide in the new township partly with the amounts received from open auction: 26. 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 ₹ 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. 27. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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. 31. 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. 35. 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: 1. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 37. 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 enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 40. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial 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. 42. In the counter affidavit filed by A.P. Housing Board on 26.6.2000, it is submitted that the A.P. Housing Board paid ₹ 90 lakhs towards the cost of the land @ ₹ 1 lakh for each acre to the Government and also spent a sum of ₹ 88.43 lakhs towards development of the land so far. Thus, in all APHB has invested a sum of ₹ 1,78,43,000/- and the further development was stopped in view of the pendency of the writ petition. 43. 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. 44. 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof top rain water harvesting and artificial recharge 51. 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. 52. 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. 53. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple 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 56. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 58. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 98 of his report). 63. 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. 64. On the other hand, we cannot also shut our eyes that shelter is one of the basic hum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly, 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. 67. This Court in Dahanu Taluka Environmental Protection Group and Ors. Vs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iced 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court passes the following orders. 76. The appeals are disposed of with the following directions: With regard to Peruru tank: (i) No further constructions to be made. (ii) 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. (iii) 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. (iv) 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. (v) 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. (vi) Each house already constructed by the TTD must provide for r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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