Smt. S. Maheswari vs The State Of Andhra Pradesh
2021 Latest Caselaw 4379 AP

    IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH

         WRIT PETITION Nos.20185 and 7988 of 2020

#
W.P.No.20185 OF 2020 & another

Smt. S. Maheswari,
w/o G. Ramesh Babu
Kuntrapakam Villae, Tirupati,
Chittoor District - 517 006                     ..... Petitioners

Vs.

$
The State of Andhra Pradesh
Rep. by its Principal Secretary
Revenue Department
Secretariat Buildings, Velagapudi
Guntur District                                ..Respondents

! Counsel for the petitioner : Ms. Sodum Anvesha

^ Counsel for the respondent :

1. Learned Government Pleader for Revenue

JUDGMENT PRONOUNCED ON: 28.10.2021

* THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

1. Whether Reporters of Local newspapers may be allowed to see the Judgments?

2. Whether the copies of judgment may be marked to Law Reporters/Journals

3. Whether Their Ladyship/Lordship wish to see the fair copy of the Judgment?

MSM,J

* THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY

+ WRIT PETITION Nos.20185 and 7988 of 2020

% Dated 28.10.2021

# W.P.No.20185 OF 2020 & another

Smt. S. Maheswari, w/o G. Ramesh Babu Kuntrapakam Villae, Tirupati, Chittoor District - 517 006 ..... Petitioners

Vs.

$ The State of Andhra Pradesh Rep. by its Principal Secretary Revenue Department Secretariat Buildings, Velagapudi Guntur District ..Respondents

! Counsel for the petitioner : Ms. Sodum Anvesha

^ Counsel for the respondent :

Learned Government Pleader for Revenue <GIST:

> HEAD NOTE:

? Cases referred

1. (2001) 6 Supreme Court Cases 496

2. (1997) 1 Supreme Court Cases 388

3. (1997) 1 SCC 388

4. (2020) 15 SCC 63

5. (2012) 5 SCC 1

6. (2010) 3 SCC 402

7. (2006) 3 SCC 549

8. (2004) 9 SCC 362

9. (2019) 15 SCC 401

10. (2002) 10 SCC 606

11. (2006) 3 SCC 549

12. (2019) 4 SCC 500

13. (2018) 15 SCC 407

14. 31 ILM 818 (1992)

15. 31 ILM 849 (1992)

16. AIR 2020 SC 3471

17. 2019 (17) SCALE 29

18. WP(MD) No.18575 of 2019 dated 26.04.2021

19. AIR 2011 SC 1123

20. 1972 (1) SCC 521 (529) MSM,J

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION Nos.20185 and 7988 of 2020

COMMON ORDER:

These two Writ Petitions are filed under Article 226 of the

Constitution of India by two different concerns claiming

identical reliefs. Therefore, I find that it is expedient to decide

both the Writ Petitions by a common order:-

1. Writ Petition No.20185 of 2020 is filed under Article 226

of the Constitution of India, claiming the following relief:

"....to issue a Writ Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents in taking steps for conversion of Yetteramma Gutta @ Yetteri Gutta @ Siddeswara Gutta hillock comprising Ac.131-45 cents in Sy.No.612 of Kuntrapakam Village, Tirupati Rural Mandal, Chittoor District for eventual assignment of house sites by removal of existing idols and temples and other religious places as illegal, arbitrary and consequently direct the respondents to preserve all the existing temples, idols and other features of the Yetteri Gutta and pass such other order....."

2. Writ Petition No.7988 of 2020 is filed under Article 226 of

the Constitution of India, claiming the following relief:

"....to issue a Writ Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents in taking steps for conversion of Yetteramma Gutta @ Yetteri Gutta @ Siddeswara Gutta hillock comprising Ac.119-45 cents in Sy.No.612 of Kuntrapakam Village, Tirupati Rural Mandal, Chittoor District for eventual assignment of house sites and to cause the disappearance of the grazing lands and hillock itself in view of the programme of "Navaratnalu-Pedalandariki Illu" announced by 1st respondent as illegal, arbitrary and consequently direct the respondents to protect all the existing features of the Yetteri Gutta without subjecting it to any alteration/ change of nature of the hillock and pass such other order....."

3. Since the contentions in both the writ petitions are one

and the same, to avoid repetition of facts, W.P.No.20185 of

2020 is taken as a leading case.

MSM,J

4. The petitioner in W.P.No.20185 of 2020 is a person having

background to protect environment and filed this petition only

to protect and to conserve the mountains as her right to life is

affected on account of proposed action of the respondents.

5. The petitioner born and brought up at Kuntrapakam

Village and after marriage also she is living at Kuntrapakam

Village as her husband also belongs to same village. She

possessed Master Degree in Telugu, English and also in

Education, worked as Lecturer in Philosophy and

Environmental Education for 16 years and served as Incharge

Principal. She did many environmental protection activities

along with SV University NSS, Sri Padmavathi Mahila

University NSS, Oriental College and elected unanimously as

President of Water users Association of Yeguva Cheruvu

Dhiguva Cheruvu, Kuntrapakam. During her period as

President, she took a project with the help of locals to harvest

rain water and increase ground water levels. She planted

thousands of plants with SV and Padmavathi Mahila

Universities NSS volunteers and invited many great people to

their village to get suggestions for environmental protection.

She being a Chairman of Yeguva Chervuvu and Diguva

Cheruvu Water Users Association submitted that land

measuring Ac.131-45 cents in Sy.No.612 at Kuntrapakam

Village, Tirupati Rural is classified as Gayalu (Gutta)

Poramboke and it is locally called as Yetteri Gutta (Yetteramma MSM,J

Gutta). The land is situated about 2 Kms from Kuntrapakam

and Kupuchandrapet Villages and 8 Kms from Tirupati. It is a

hillock with abundance of trees, plantations and plays a vital

role in sustaining the flora and fauna. The Eguva Cheruvu

meaning upper tank, spread in an extent of Ac.119-34 cents

situated in S.No.599 and Diguva Cheruvu meaning lower tank,

spread in an extent of Ac.165-23 cents situated in Sy.No.575/1

of Kuntrapakam Village. While Eguva Cheruvu has an ayacut of

Ac.112-70 cents, Diguva Cheruvu is having an ayacut of

Ac.117-74 cents and both these tanks are adjoining to the land

in Sy.No.612 and the land in Sy.No.612 is the subject land of

the Writ Petition.

6. The land in Sy.No.612 is classified as „gutta poramboke‟

in revenue records and it is popularly called as "Yetteri Gutta".

The gutta consists of several temples of different deities viz.,

Katama Raju Temple, Dharan Charan Mandali Samyatha

Girandha Nilayam, Ellamma Temple, Vigneshwara Temple,

Veerabrahmendra Swamy Temple, Anjaneya Swamy Temple,

Rathisambla Mandapam, Muslim Eidgah. The local public visits

the above said temples for offering their prayers, more

particularly during festival occasions, large number of people

would attend those temples. The said gutta is used for grazing

cattle for the last many decades by the people of surrounding

village who are cultivating their patta land in the neighbouring

villages. In the year 2000, the Andhra Pradesh Government has MSM,J

cancelled quarry licenses to protect the environment based on

the complaints by the farmers and people of neighbouring

villages. The idols belonging to 9th and 10th century are

discovered on the hillock, they are being preserved in

Sri Tirumala Museum and students are carrying out NSS and

other social activities of planting trees for the preservation of

the said hillock and its surroundings for many decades.

7. Way back on 19.11.1999, the Mandal Revenue Officer,

Ramachandrapuram has granted permission and distributed

1000 plants to NSS volunteers of S.P.Mahila Viswa Vidyalayam

and they have carried out the activities of plantation of trees.

8. The Chairman of Tirupati Urban Development Authority

(herein after referred as TUDA) requested for government lands

in revenue villages in and around Tirupati to transfer in favour

of TUDA in terms of G.O.Rt.No.1606/MA & UDA (112)

Department, dated 01.12.2005 and further reference of CM

Office Lr.No.3304/CMP/2009, dated 17.08.2009 for necessary

action. Further, the Collector vide Roc.E1/8113/2009, dated

10.09.2009 has directed to examine and take necessary action

on the request and further stated that the lands mentioned in

Annexure-I that are objectionable porambokes and covered by

directions of the Hon‟ble Apex Court in Hinch Lal Tiwari v.

MSM,J

Kamala Devi1 and in the list of Annexure-I, Sy.No.612 of

Kuntrapakam Village is mentioned.

9. While the matter stood thus, in the year 2007 Vice

Chairman of TUDA has requested the Tahsildar to allot the land

in Sy.No.612 of Kuntrapakam Village admeasuring Ac.131-45

cents for plantation of trees to TUDA. The Tahsildar vide ROC

No.866/2007, dated 30.08.2007 forwarded his no objection to

the Collector and observations that in Ac.131-45 cents,

Ac.12-00 is covered by thorny bushes and boulders and certain

structures are already existing on the ground. On the orders of

the Collector, the Revenue Divisional Officer has issued order in

favour of TUDA for plantation of trees vide

Lr.No.Roc.C/1690/2007, dated 20.09.2007 with the following

observations and conditions:

"The land in Sy.No.612 measuring an extent of 131-45 cents is classified as gayalu (gutta) poramboke and it is locally called as Yetteri Gutta (Yetteramma Gutta). The land is situated about 2 Kms from Kuntrapakam and Kupuchandrapet Villages and 8 Kms from Tirupati. The entire land is covered by boulders and a part of gutta with an extent of Ac.12-00 is covered by thorny bushes and other structures. The land is being used for communal purposes like annual ceremonies, cattle grazing, Sankranti festivals and that the said land is sub-divided as 612/2 and 612/3. The remaining land with an extent of Ac.119-45 cents has been sub-divided as 612/1 and proposed in favour of TUDA for plantation of trees".

(2001) 6 Supreme Court Cases 496 MSM,J

10. In the circumstances reported by the Revenue Divisional

Officer, Tirupati in the reference read above and after

examining the issues, permission is accorded to the Tahsildar,

Tirupati Rural Mandal to handover an extent of

Ac.119-45 cents in Sy.No.612/1 of Kuntrapakam Village,

Tirupati Rural Mandal in favour of Vice-Chairman, TUDA for

plantation of trees as per BSO-19-B subject to the following

conditions:

a) The TUDA authorities confer no right over the land

b) No fence shall be raised by the TUDA authorities, except for the separate protection of each young plant

c) The permission will be subject to cancellation. The TUDA authorities shall not be entitled to compensation for any trees planted or for any improvements made in the land

d) The communal interests of the villagers should not be affected.

11. Recently, the Government has proposed the

distribution of large number of pattas in the State. Under the

guise of issuance of allotment of house site to various

beneficiaries, the Revenue Authorities have proposed to

distribute house site ignoring their nature, classification, usage

and the purpose of utilization till now. They are converting the

riverbeds, vagu & vanka porambokes, hillocks, grazing lands

etc., for allotment of house site and they are not leaving the

environment also and proposing to change the existing

features. Now the respondents have taken up the cause of

conversion of the above said lands for distribution of house MSM,J

sites. They have mobilized the proclains and JCBs at hillock

about a week back and changing the nature of the hillock. They

are deforesting by cutting the trees and the shape of the hillock

will be changed and destroyed. There are number of other

government lands for allotment of house site, but it is only

because the local politicians wanted to allot the house site on

the hillock place by changing the nature of hillock, the

respondents are proposing to allot house site to the landless

poor.

12. The action of the authorities in allowing destruction of the

environment on the hillock and changing physical features

existing there and to prevent the illegal raising down of the

hillock, petitioner preferred Original Application No.42/2020

(SZ) before the National Green Tribunal (NGT) at Southern Zone

at Chennai invoking Section 18(1) r/w Sections 14 and 15 of

National Green Tribunal Act, 2010. The Tribunal by its order

dated 28.05.2020 constituted a Joint Committee to inspect the

area in question and to submit the status as well as action

taken report. The Joint Committee consists of the District

Collector, Chittoor, the Vice-Chairman, Tirupati Urban

Development Authority and the Environmental Engineer, A.P.

Pollution Control Board at Tirupati. The Committee filed his

report before the Green Tribunal stating that necessary action

has to be taken for the removal of idols erected on the hillocks.

MSM,J

The Committee stated as if in the land proposed for house sites,

some miscreants authorizedly erected some idols of Hindu,

Christian and Muslim community. The Committee stated that

some portion of the land which is at the foothill of the hillock is

identified and proposed for house sites to the landless poor

under the Government housing scheme and the matter is

pending before the Green Tribunal.

13. The petitioner and other villagers made a representation

before the concerned authorities with a request not to convert

the nature of hillock into house sites and distribute the same

which would disturb the environment and hillock with its

greenery would be protected through their active involvement.

The then Deputy Chief Minister, by Roc No.E6/5199/2014,

dated 25.09.2014 instructed the Tahsildar to take steps for

protection of the Yetterigutta by staying the issue of any house

site pattas. On 03.01.2015 the Gram Panchayat also opposed

the issue of such house site pattas by passing a unanimous

resolution by involving Grama Sabha. The present District

Collector on 21.02.2020 announced allotment of Yetterigutta

for house site as it is a Gayalu Poramboke. The other

authorities have taken the consequential steps for allotment of

house site. She further submitted that while the matter stood

thus, the test of time with idols recovered from 10th Century,

the communal gathering and harmony of celebrating Sankranti

festival of neighbouring villages and grazing of livestock and MSM,J

praying for their well being is interwoven fabric of the culture

and the land is witness to that harmony and well being. It is

quoted in the citizens report about the curse of Meghalaya

"Although, we have been endowed with abundant forests and

minerals, these resources have not contributed to the good of our

society, because they have been extracted without any

regulation or concern for the larger common good. This

unregulated, narrow, self-interest based use of natural resources

has exacerbated socio-economic inequality, destroyed the

environment, heightened criminality and torn as under our

egalitarian tribal social fabric" this statement applies to the

present scenario to the petitioner locality also and therefore

taking a property for allotment of house site to the landless

poor would cause substantial damage to the environment and

therefore, the same cannot be allotted. Hence, the Writ Petition.

14. The respondents filed counter-affidavit denying the

material allegations while admitting nature of classification and

proposal of allotment of house site to the landless poor to 300

beneficiaries and remaining extent Ac.121-45 cents is reserved

for future need. It is also contended that the land was levelled

clearing bushes and ready for house site layout formation. No

valuable trees were fallen down; only the shrub growth was

levelled. There is no harm either to the environment or to the

local villagers due to allotment of land as house site. The

ecology and environment of the area is not disturbed at any MSM,J

point of time. The respondents are taking every step to protect

the public interested communal land from land grabbers.

15. It is further submitted that, since the public interest

stands on priority and an extent of Ac.10.00 cents out of

Ac.131-45 cents is alone proposed for housing and there is no

disturbance to the ecological balance and grazing of cattle of

the villagers and that no harm either to the surrounding land

or plant life as pointed out by the petitioner.

16. The land in Sy.No.612 is classified as Gayalu i.e. Un-

Assessed waste Dry (UAD) an extent of Ac.10-00 was alone

proposed for house site allotment and the remaining land is

kept intact. The main contention of the petitioner is that, the

environment and ecological balance of the area and plant life in

the area will be disturbed due to allotment of house sites which

is not based on any material.

17. Finally, it is contended that since the land is

unobjectionable government land, the Government is at liberty

to utilize the land for communal needs and the petitioner or

anybody cannot question the same. There is no contravention

of the orders of the Government or orders of the Courts to

maintain ecological balance. The petitioner has filed the Writ

Petition as pre-emptive litigation to restrain the revenue

authorities in allotting house sites to weaker sections people, if MSM,J

this Court grants any sort of relief, then the petitioner will try to

perturb the Government programme by virtue of the orders but

not on merits. Therefore, absolutely no ground to grant the

relief. Hence, dismiss the petition at the stage of admission.

18. Writ Petition No.7988 of 2020 is filed by one Smt.

Yamanaboina Vijaya Lakshmi who is claiming to be a social

activist while reiterating the allegations made in the other Writ

Petition No.20185 of 2020. The allegations in both the Writ

Petitions are one and the same.

19. During hearing, Sri P.Veera Reddy, learned Senior

Counsel representing Ms. Sodum Anvesha, learned counsel for

the petitioner would contend that the land in Sy.No.612 is

classified as Gayalu (Gutta Poramboke) and it is a hillock and

the same cannot be identified for allotment of house sites in

terms of G.O.Ms.No.510 Revenue (Lands-I) Department dated

30.12.2019 and apart from that it would seriously infringe the

environment disturbing ecological imbalance endangering to

bio-diversity instead of preserving the maintenance, the States

and its officers are trying to destroy the maintenance

environment, ecology and biodiversity which is contrary to the

law laid down by the Hon‟ble Apex Court in M.C.Mehta v.

Kamal Nath and Others2 and other judgment in Hinch Lal

Tiwari v. Kamala Devi (referred supra). On the strength of the

above two judgments and based on orders passed by National

(1997) 1 Supreme Court Cases 388 MSM,J

Green Tribunal (SZ), he contended that both in contravention of

G.O.Ms.No.510 Revenue (Lands-I) Department dated

30.12.2019 and contravention of law, proposed action of the

Revenue Department to allot house sites to 300 beneficiaries in

an extent of Ac.10-00 in Sy.No.612 of Kuntrapakam Village,

Tirupati Rural Mandal, Chittoor District, is illegal and arbitrary

and it infringes the rights of community at large.

20. Whereas, the learned Assistant Government Pleader for

Revenue contended that the land in an extent of Ac.10-00 in

Sy.No.612 of Kuntrapakam Village is vacant and classified as

Gayalu which is unassessed waste and it is a Government land

and it can be used for any purpose of the Government and to

allot house sites to the houseless people under the scheme

"Navaratnalu-Pedalandariki Illu". The orders passed by the

South Zone Bench did not prevent the State and its authorities

to distribute house site to 300 beneficiaries in an extent of

Ac.10-00 in Sy.No.612 of Kuntrapakam Village. Hence, the

contention of the petitioner is without any basis and requested

to dismiss the Writ Petition at the stage of admission itself.

21. Considering rival contentions, perusing the material

available on record, the points that arose for consideration are

as follows:

1) Whether the petitioners in both the Writ Petitions being members of a community of Kuntrapakam Village are entitled to question the act of the respondents?

MSM,J

2) Whether the allotment of house sites to 300 beneficiaries in an extent of Ac.10-00 in Sy.No.612 of Kuntrapakam Village is contrary to the order dated 29.01.2021 in O.A.No.42 of 2020 passed by the National Green Tribunal, Southern Zone, Chennai and the proposed allotment of house site causing disturbance to the environment besides serious effect on bio-diversity, if any? Whether the respondent- Tahsildar be restrained from allotting house site in an extent of Ac.10-00 in Sy.No.612 of Kuntrapakam Village to the houseless poor?

POINT No.1:

22. The first and foremost contention of the petitioners is that

they are residents of Kuntrapakam Village and that hillock in

Sy.No.612 of Kuntrapakam Village is classified as communal

land reserved for communal purpose and therefore, the

petitioners being members of the community in the village are

entitled to claim the relief. Whereas, learned Assistant

Government Pleader for Revenue submitted that in the absence

of proof that the right of any individual is infringed a want of

Mandamus of maintenance cannot be issued as it is purely a

discretionary extra-ordinary relief under Article 226 of the

Constitution of India and requested to reject the claim of the

petitioners on the sole ground that the right of the petitioners is

not infringed by the acts of the respondents.

23. Undisputedly, both the petitioners are social activists and

always working to protect the environment in the Village

besides taking programmes on plantation etc. The major MSM,J

contention of the petitioners in the affidavit filed along with writ

petitions is that the land in Sy.No.612 of Kuntrapakam Village

is a communal land being used for communal purpose

including grazing of cattle and celebrating Sankranti festival.

This is not denied by the respondents in the counter. On the

other hand, in the counter-affidavit filed by the respondent-

Tahsildar in both the writ petitions specifically admitted that

the land is communal land and at Page No.3 of the counter in

W.P.No.20185 of 2020, at Para No.6, it is pleaded that the land

is un-objectionable Government land which is earmarked for

"communal purpose". At the same time, in Para No.8 of the

same counter, it is contended that the respondents are taking

every step to protect the public interested "communal land"

from land grabbers. Similarly in Para No.8 of the counter filed

in W.P.No.7988 of 2020, it is specifically contended that there

is no disturbance to the ecological balance and for "grazing the

cattle" of the villages and no harm either to the surrounding

lands or plant life as pointed out by the petitioners. Therefore,

the classification of the land or reservation of the land in

Sy.No.612 of Kuntrapakam Village for communal purpose is an

undisputed fact. When the land is reserved for communal

purpose, every member of community is entitled to enjoy / use

the land meant for communal purpose. Therefore, the

petitioners being members of community are entitled to claim MSM,J

the relief as their right is likely to be infringed in the event of

allotment of house site in the subject property. [

24. When the land is classified or reserved for communal

purpose i.e. a community at large more particularly for grazing

cattle and for performing pujas in Temples on the hillocks

besides using the land for celebrating Sankranti festival, it can

safely be concluded that unless its nature is changed from

communal purpose, the communal land is classified as Gayalu

i.e. Un-Assessed Waste Dry (UAD), it cannot be assigned to any

landless poor in view of the bar under Para 4 of B.S.O-15. As

on date of classification of the land is not changed by following

procedure prescribed under B.S.O-15 (2) and even otherwise,

there is a direct prohibition of assignment of communal land

under clause (h) of B.S.O(15)(4). But here petitioners were not

assigned the land under the scheme "Navaratnalu-

Pedalandariki Illu" strictly adhering to B.S.O-15, but by

invoking B.S.O-21. However, State is allotting the land as

house site and collecting one rupee as its nominal value by

executing registered document of deed of conveyance for its

purpose. Hence, this allotment is not under B.S.O, but it is an

outright sale.

25. In any view of the matter and in view of the prohibition

containing under B.S.O-15, the land neither be allotted to

houseless poor under the scheme nor assigning under

B.S.O-21 to landless poor.

MSM,J

26. Moreover, as per G.O.Ms.No.510 Revenue (Lands-I)

Department dated 30.12.2019, the Government directed the

District Collectors not to identify the following lands.

"The powers are delegated to District Collectors for providing house sites only under the flagship programme "NAVARATNALU- PEDALANDARIKI ILLU".

The District Collectors are further instructed that not to propose any lands belongs to Endowments, Educational Institutions, Wakf or any other religious related lands, environmentally sensitive and fragile areas such as, tank beds, river beds, other water bodies and "hillocks with afforestation etc.," for house site purposes".

27. Later, G.O.Ms.No.558 (Panchayat Raj & Rural

Development (Pts.III) Department, dated 02.03.2020 was issued

de-notifying certain pormaboke lands in the State, which are

vested with Gram Panchayats under sub-section (1) of Section

58 of the Andhra Pradesh Panchayat Raj Act, 1994 and they

shall cease to vest in the Gram Panchayat and they shall vest

with the Government. But, G.O.Ms.No.510 Revenue (Lands-I)

Department dated 30.12.2019 is not superseded. But merely

because the land i.e., on hillock or hill top is vested on the

Government, it cannot be allotted to houseless poor either

under the scheme "Navaratnalu-Pedalandariki Illu" or under

any other scheme, unless, it is converted from communal land

to Un-Assessed waste Dry (UAD) by following procedure under

B.S.O-15(2) of the Andhra Pradesh Board of Revenue Standing

Orders. Even otherwise, in view of the bar under B.S.O-15(4), it

cannot be assigned or allotted being communal land as

admitted by the respondents. Hence, the petitioners being MSM,J

members of the community, their rights are effected along with

other members of the community and are having locus to

challenge the act of the respondents and thereby, the

contention of the Assistant Government Pleader that the land is

hereby rejected while holding that petitioners are being the

members of the community are entitled to claim relief as the

rights of the community is being infringed or invaded due to

allotment of Ac.10-00 of land to houseless poor under the

scheme "Navaratnalu-Pedalandariki Illu". Accordingly, the

point is answered in favour of the petitioners and against the

respondents.

POINT No.2:

28. It is undisputed fact that the subject land is classified as

gutta which is locally known as Yetteramma Gutta since the

land in Sy.No.612 of Kundrapakam Village is classified as

hillock and the same cannot be converted into house site due to

impact on the environment and bio-diversity in the area.

Though the total extent of land is Ac.131-45 cents, only

Ac.10-00 cents is being converted into house sites as admitted

by the respondents, the same is illegal and contrary to the law

laid down by the Hon‟ble Apex Court.

28. Learned Senior Counsel Sri P.Veera Reddy in support of his

contentions has drawn the attention of this Court in MSM,J

M.C.Mehta vs. Kamal Nath and Others3. It is now well settled

that the Government as well as the citizens have a

constitutional obligation to protect environment and

ecology(Article 48-A and Article 51-A(g)). The doctrine of inter-

generational equity adumbrates that environment is not only

for the benefit of the present but also the future generations.

The Supreme Court in eloquent enunciation of the doctrine of

public trust held that the State as a trustee of all natural

resources is under a duty to protect them. Resources meant for

public use cannot be converted into private ownership. The

health of the environment is key to preserving the right to life

as a constitutionally recognized value under Article 21 of the

Constitution of India. (vide Bengaluru Development Authority

Vs. Sudhakar Hegde and Others4). In Ramlila Maidan

Incident, In re5) it was observed that the Constitution also

speaks of preservation and protection of animals, all creatures,

plants, rivers, hills and environment. In State of Uttaranchal

Vs. Balwant Singh Chaufal6, it was noted that in the second

phase of evolution of public interest litigation, because of vast

destruction of environment, the Courts gave directions in a

large number of cases and made a serious endeavour to protect

and preserve ecology, environment, forests, hills, rivers, marine

(1997) 1 SCC 388

(2020) 15 SCC 63

(2012) 5 SCC 1

(2010) 3 SCC 402 MSM,J

life, wildlife etc. In Intellectuals Forum Vs. State of A.P7, it

was held that it is the responsibility of the State to protect the

environment. The following Clause from the 1972 Stockholm

declaration was extracted:

"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. "

29. In N.D.Jayal and Others V. Union of India and Others8,

the Supreme Court observed that the right to environment has

been declared as a fundamental right. In Hanuman Laxman

Aroskar V. Union of India9, it was noted that in 2016, the

First World Environmental Law Congress, co-sponsored by the

International Union for Conservation of Nature and UN

Environment, adopted the IUCN World Declaration on the

Environmental Rule of Law which outlines the following 13

principles for developing and implementing solutions for

ecologically sustainable development:

(i) Obligation to Protect Nature

(ii) Right to Nature and Rights of Nature

(iii) Right to Environment.

(iv) Ecological Sustainability and Resilience.

(v) In Dubio Pro Natura

(vi) Ecological Functions of Property

(vii) Intragenerational Equity

(viii) Intergenerational Equity

((2006) 3 SCC 549

(2004) 9 SCC 362

(2019) 15 SCC 401 MSM,J

(ix) Gender Equality

(x) Participation of Minority and Vulnerable Groups

(xi) Indigenous and Tribal Peoples

(xii) Non-regression

(xiii) Progression

30. In T.N.Godavarman Thirumalpad V. Union of India10,

the Supreme Court held that the right to live is now recognised

as a fundamental right to an environment adequate for health

and well being of human beings.

31. In another judgment of Hon‟ble Apex Court in Hinch Lal

Tiwari vs. Kamala Devi and Others (supra), the Court held

that:

"The material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention on developing the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment of non-abadi sites".

(2002) 10 SCC 606 MSM,J

32. Thus, in both the judgments, the Hon‟ble Supreme Court

specifically held that hillocks and other natural resources are

the bounty of the nature and the same cannot be allotted to

any public and no private ownership can be created on such

lands.

33. In the present case, if the hillock is allotted to 300

beneficiaries in an extent of Ac.10-00, certainly it would

amounts to creating private ownership on the natural resources

like hillocks, hill tops etc.

34. On the other hand, in terms of Articles 48-A and 51-A(g)

of the Constitution, it is the duty of the State to protect and

improve the environment and to safeguard the forests and wild

life of the country. The citizens of the country have

fundamental right to a wholesome, clean and decent

environment. Instead of protecting and preserving the natural

resources, the respondent-Tahsildar is proposing to allot the

same to landless poor under the scheme "Navaratnalu-

Pedalandariki Illu" which is in violation of Articles 48-A and

51-A(g) of the Constitution.

35. Time and again the Apex Court in Intellectuals Forum,

Tirupati Vs. State of A.P11 and Sarvepalli Ramaiah and

others vs. District Collector, Chittoor District12, the Apex

Court consistently held that tank beds and tank poramboke

(2006) 3 SCC 549

(2019) 4 SCC 500 MSM,J

cannot be converted into house sites as it is violative of Articles

48-A and 51(g) of the Constitution of India. In view of the law

declared by the Apex Court, the proposed allotment of hillock

without following the procedure contemplated under 15(2) of

B.S.O. is in total contravention of Articles 48-A, 51-A(g) and 21

of the Constitution of India.

36. India being a democratic republic, it is not open to the

Government of the day to arbitrarily give away hills and hillocks

for exploitation. Merely because the process of allotment of

house sites to houseless poor under the scheme „Navaratnalu

Pedalandariki Illu‟, that would not confer any immunity against

judicial scrutiny. Unless there are supervening public interest

considerations, hills and hillocks cannot be given away as

house site to houseless poor.

37. In recent decision of the Supreme Court reported in Lal

Bahadur Vs. State of U.P. and Others13. After tracing the

evolution of environmental jurisprudence, the Supreme Court

of India quashed the master plan whereby use of area in

question for green belt in the master plan was changed. If an

area has been earmarked as park in the lay-out or in the

master plan, conversion of the land for any other purpose is

normally not permitted. If man-made demarcation is given so

much importance in the laws relating to town planning and

development, certainly greater sanctity must be accorded to

(2018) 15 SCC 407 MSM,J

what was earmarked by Nature. The Supreme Court called the

parks as "gifts given by people to themselves". If such human

gifts have to be cherished, how much more value is to be given

to gifts given by Nature?

38. The petitioner in W.P.No.20185 of 2020 approached

National Green Tribunal and obtained an order from the

Tribunal (Southern Zone) Bench passed the following order in

O.A.No.42 of 2020 (SZ). During enquiry in the petition the sub-

committee is appointed and after hearing both parties, the

petition was disposed of with the following observations.

i) The report submitted by the Joint Committee appointed by this Tribunal received on 16.09.2020 is recorded and accepted and the objection raised by the applicant is also considered.

ii) The authorities are directed not to make any encroachment into the water bodies mentioned in the report and they are directed to keep the buffer zone from the Full Tank Level (FTL) while carrying out the housing scheme in the area of 10 cents selected by them from the unassessed waste land as per the revenue records in Sy.No.612 of Kuntrapakam Village, Tirupathi Rural Mandal of Chittoor District.

iii) The authorities are also directed not to make much destruction of the hillock while proceeding with the housing scheme without complying with necessary environmental study as to how far this will affect the environment before undertaking any further development in that area.

iv) While carrying out the housing scheme, the authorities are also directed to comply with all the environmental laws and also make all provisions for the purpose of implementing the Solid Waste Management Rules, 2016 and also treating of the sewage that is likely to be generated from the area in a scientific manner, without allowing the same to be discharged into the water bodies. Merely because, there is no water in the water bodies, it cannot be said MSM,J

that they are not water bodies. Even non-perennial water bodies are also expected to be maintained as they play a great role in protecting environment, as when water is available during rainy season it acts as a barrier to avoid flood in such areas. In many States on account of allowing such non-perennial river basin being encroached in the guise of development, has led to affecting the existing ecological system of that river basin, resulting in disaster and as such they are to be protected.

v) The authorities are at liberty to take action against encroachers into the Government land in accordance with law.

vi) Considering the circumstances, the parties are directed to bear their respective costs in the application.

vii) The Registry is directed to communicate this order to the official respondents by e-mail immediately for strict compliance.

39. A bare reading of the order would show that 10 cents of

land is proposed for allotment of house sites but not Ac.10-00,

may be due to mistake or otherwise, but it has not got it

rectified. In view of the directions issued, the hillock cannot be

converted into house sites with existing ecological and

biodiversity must be protected.

40. Undisputedly the land in Sy.No.612 of Kuntrapakam

Village is a hillock and the same is required to be protected

though no law for preservation of mountains is adopted in the

country except Forests Conservation Act. Further in view of the

effect on bio-diversity and ecologically it is necessary to

preserve such mountains as it will have its impact on the

climatic conditions. Mountain environments cover 27% of the

words land surface, and directly support the 22% of the world‟s

population who live within mountain regions. Low land people MSM,J

also depend on mountain environments for a wide range of

goods and services, including water, energy, timber, biodiversity

maintenance and opportunities for recreation and spiritual

renewal. Mountains provide for the fresh water needs of more

than half of humanity and are, in effect, the water towers of the

world. The World‟s mountains encompass some of the most

spectacular landscapes, a great diversity of species and habitat

types, and distinctive human communities. Mountains occur

on all continents, in all latitude zones, and within all the

world‟s principal biome types - from hyper-arid hot desert and

tropical forest to arid polar icecaps - and support a wide variety

of ecosystems. Mountain ecosystems are important for

biological diversity, particularly in the tropics and warmer

temperate latitudes. Isolated mountain blocks are often rich in

endemic species. As noted in the report of the Secretary-

General of the United Nations when he proclaimed 2002 as the

"International Year of Mountains", mountains harbour a

significant portion of distinct ethnic groups, varied remnants of

cultural traditions, environmental knowledge and habitat

adaptations. They host some of the world‟s most complex agro-

cultural gene pools and traditional management practices.

Mountain biodiversity plays a key role in the support of global

environmental, economic, social and cultural sectors through

connections to; invasive species, air pollution, climate change,

mining, hydropower, tourism, forests, agriculture. Therefore, MSM,J

the challenge is to sustainably manage mountain regions to

avoid degradation and avoid subsequent increases in poverty

and hunger.

41. Mountain ecosystems are an important source of

biological diversity, along with water and mineral resources

where mountains are ecosystems with a distinct identity just

like the flood plains, deltas, mangroves, wetlands, and deserts.

Mountain ecosystems are particularly fragile, subject to both

natural and anthropogenic drivers of change. Therefore, their

effective management is not only important for mountain

communities, but also for a sizeable proportion of the global

population.

 Ecosystems are of fundamental important to environmental functioning and sustainability, and they provide many goods and services critical to individuals and societies. Beyond their common characteristics of high relative relief and steep slopes, mountains are remarkably diverse and globally important as centres of biological diversity.

 Recent scientific opinion led by the Intergovernmental Panel on Climate Change (IPCC) is that global climate change is happening and will present practical c hallenges to local ecosystems. The analysis and predictions showing an increase in the magnitude of climate change with altitude (in terms of both temperature and variation in precipitation).

 Ecosystems in the mountains are being impaired and destroyed by a wide variety of human activities. The survival of the ecosystems and wildlife in the mountains is being threatened by human activities like timber harvesting, intensive grazing by livestock, and agricultural expansion into forest land.  Rapid and unsustainable economic and population growth in the mountainous regions is imposing increasing stress on the natural environment. As a result, environmental deterioration in mountains MSM,J

is driven by numerous factors, including deforestation, overgrazing by livestock, and the cultivation of marginal soils leading to soil erosion, landslides, and the rapid loss of habitat and genetic diversity.

 Forest ecosystems are stressed by habitat change and fragmentation, which occurs as humans sub divide forest plots into ever smaller and more isolated sections.

 Pollution can also stress forest trees, especially in urban, industrial, and heavily populated areas. Non-native fungal diseases and insect pests can severely stress forests and cause the effective extinction of previously dominant trees and threaten others.  Species in high altitude areas - especially in the transition zone between subalpine and alpine - are more vulnerable to climate change. In addition, the region‟s wetlands are being affected by the erratic weather observed in many parts of the region.  Invasive species that outcompete native species and synergistically interact with climate change to threaten native organisms. Further synergistic action between commercial harvesting and climate change will have detrimental impacts on subtropical and temperate timber forests.

 Environmental contamination - Nutrient enrichment from agricultural runoff could act synergistically with various factors due to increasing changes in biodiversity to enhance eutrophication in fresh water systems.

42. Proper management of mountain resources and the socio-

economic development of people need immediate action. But

the act of the respondents proposing to allot part of the hillock

i.e. mountain is having lot of effect on biodiversity and

ecosystem as discussed in the earlier lines.

43. Though several enactments were enacted by the

Parliament, but no act is brought into force to conserve

mountains to protect her claimate and biodiversity, ecosystem

except one or two acts with reference to Himalayas and Ladakh MSM,J

Autonomous Hill Development Council Act of 1995 (LAHDCA),

Eastern ghats no other enactments were passed.

44. In India, the risks associated with Devolution of power to

local communities is generally believed to be a good idea.

Among other things, it often enhances local incentives for

sustainable natural resource management. The Ladakh

Autonomous Hill Development Council Act of 1995 (LAHDCA),

which was passed by the Central government, resulted in a

devolution of power that for several reasons did not have the

desired effect. The LAHDCA limited the independence of the

local councils by requiring approval of plans and budgets by

the State government, while the Central government controls

most external funding. Thus, no other orders are passed by the

State or Central government to preserve or conserve mountains

to meet the needs of the public to maintain ecological balance,

to prevent degradation of mountains and to maintain

biodiversity. But several instructions were passed by UNO and

other organizations. Though UNO taken decision besides

passing instructions, the implementation in country is limited.

45. There is an instrument which is one of the Treaties and

other international conventions are binding upon states that

sign and ratify them, and along with what is understood to be

customary international law among nation states, are

considered to be "hard law"(Brownlie, 1990; Brownlie, 1970).

MSM,J

Enforcement however, is particularly problematic for many

international law instruments and norms, because there

is often no clear enforcement mechanism. In theory, parties to a

treaty or convention can prescribe compliance by other parties

through arbitration, an action before the International Court of

Justice or by using other institutionalized dispute resolution

mechanisms. The following hard-law treaties or conventions

have an important role to play in efforts to ensure the

conservation and sustainable development of mountain

ecosystems. Most of these conventions are "framework"

conventions. As such, they lay out objectives, overall

obligations and rights of the parties, and general parameters.

Framework conventions rely upon protocols and other

supplementary instruments to regulate the parties' activities

with regard to specific aspects of the instrument.

46. At the Fourth Meeting of the Conference of the Parties

(COP) to the Convention on Biological Diversity, held in

Bratislava in 1998, mountain ecosystems were listed as an item

for "in-depth consideration" in the Programme for Work for the

Seventh COP to be held in 2004. Article 8(j) of the Convention,

meanwhile, mandates protection of the traditional knowledge,

innovations and practices of indigenous and other local

communities. (vide Convention on Biological Diversity,

1992,14)

31 ILM 818 (1992) MSM,J

47. United Nations Framework Convention on Climate

Change prepared the Convention on Climate Change (CCC)

provides a normative framework for addressing the complex

processes that are causing global warming and other climatic

changes. It attempts to balance two seemingly incompatible

goals: 1) the need for industrialized countries to reduce human-

induced greenhouse gas emissions; and 2) the equally

compelling priority of developing countries to achieve socio-

economic development either through accelerated use of forest

products and fossil fuels, or through the transfer from

industrialized countries of clean production-focused financial

and technical resources. It addresses the general effects of

global warming on the global environment as a whole. It offers

minimal guidance for tackling the unique and possibly

devastating consequences of climate change for mountain

habitats and their human communities. By recognizing that

human activities have increased greenhouse gases and are

adversely affecting natural ecosystems, the CCC does provides

a normative starting point for recognizing the impact on

mountain environments. In addition, the CCC notes the special

vulnerability of specific biomes, including "fragile mountain

ecosystems".

48. Article 2 deals with "natural heritage" and is particularly

important for conserving mountain areas; it refers to inclusion MSM,J

of "geological and physiographical formations" and "natural

sites and precisely delineated areas." (vide United Nations

Framework Convention on Climate Change, 199215)

49. The Kathmandu Declaration on Mountain Activities,"

International Union of Alpinist Associations (UIAA) in its 44th

General Assembly held on 16 October 1982 resolved to adopt

ten principles and guidelines as a program for action. These

were included in Articles of Declaration averring, among other

things, that "There is an urgent need for effective protection of

the mountain environment and landscape;" "The cultural heritage

and dignity of the local population are inviolable;" and "The use

of appropriate technology for energy needs and proper disposal

of waste in the mountain areas are matters of immediate

concern."

50. United Nations Environment Programme (UNEP) culled

out Ecological Guidelines for Balanced Land Use, conservation

and Development in High Mountains to foster ecologically

sound development of mountain resources. Besides providing

guidelines for ecologically appropriate development programs, it

urges that any new laws or regulations include an

environmental impact assessment.

51. Draft Declaration of Principles on Human Rights and the

Environment (1994) comprehensively addresses the linkage

31 ILM 849 (1992) MSM,J

between human rights and the environment. The declaration

reaffirms that accepted environmental and human rights

principles include the right of each person to a secure, healthy

and ecologically sound environment. It highlights the

environmental dimensions of legally recognized human rights

such as the right to life, health and culture. It also describes

procedural rights, such as the right to participation that are

necessary for the realization of substantive human and

environmental rights.

52. Despite these instruments and policy based taken by the

regional level and international level, no purpose is being

served and in most of the cases, the State is following those

principles laid down in the instruments both regional and

international level though India is signatory to those

instruments or conventions.

53. If the issue is considered in human rights perspective, the

protection of environment is a human right. Article 25 of

universal declaration guarantees everyone a right toa standard

of living adequate for the health and well-being of himself and

of his family, including food, clothing, housing and medical care

and necessary social services, and the right to security in the

event of unemployment, sickness, disability, widowhood, old

age or other lack of livelihood in circumstances beyond his

control. Article 12 of International covenant on economic social MSM,J

and cultural rights deals with human rights to enjoy pollution

free environment. Article 12 is extracted hereunder for better

appreciation:

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

54. Thus, clause-2(b) obligates State parties to the covenant

to improve all aspects of environmental and industrial hygiene.

To implement those human rights guaranteed under Article 12

(2)(b) several covenant declarations are formulated, including

World Summit on sustainable development, 2002 and prepared

draft principles of human rights and the environment, which

are as follows :

"Draft Declaration of Human Rights and the Environment:

Preamble

Guided by the United Nations Charter, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Vienna Declaration and Program of Action of the World Conference of Human Rights, and other relevant international human rights instruments, MSM,J

Guided also by the Stockholm Declaration of the United Nations Conference on the Human Environment, the World Charter for Nature, the Rio Declaration on Environment and Development, Agenda 21: Programme of Action for Sustainable Development, and other relevant instruments of international environmental law,

Guided also by the Declaration on the Right to Development, which recognizes that the right to development is an essential human right and that the human person is the central subject of development,

Guided further by fundamental principles of international humanitarian law,

Reaffirming the universality, indivisibility and interdependence of all human rights,

Recognizing that sustainable development links the right to development and the right to a secure, healthy and ecologically sound environment,

Recalling the right of peoples to self-determination by virtue of which they have the right freely to determine their political status and to pursue their economic, social and cultural development,

Deeply concerned by the severe human rights consequences of environmental harm caused by poverty, structural adjustment and debt programmes and by international trade and intellectual property regimes,

Convinced that the potential irreversibility of environmental harm gives rise to special responsibility to prevent such harm,

Concerned that human rights violations lead to environmental degradation and that environmental degradation leads to human rights violations,

Declare the following principles :

Part I

1. Human rights, an ecologically sound environment, sustainable development and peace are interdependent and indivisible.

2. All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible.

MSM,J

3. All persons shall be free from any form of discrimination in regard to actions and decisions that affect the environment.

4. All persons have the right to an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs.

Part II

5. All persons have the right to freedom from pollution, environmental degradation and activities that adversely affect the environment, threaten life, health, livelihood, well-being or sustainable development within, across or outside national boundaries.

6. All persons have the right to protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems.

7. All persons have the right to the highest attainable standard of health free from environmental

8. All persons have the right to safe and healthy food and water adequate to their well-being.

9. All persons have the right to a safe and healthy working environment.

10. All persons have the right to adequate housing, land tenure and living conditions in a secure, healthy and ecologically sound environment.

11 . All persons have the right not to be evicted from their homes or land for the purpose of, or as a consequence of, decisions or actions affecting the environment, except in emergencies or due to a compelling purpose benefiting society as a whole and not attainable by other means. All persons have the right to participate effectively in decisions and to negotiate concerning their eviction and the right, if evicted, to timely and adequate restitution, compensation and/or appropriate and sufficient accommodation or land.

12. All persons have the right to timely assistance in the event of natural or technological or other human-caused catastrophes.

13. Everyone has the right to benefit equitably from the conservation and sustainable use of nature and natural resources for cultural, ecological, educational, health, MSM,J

livelihood, recreational, spiritual or other purposes. This Includes ecologically sound access to nature.

Everyone has the right to preservation of unique sites, consistent with the fundamental rights of persons or groups living in the area.

14. Indigenous peoples have the right to control their lands, territories and natural resources and to maintain their traditional way of life. This includes the right to security in the enjoyment of their means of subsistence.

Indigenous peoples have the right to protection against any action or course of conduct that may result in the destruction or degradation of their territories, including land, air, water, sea-ice, wildlife or other resources.

Part III

15. All persons have the right to information concerning the environment. This includes information, howsoever compiled, on actions and courses of conduct that may affect the environment and information necessary to enable effective public participation in environmental decision-making. The information shall be timely, clear, understandable and available without undue financial burden to the applicant.

16. All persons have the right to hold and express opinions and to disseminate ideas and information regarding the environment.

17. All persons have the right to environmental and human rights education.

18. All persons have the right to active, free, and meaningful participation in planning and decision- making activities and processes that may have an impact on the environment and development. This includes the right to a prior assessment of the environmental, developmental and human rights consequences of proposed actions.

19. All persons have the right to associate freely and peacefully with others for purposes of protecting the environment or the rights of persons affected by environmental harm.

20. All persons have the right to effective remedies and redress in administrative or judicial proceedings for environmental harm or the threat of such harm.

Part IV MSM,J

21. All persons, individually and in association with others, have a duty to protect and preserve the environment.

22. All States shall respect and ensure the right to a secure, healthy and ecologically sound environment. Accordingly, they shall adopt the administrative, legislative and other measures necessary to effectively implement the rights in this Declaration.

These measures shall aim at the prevention of environmental harm, at the provision of adequate remedies, and at the sustainable use of natural resources and shall include, inter alia,

collection and dissemination of information concerning the environment;

    prior assessment and control, licensing, regulation or
    prohibition                                           of

activities and substances potentially harmful to the environment;

 public participation in environmental decision-making;

    effective administrative and judicial remedies and
    redress                                              for

environmental harm and the threat of such harm;  monitoring, management and equitable sharing of natural resources;

    measures to reduce wasteful processes of production
    and                       patterns                    of
    consumption;
    measures aimed at ensuring that transnational
    corporations,                                   wherever

they operate, carry out their duties of environmental protection, sustainable development and respect for human rights;

    and
    measures aimed at ensuring that the international
    organizations                                       and

agencies to which they belong observe the rights and duties in this Declaration.

23. States and all other parties shall avoid using the environment as a means of war or inflicting significant, long-term or widespread harm on the environment, and shall respect international law providing protection for the environment in times of armed conflict and cooperate in its further development.

24. All international organizations and agencies shall observe the rights and duties in this Declaration.

MSM,J

Part V

25. In implementing the rights and duties in this Declaration, special attention shall be given to vulnerable persons and groups.

26. The rights in this Declaration may be subject only to restrictions provided by law and which are necessary to protect public order, health and the fundamental rights and freedoms of others.

27. All persons are entitled to a social and international order in which the rights in this Declaration can be fully realized."

55. Keeping in view all those principles and various

instrumental conventions both at regional and international

level in addition to Articles 48-A and 51-A(g) r/w Article 21, the

action of the respondent-Tahsildar to propose Ac.10-00 of land

on the hillock is in total contravention of the guidelines referred

above and various articles of the Constitution of India. Besides

degradation of climate which drastically effects the system of

biodiversity and mountains on account of converting hillock

into residential plots to allot the same to houseless poor under

the scheme "Navaratnalu-Pedalandariki Illu". At the same

time though a direction was issued to the Collectors not to

identify the hillocks for allotment of house sites, still the

respondent-Tahsildar is identified hillock reserved for

communal purpose for allotment of house site. Therefore, the

action of the respondent-Tahsildar is illegal, arbitrary and

violative of Articles 21, 48-A and 51-A(g) of the Constitution

besides regional and International instruments or convention MSM,J

on preservation and maintenance to Mountains, ecological

balance, biodiversity and to prevent degradation of climate.

56. In recent judgment reported in Director General (road

Development) National High-ways Authority of India vs.

Aam Aadmi Lokmanch and Others16, the Hon‟ble Supreme

Court held as follows:

"This Court is of the considered opinion that the expression "environment" and "environmental pollution" have to be given a broader meaning, having regard to Parliamentary intent to ensure the objective of the EPA. It effectuates the principles underlying Article 48A of the Constitution of India. The EPA is in essence, an umbrella legislation enacting a broad framework for the central government to coordinate with the activities of various central and state authorities established under other laws, such as the Water Act and Air Act. The EPA also effectively enunciates the critical legislative policy for environment protection. It changes the narrative and emphasis from a narrow concept of pollution control to a wider facet of environment protection. The expansive definition of environment that includes water, air and land "and the interrelation which exist among and between water, air and land, other human creatures, plants, micro-organisms and property" give an indication of the wide powers conferred on the Central Government. A wide net is cast over the environment related laws. The EPA also empowers the central government to comprehensively control environmental pollution by industrial and related activities".

AIR 2020 SC 3471 MSM,J

57. In Jitendra Singh Vs. Minsitry of Environment and

Others17, the Hon‟ble Apex Court held that "Protection of such

village commons is essential to safeguard the fundamental right

guaranteed by Article 21 of our Constitution. These common

areas are the lifeline of village communities, and often sustain

various chores and provide resources necessary for life. There

remains therefore no doubt that it is the responsibility of the

respondents to ensure the protection and integrity of the

environment, especially one which is a source for livelihood for

rural population and life for local flora and fauna.

58. In K.Santhanam vs. The District Collector,

Virudhunagar18, the learned Single Judge of the Madras High

Court held that "unless there are supervening public interest

considerations, hills and hillocks cannot be given away for

mining". It was also further observed that "Mountains, forests,

hills, hillocks and rivers are Nature‟s gifts and it is the duty of

the Government and the administration to ensure that they are

preserved for future generations. This principle of inter-

generational equity has been highlighted in a catena of cases.

At the same time, we cannot lose sight of the harm caused to

the present generation. It is not as if the benefits of exploitation

are equitably distributed among all. Invariably a miniscule

minority corners the benefits, while the burden falls on the rest.

Right to environment means that one has the right to retain the

2019 (17) SCALE 29

WP(MD) No.18575 of 2019, dated 26.04.2021 MSM,J

advantages and benefits conferred naturally on the

environment".

59. On account of proposal to allot house site on the hillock

which is a communal land for grazing cattle by the community

of Kuntrapakam Village, they are being deprived of their

livelihood which is a facet of right to life under Article 21 of the

Constitution of India. Similarly, right to environment is also

another facet of right to life guaranteed under Article 21 of the

Constitution of India. Since the material resources of the

community like forests, tanks, ponds, hillock, mountain etc.

are nature's bounty, maintaining delicate ecological balance,

they need to be protected for a proper and healthy environment

which enables people to enjoy a quality life which is the essence

of the guaranteed right under Article 21 of the Constitution. In

Hinch Lal Tiwari v. Kamala Devi (referred supra), the

Government, including the Revenue Authorities, having noticed

that a pond is falling in disuse, should have bestowed their

attention to develop the same which would, on one hand, have

prevented ecological disaster and on the other provided better

environment for the benefit of the public at large. Such vigil is

the best protection against knavish attempts to seek allotment

in non-abadi sites. Even if the present issue is considered in

the perspective of Hinch Lal Tiwari v. Kamala Devi (referred

supra), it is the duty of the revenue authorities to protect the

hillock which is nature‟s bounty to ecology and biodiversity MSM,J

converting hillock into house site, which is impermissible under

law. Though Respondent No.5 - Tahsildar has no obligation to

protect such hillock(s), as observed in Hinch Lal Tiwari v.

Kamala Devi (referred supra), such act is illegal and arbitrary.

60. Yet, another contention of learned senior counsel for the

petitioner is that, when the land is a communal land,

undisputedly i.e. for grazing cattle, it cannot be allotted to any

third party as house site either under scheme of „Navaratnalu

Pedalandriki Illu‟ or either under any under scheme, depriving

the community to enjoy the benefits of communal land even

after converting the same from communal land to Assessed

Waste Dry. In support of his contention, learned counsel has

drawn attention of this Court In Jagpal Singh & Others v.

State of Punjab & Others19, at paragraph No.4, the Apex Court

held as follows:

"The protection of common rights of the villagers were so zealously protected that some legislation expressly mentioned that even the vesting of the property with the State did not mean that the common rights of villagers were lost by such vesting. Thus, in Chigurupati Venkata Subbayya v. Paladuge Anjayya20, this Court observed :

"It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. The rights of the community over the suit lands were not created by the landholder. Hence those rights cannot be said to have been abrogated by Section 3) of the Estates Abolition Act."

AIR 2011 SC 1123

1972(1) SCC 521 (529) MSM,J

61. In view of the principle laid down by the Supreme Court

in the judgment referred above, particular piece of land is

earmarked for public or communal purpose, it shall not be

alienated even after change of classification of the land.

62. If the principle laid down in the above judgment to the

present facts of the case, it is an undisputed fact that, it is a

communal land, but the State proposed to allot the same to

houseless poor under the scheme „Navaratnalu Pedalandariki

Illu‟, which is impermissible under law. On this count also, the

respondents cannot be allowed to allot house site to landless

poor on the hillock to the disadvantage of community of

Kuntrapakam Village, Tirupati Rural Mandal, Chittoor District.

63. In view of the law laid down by the Hon‟ble Apex Court

and upon regional and international instruments, Draft

Declaration of Human Rights and Environment, passed by

several regions and United Nations Organization to which India

is signatory, the State in utter violation of the guidelines and

the law laid down by various Courts referred above including

law laid down in M.C.Mehta's, Hinchlal Tiwari's and other

judgments referred supra, the proposal of Respondent No.5 to

allot Ac.10-00 of site on the hillock in contravention of

G.O.Ms.No.510, dated 30.12.2019 to the houseless poor under

the scheme "Navaratnalu- Pedalandariki Illu" is illegal,

arbitrary and violative of Articles 14 and 21 of the Constitution MSM,J

of India. Therefore, the act of the respondents, more

particularly, Respondent No.5-Tahsildar is declared as illegal,

arbitrary and consequently directed the Respondent No.5 not to

allot house site under the scheme "Navaratnalu-

Pedalandariki Illu" or any other scheme in any extent on the

hillock in Sy.No.612 of Kuntrapakam Village. Accordingly, the

point is answered in favour of the petitioner and against the

respondents.

64. In the result, W.P.No.20185 of 2020 is allowed declaring

the action of respondents in taking steps/proposal for

conversion of Yetteramma Gutta @ Yetteri Gutta @ Siddeswara

Gutta hillock comprising Ac.131-45 cents in Sy.No.612 of

Kuntrapakam Village, Tirupati Rural Mandal, Chittoor District

for eventual allotment of house site under the programme of

"Navaratnalu-Pedalandariki Illu" as illegal and arbitrary,

consequently directed the respondents, more particularly

Respondent No.5-Tahsildar not to allot house site to houseless

poor on Yetteramma Gutta @ Yetteri Gutta @ Siddeswara Gutta

hillock in Sy.No.612 of Kuntrapakam Village, Tirupati Rural

Mandal, under the programme of "Navaratnalu-

Pedalandariki Illu" or under any other scheme.

65. In view of my findings in W.P.No.20185 of 2020,

W.P.No.7988 of 2020 is allowed declaring the action of

respondents in taking steps/proposal for conversion of MSM,J

Yetteramma Gutta @ Yetteri Gutta @ Siddeswara Gutta hillock

comprising Ac.119-45 cents in Sy.No.612 of Kuntrapakam

Village, Tirupati Rural Mandal, Chittoor District for eventual

allotment of house site under the programme of "Navaratnalu-

Pedalandariki Illu" as illegal and arbitrary, consequently

directed the respondents, more particularly Respondent No.5 -

Tahsildar not to allot house site to houseless poor on

Yetteramma Gutta @ Yetteri Gutta @ Siddeswara Gutta hillock

in Sy.No.612 of Kuntrapakam Village, Tirupati Rural Mandal,

under the programme of "Navaratnalu-Pedalandariki Illu" or

under any other scheme. No costs.

As a sequel, miscellaneous application, pending, if any,

shall also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

Date: 28.10.2021

Note:

LR copy to be marked b/o KA/Sp