Gondu Venkata Ramana Murthy vs The State Of Andhra Pradesh
2022 Latest Caselaw 2353 AP

                HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                             W.P.No.6987 of 2022

ORDER:

The petitioners are residents of Ampolu Gram Panchayat, Gara

Mandal, Srikakulam District.

2. The official respondents have commenced construction of a

Grama Sachivalayam building and a Rytu Bharosa Kendram building in an

extent of Ac.16.90 cents of land in Sy.No.534-1 of the said village. This is

objected to by the petitioners on the ground that the said construction is

being carried out in the tank bed area of a public water tank and the

same is not permissible on account of the judgment of the erstwhile High

Court of A.P. in Kasireddy Bhaskara Reddy vs. Principal Secretary

to Government (Revenue), Government of A.P., Hyderabad1.

3. The 4th respondent-Panchayat Secretary of the Gram

Panchayat had filed a counter affidavit. In this counter affidavit, it is

stated that the Government had sanctioned construction of Grama

Sachivalayam building and Rytu Barosa Kendram building for Gram

Panchayat. Thereupon, the land in Sy.No.534-2 had been allotted for

construction of the two buildings and that the construction was taken up

on a resolution passed on 16.11.2020. The construction has come to the

stage of slab level in both the buildings. The 4th respondent submits that

about Ac.16.90 cents of land in Sy.No.534-2 has been recorded as Sarkar-

Poramboke,, Brahmagundam Cheruvu. However, as there is no Ayacut

under the tank and this tank is abandoned without any water spread, the

construction of the said buildings would not affect anybody. The 4th

2007 (4) ALT 759 2 RRR,J W.P.No.6987 of 2022

respondent also took the stand that various Government buildings, such

as, Primary Health Centre, DCCB Bank, Veterinary Hospital, ZP High

School and Bus Shelter have already been constructed in the tank area.

Further, R & B road has also has been laid through this tank area. The 4th

respondent contends that on account of the said developments, further

construction cannot be stopped.

4. The petitioner has also produced a Google map to show that

constructions are being made within the tank bed area. In any event, the

4th respondent itself has admitted that the impugned constructions are

being carried out in the tank bed area.

5. The erstwhile High Court of Andhra Pradesh in Kasireddy

Bhaskara Reddy vs. Principal Secretary to Government

(Revenue), Government of A.P., Hyderabad held as follows:

16. Thus, the affidavits of the officers concerned clearly reveal that they have no idea whatever on the issue whether the site on which the theatres were proposed to be constructed was in fact part of FTL of Patel Cheruvu or not and the State Government solely based on the NOCs given by them allowed the appeal. The perfunctory manner in which the Government has considered the issue clearly shows that it has not sensitized itself to the need to protect water bodies in order to preserve and maintain ecological balance. It is a matter of grave concern that people in their quest for earning more and more money are destroying the nature.

They are denuding forests, they are destroying wild life, they are flattening hills to extract minerals and they are encroaching into the precious water bodies making them vanish. The executive Government does not seem to have woken up from the hibernation and their supine indifference is threatening the very survival of livingbeings on the earth. Unless the State realizes its 3 RRR,J W.P.No.6987 of 2022

responsibilities at least at this late hour, the situation, we are afraid, will become irretrievable.

17. While emphasizing on the need to protect the water bodies by the State, the Supreme Court in Intellectuals Forum, Tirupathi v. State of A.P. [2006 (2) ALT 67 (SC) : 2006 (2) SCJ 293 : (2006) 3 SCC 549 : AIR 2006 SC 1350.] held as under:

"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."

19. However, having regard to the facts and circumstances, we direct respondent Nos. 1 to 7 to take every possible precaution to prevent constructions on water bodies in the twin cities and direct respondent No. 1, Government of Andhra Pradesh, to take such steps as to protect and preserve the water bodies in the whole of the State...

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6. It would also be apposite to take into account the binding

directions and observations of the Hon'ble Supreme Court in

Intellectuals Forum v. State of A.P.,2

"76. The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country [33 Cali 419] also known as Mono Lake case [33 Cali 419] 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 on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise 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

(2006) 3 SCC 549 5 RRR,J W.P.No.6987 of 2022

on governmental authority are often thought to be 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.

82. Article 48-A of the Constitution mandates that the State shall endeavour to protect and improve the environment to safeguard the forests and wildlife of the country. Article 51-A of the Constitution enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife 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 and also the various laws enacted by Parliament and the State Legislatures.

84. 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 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, 6 RRR,J W.P.No.6987 of 2022

without an inkling as to the substance of their end results. This inevitably leads 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.

86. 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. This apart, the directive principles of State policy as also the fundamental duties enshrined in Part IV and Part IV-A of the Constitution respectively also stress the need to protect and improve the natural environment including the forests, lakes, rivers and wildlife and to have compassion for living creatures."

7. These two judgments are to the effect that water bodies

need to be protected and that even water bodies, which have been

abandoned or filled up, need to be revived and restored rather than

allowed to be used for any other purpose. The above view was taken

keeping in mind the necessity to restore water bodies to ensure that the

ecological balance of the area is restored.

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8. In any event, the directions of the Hon'ble Supreme Court

are binding on this Court as well as the official respondents. In view of the

peremptory directions of the Hon'ble Supreme Court in there cannot be

any construction in the tank bed area of a public water body.

9. Accordingly this writ petition is allowed directing the

respondents to stop all further constructions and to remove the

constructions made for the Grama Sachivalayam and Rytu Bharosa

Kendram at the earliest. The 4th respondent is also further directed to

ensure restoration of the tank. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand,

closed.

_________________________ R. RAGHUNANDAN RAO, J.

5th May, 2022 Js.

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                                      W.P.No.6987 of 2022




      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




                W.P.No.6987 of 2022




                   5th May, 2022
Js.