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IN THE SUPREME COURT OF Hon'ble Judges: Counsels: For Respondents/Defendant: Subject: Acts/Rules/Orders: Cases Referred: Prior History: JUDGMENT AR. Lakshmanan, J. 1. Leave granted. 2. 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. 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 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 lakh to two lakhs. GRIEVANCE: 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 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 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 13. 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. 14. 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. 15. 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 (i) Ramayapalli Kasarkaluwa (ii)
Kasarkaluwa of Vedantpuram Agraharam and (iii) drainage water of Timlagunta wet
fields (iv) 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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. 21. 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. 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 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. 23. 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. 24. 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. 25. 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. 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 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. 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 tank were disturbed and
occupied, with the result the tank remained dry with part of it covered with
scrub since 1976 onwards. 28. 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. 29. 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. 30. 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. 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 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. 32. 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. 33. In the above background, the following questions of law arise for
consideration by this Court:- 1. Whether the Urban Development could be given primacy over and above the
need to protect the environment and valuable fresh water resources? 2. 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? 3. Whether the need for sustainable development can be ignored, do away with
and cause harm to the environment in the name of urban development? 4. Whether
there are any competing public interests and if so how the conflict is to be
adjudicated/reconciled? 34. 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. 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 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. 2. 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. 3. 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. 36. 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. 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 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 (1) Ramayapalli Kasam Kalva
(2) Kasam Kalva of Vedan thapuram Agraharam (3) Drainage water of Thummalapetta
wet fields and (4) 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: 1. 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. 2. 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. 38. 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. 39. 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. 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 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. 41. 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. 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 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. 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 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. 45. 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. 46. 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. 47. 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: 1. 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. 2. 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. 48. 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:
49. 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. 50. 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 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 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. 54. 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 MANU/SC/1007/1997
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. 55. 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 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 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. 57. This court in the case of Essar Oil v. Halar Utkarsh Samiti MANU/SC/0037/2004
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 MANU/SC/1189/1996
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 a
principle of sustainable development and find a balance between the
developmental needs which the respondents assert, and the environmental
degradation, that the appellants allege. Public Trust Doctrine 59. 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. 60. 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 MANU/SC/0999/1999.
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]: 1. 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; 2. the property may not be sold, even for fair cash equivalent 3. the property must be maintained for particular types of use. (i) either
traditional uses, or (ii) 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. 61. 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 v. Prof.
M.V. Nayudu and Ors. MANU/SC/0032/1999
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. 62. 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). 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.
Article 48A
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. Article 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 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. 65. 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. 66. 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 Article 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. v. Bombay Suburban Electricity Supply Co. Ltd. and
Ors. MANU/SC/0574/1991
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." 68. 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 criticism seems to be baseless since in Virender Gaur
and Ors. v. State of Haryana and Ors. MANU/SC/0629/1995,
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. 69. 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. 70. 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. 71. 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. 72. 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. 73. 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. 74. 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. 75. 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. 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 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. (vii) 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: (i) No further construction to be allowed in the area. (ii) 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. (iii) No borewell/ tubewell for any purpose to be allowed in the area. (iv) 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. (v) 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. 77. 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. 78. The appeals are disposed of accordingly - no costs. |