Andhra Pradesh High Court - Amravati

Yerramchetti Bharathi vs The State Represented By ... on 18 November, 2022

        HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

             Writ Petition Nos.11822 of 2022, 6118 of 2021 and
                   20983, 22701, 23320 & 24285 of 2020

W.P.No.11822 of 2022

Between:

Yerramchetti Bharathi and another                        .. Petitioners

Vs.

The State represented by Principal Secretary,
Panchayat Raj & Rural Development,
Secretariat, Velagapudi Village, Thulluru Mandal,
Guntur District and others                               .. Respondents

DATE OF JUDGMENT PRONOUNCED: 18.11.2022

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to Yes/No see the fair copy of the Judgment?

__________________________________ VENKATESWARLU NIMMAGADDA, J

NV,J W.P.No.11822 of 2022 & batch

*THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

+Writ Petition Nos.11822 of 2022, 6118 of 2021 and 20983, 22701, 23320 & 24285 of 2020

% 18-11-2022

W.P.No.11822 of 2022

# Yerramchetti Bharathi and another .. Petitioners

Vs.

$ The State represented by Principal Secretary, Panchayat Raj & Rural Development, Secretariat, Velagapudi Village, Thulluru Mandal, Guntur District and others .. Respondents

<GIST:

>HEAD NOTE:

! Counsel for petitioners : Sri Venkateswarlu Kolla

^ Counsel for respondent Nos.1 to 3 : The Government Pleader for Panchayat Raj

^ Counsel for respondent Nos.4 & 5 : Sri I. Koti Reddy

? CASES REFERRED :

1) (2006) 3 SCC 549

2) (2001) 6 SCC 496

3) (2021) 6 ALT 418 (DB)

NV,J W.P.No.11822 of 2022 & batch

THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

WRIT PETITION Nos.11822 of 2022, 6118 of 2021 and

20983, 22701, 23320 & 24285 of 2020

COMMON ORDER:

Since all these writ petitions are identical and the issues involved

in these cases are similar, this Court deems it appropriate to dispose of

them by way of this common order.

2. Heard learned counsels for the petitioners, learned Government

Pleader for Panchayat Raj, and learned standing counsel for

Grampanchayats.

3. For the sake of convenience and to avoid ambiguity in the

discussion, the facts in W.P.No.11822 of 2022 are taken into

consideration as under:

The present writ petition is filed seeking a Writ of Mandamus

declaring the action of the respondents in trying to make construction of

office buildings for Village Secretariat, Wellness Centre and Rytu

Bharosa Kendram in the land in Survey No.33 of Vedullavalasa H/O.

Kovvur Village, Rolugunta Mandal, Visakhapatnam District, as illegal,

arbitrary and contrary to the law laid down by the Hon'ble Apex Court

NV,J W.P.No.11822 of 2022 & batch

as well as this Court for conversion of water tanks and water bodies into

any constructions.

4. Learned counsel for the petitioners contended that the petitioners

are agriculturists/ryots of Vedullavalasa Village and doing agricultural

operations in respect of their lands having an irrigation source to their

lands through Pothulavari Cheruvu/tank. The said Pothulavari Cheruvu

is a big natural tank and catering the needs of village as irrigation source

to so much agricultural lands/notified ayacut lands of the ryots apart

from other professional needs of the villagers i.e., for washing of clothes

by rajakas and drinking water needs of the livestock of the villagers.

The tank has one feeder channel, which runs from adjacent hill areas of

the village through the land in Survey No.33 of Vedullavalasa Village.

It is a natural course/channel/feeder channel to Pothulavari

Cheruvu/Tank. He further contended that he filed revenue records

consisting of 1B Register dated 05.04.2022 and a copy of adangal dated

09.03.2022 wherein the land in Survey No.33 is shown as an extent of

Ac.1.00 cents and notified as Government land and classified the nature

of land as field channel. As per the revenue records, Survey No.33, in

which office buildings are proposed to be constructed, is

classified/earmarked as water channel (gorji). As such, it cannot be

converted to any other purpose. He further contended that there are no

NV,J W.P.No.11822 of 2022 & batch

conversion proceedings of subject land into non-agricultural purposes

under the provisions of the Andhra Pradesh Agricultural Land

(Conversion for Non-Agricultural Purposes) Act, 2006 (for short, 'the

Act'), which is mandatory under the provisions of said Act before any

constructions. Hence, the proceedings issued by the District Collector

dated 20.05.2020 for construction of the office buildings at subject land

in Survey No.33, which are come under the usage of semi public usage,

as illegal and liable to be set aside and the proposed construction cannot

be allowed in the subject land, which violates provisions of the Andhra

Pradesh Water, Land and Trees Act, 2002 (for short, 'the Walta Act') as

well as law laid down by the Hon'ble Apex Court and this Court. He

also contended that this Court after prima facie satisfaction, granted

interim direction, and because of the same, no construction is being

carried out till today.

5. Learned Standing Counsel filed a vacate stay petition along with

a counter seeking to vacate the interim order dated 26.04.2022 and he

also filed documents consisting of resolution of Gram Panchayat and a

letter addressed by the Assistant Executive Engineer to the 4th

respondent herein and photographs of the proposed construction in the

subject land. He contended that it is true that the land as per the revenue

records, as claimed by the petitioners, which is in Survey No.33 is

NV,J W.P.No.11822 of 2022 & batch

classified as gorji, which means that field channel/Kaluva, which runs

from the hill track to Pothulavari tank, which is a natural course and

feeder channel. Moreover, the said tank is catering the needs of

irrigation sources to the agricultural lands apart from other professional

needs of the villagers. He emphasized that the extent of land in Survey

No.33 is Ac.1.00 cents and the subject channel runs from the hill track

to Pothulavari Cheruvu through the land in Survey Nos.33, 40 and 187.

In fact, there is a huge vacant site available in Survey No.33, between R

& B road and this channel, which runs through part of the land in

Survey No.33. Therefore, the said vacant site was identified by the

authorities, which is suitable for construction of above stated office

buildings out of Ac1.00 cents of land leaving an extent in which area the

field channel is flowing. As such the contention of the petitioners that if

office buildings are constructed, it will obstruct the free flow of field

channel and cause damage to the crops in their lands, is only invented to

file this writ petition only. Moreover, it will obstruct water feeding to

the tank since it is only a field channel to the tank is not true and correct.

As per the letter addressed by the Assistant Executive Engineer,

Kothakota Section, Kothakota to the 4th respondent herein, wherein he

stated that the said Pothulavari tank is notified as a minor irrigation tank.

It has an ayacut of 148 acres and the present channel runs through the

lands in Survey No.33. In fact, there is a gap of 1.5 meters between the

NV,J W.P.No.11822 of 2022 & batch

proposed construction and the water flow area. As such, it may not

obstruct the flow of water to the subject tank i.e., the Pothulavari tank.

Because of the said proceedings, there is no possibility of obstruction to

the flow of the water through the feeder channel and there is no

submersion of the village in this channel. He further contended that

since there is no other suitable land available in the village, it was

explicitly identified and earmarked for such construction as it is abutting

to the R & B road and Government land, and Gram Panchayat passed a

resolution on 25.04.2020 for construction of the subject buildings.

Therefore, the writ petition is liable to be dismissed.

6. Having regard to the contentions and material placed by both the

learned counsels, it is an admitted fact that the land in Survey No.33 is

classified as a natural water course/field channel (vanka) to the

Pothulavari Cheruvu, which is a minor irrigation tank i.e., Pothulavari

Cheruvu/tank and which is catering the irrigation source to the notified

ayacut of 148 acres apart from other needs of villagers. It is also

admitted that the revenue records also show that it is only a feeder

channel/field channel and also notified as Government land. Further,

the subject land is not converted for non-agricultural purposes, which is

mandatory as per the provisions of the Act to make any constructions.

The other contention of the petitioners that the proposed conversion for

NV,J W.P.No.11822 of 2022 & batch

construction of RCC Buildings is also in violation of the provisions of

the Walta Act is also to be considered. In fact, the proposed structure

cannot be allowed on the land, which is classified as water body/water

course.

7. The contention of learned Standing Counsel that since it is a

vacant site and is abutting to the R & B road and the non-availability of

any other Government land in a particular village and it is very much

suitable for the construction of office buildings and may not cause any

obstruction to the free flow of the water since there is 1.5-metre distance

between the natural field channel to the proposed structures is not

sustainable, in view of the law laid down by the Hon'ble Apex Court in

Intellectuals Forum, Tirupathi Vs. State of A.P. and Others1, wherein

it is held at paragraph Nos.82, 83, 84, 86 and 96 as under:

"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, and 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

(2006) 3 SCC 549

NV,J W.P.No.11822 of 2022 & batch

Constitution and also the various laws enacted by Parliament and the State Legislatures.

83. 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 protection and related infrastructure. These requirements are growing in the context of the rapid pace of urbanization, increasing migration from rural to urban centres in search of livelihood, the mismatch 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 the sustainable development of habitat in the country, with a view to ensuring the equitable supply of land, shelter and services at affordable prices.

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 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, 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 to secure "our common future". In pursuit of development, the focus has to be on the sustainability of development and policies towards that end must 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

NV,J W.P.No.11822 of 2022 & batch

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 preservation of natural resources have been given a status of a fundamental right and brought under Article 21 of the Constitution. This apart, the directive principles of State policy and 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.

96. 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 Bodeddulu vanka needs to be cleared and revitalized. A small check dam at Malapalli to be removed to ensure the free flow and supply to the tank."

8. In Hinch Lal Tiwari Vs. Kamala Devi2, in paras 12 and 13 of its

judgment, the Hon'ble Supreme Court held as under:

"12. On this finding, the High Court should have confirmed the order of the Commissioner. However, it proceeded to hold that considering the said report, the area of 10 biswas could only be allotted, and the remaining five biswas of land, which still has the character of a pond, could not be allotted. In our view, sustaining the impugned order of the High Court is difficult. There is a

(2001) 6 SCC 496

NV,J W.P.No.11822 of 2022 & batch

concurrent finding that a pond exists, and the area covered by it varies in the rainy season. In such a case, no part of it could have been allotted to anybody for the construction of the building or any allied purposes.

13. It is essential to notice that the material resources of the community, like forests, tanks, ponds, hillocks, mountains etc. are nature's bounty. They maintain a 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 to develop the same which would, on the 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."

9. In Yegireddi Radha Vs. Manal Praja Parishad Development

Officer3, in paras 12 and 13 of the judgment, a Division Bench of this

Court held thus:

"9. It is nobody's case that such conversion had done before the construction of Village Secretariat Building/Grama Sachivalayam Building, Rythu Bharosa Kendram, Health Sub- Centre/Health and Wellness Centre in Survey No. 50-3 was undertaken. On the other hand, it is contended various constructions i.e., school, veterinary hospital etc., were already standing in Survey No. 50-3 and accordingly, the construction of Village Secretariat Building/Grama Sachivalayam Building, Rythu Bharosa Kendram, Health Sub-Centre/Health and Wellness Centre was undertaken in the said site. We are of the opinion where the land in question is classified as 'tank', the mere existence of other constructions thereon cannot be a justification to permit new constructions to be made in the survey number classified as tank'. Furthermore, no permission to make such construction had been obtained from the appropriate authorities including 3rd respondent herein. Accordingly, we believe that respondent Nos. 12 and 14

(2021) 6 ALT 418 (DB)

NV,J W.P.No.11822 of 2022 & batch

had acted contrary to the law in undertaking unauthorised construction of Grama Sachivalayam and other buildings in Survey No. 50-3, which is classified as tank land.

10. The Writ Petition is disposed of directing that the respondents shall desist from continuing further constructions in Survey No. 50-3 of Uddavolu village, which is classified as tank land. In the event, the respondents choose to shift the site of the buildings from Survey No. 158 of Uddavolu village, it shall be open to the said respondents to approach the 3rd respondent for necessary permission and allotment of any other plot in accordance with law."

10. The law laid down by the Hon'ble Apex Court is followed by this

Court and upheld the ratio in a catena of judgments. Therefore, under

these present circumstances, this Court has no other option except to

follow the same to safeguard the vanka/channel in question. However,

due to the persistent developmental activities over a long time, much of

the natural resources of the lakes and tanks have been lost and

considered irreparable. This, though regrettable, is beyond the power of

this Court to rectify. It is true that the tank, as well as the field channel,

are communal property, and the State authorities are trustees to hold and

manage such properties for the benefit of the community, and they

cannot be allowed to commit any act or omission, which will infringe

the rights of the community and alienate the property to any other