IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
W.P. Nos. 24566, 25167 of 2017 and W.P. (PIL) (SR) No. 159685 of 2017
Decided On: 13.09.2019
Chatla Adam and Ors.
Vs.
Principal Secretary, Irrigation Department, Amaravathi and Ors.
Hon'ble Judges/Coram: C. Praveen Kumar, Actg. C.J. and M. Satyanarayana Murthy, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Y. Nagi Reddy
For Respondents/Defendant: G.P.
ORDER
C. Praveen Kumar, Actg. C.J.
1. W.P. No. 25167 of 2017 is filed seeking issuance of writ of mandamus declaring the action of Devarapalli Gram Panchayat (9th respondent) in undertaking the works under Neeru-Chettu programme and thereby preventing the petitioners from conducting agricultural operations in the lands held by them in an extent of Ac. 06.90 cents in Sy. No. 28 of Devarapalli village, Parchuru Mandal, Prakasam District by declaring the proceedings of the Tahasildar, Parchuru Mandal (7th respondent) under Land Encroachment Act vide RC.DT/360/2015 dated 19.09.2016 as illegal, arbitrary, discriminative and violative of Articles 14, 19, 21 and 300-A of the Constitution of India.
2. Writ Petition No. 24566 of 2017 also came to be filed by the petitioners seeking issuance of writ of mandamus declaring the action of the very same respondent in undertaking the works of Neeru-Chettu programme and preventing the petitioners from conducting agricultural operations in the lands held by them to an extent of Ac. 22.00 in Sy. No. 159/1 of Devarapalli village, Parchuru Mandal, Prakasam District by declaring the proceedings of the Tahasildar, Parchuru Mandal (7th respondent) under Land Encroachment Act vide RC.DT/360/2015 dated 19.09.2016 as illegal, arbitrary, discriminative and violative of Articles 14, 19, 21 and 300-A of the Constitution of India.
3. Writ Petition (PIL) SR. No. 159685 of 2017 is filed by one Gandu Subba Rao resident of Devarapalli village, to declare the action of the respondents in not protecting the water body (Krishnam Raju Cheruvu) of Devarapalli village situated in Sy. No. 159/1 to an extent of Ac. 39.97 cents and allowing the encroachments to come up as wholly illegal, arbitrary and without jurisdiction and consequently to direct the respondents to protect the water body.
4. Since all the three petitions are interconnected and issue involved in all the three petitions is one and the same, they are being disposed of by this common order.
5. As the facts in W.P. No. 25167 and W.P. No. 24566 of 2017 are same, the W.P. No. 25167 of 2017 is taken as a lead petition for deciding the issue involved in these matters.
6. The petitioners belong to S.C. community and are landless poor persons. In the year 1976, the Tahasildar, Chirala Taluka issued proceedings in favour of the petitioners granting permission to cultivate lands in Sy. No. 28 of Devarapalli village, Parchuru Mandal, Prakasam District. Since then the petitioners have been cultivating the land without any interruption by raising chilli, cotton and groundnut. It is said that the pattas, which were given to the petitioners, were burnt in a major fire accident occurred to the huts of the petitioners in the year 1979. It is said that under various schemes, the Government granted permissions to the petitioners to cultivate the lands. Since then the petitioners have been paying cist to the Government and crop loans were also taken from the Bank and the same were waived by the Government. While things stood thus, the upper caste people in the village, are alleged to have hatched a plan to get evict the petitioners from the lands and by forming Sri Sai Rural Development Voluntary Organization made several representations to the authorities to evict-the petitioners from the land on the ground that the said land is required for the drinking water purpose. It is said that the Revenue Divisional Officer submitted a report to the 3rd respondent stating that eligible occupants be allowed to cultivate the lands as they have been doing so since 15 years. W.P. No. 18894 of 2001 which was filed by the said voluntary organization, came to be dismissed basing on the report of the 7th respondent. Again in the year 2015 they tried to dispossess the petitioners with the help of the respondents for restoration of the land under Neeru-Chettu programme, which lead to filing of W.P. No. 17380 of 2015 seeking a direction to the respondent not to dispossess the petitioners from the subject lands i.e., Sy. No. 159/1 and 28 of Devarapalli village. On 16.06.2015, this Hon'ble Court directed the authorities not to interfere with the possession of the petitioners except in accordance with due procedure laid down by law. But, the respondents tried to dispossess the petitioners from the subject lands without following the procedure. Aggrieved by the same, the petitioners filed Contempt Petition-No. 1966 of 2016, which is pending for consideration.
7. While things stood thus, a show cause notice under Section 7 of the Land Encroachment Act, came to be issued to the petitioners seeking their explanation. Without taking into consideration the explanation offered, the 7th respondent issued the impugned proceedings dated 19.09.2016, directing the petitioners to evict the land. It is pleaded that the same is contrary to the counter filed by the 7th respondent in W.P. No. 17380 of 2015. It is averred that the respondents 7 and 9 started digging the lands in Sy. No. 159/1 forcibly by getting Section 144 Cr.P.C., imposed and with the help of police personnel in the village. All the petitioners were arrested and taken to different police stations, thereby allowing the upper caste people to take possession of the subject land. The averments in the remaining paras referred to the high-handed action of the authorities in trying to evict the SCs & STs without following the procedure contemplated under law which is being done at the instance of the upper caste people in the village. The averments in the counter filed by the 7th respondent in W.P. No. 17380 of 2015 show that it is Grampanchayat which is competent to remove the encroachments as per G.O. Ms. No. 188, but contrary to it, the 6th and 7th respondents are taking coercive steps in preventing the petitioners to enter the petitioners' land. Hence, the present Writ Petition is filed questioning the action of the 9th respondent in preventing the petitioners from conducting the agricultural operations by the petitioners in Sy. Nos. 159/1 and 28 of Devarapalli village, Parchuru Mandal as violative of Articles 14, 19, 21 and 300-A of the Constitution of India.
8. A counter came to be filed by the Collector and District Magistrate, Ongole disputing the averments made in the affidavit filed in support of the writ petition. It is stated that the Assistant Director, Survey and Land Records, Ongole was directed to determine the extent of land which falls within the FTS limits of the subject tank and report compliance immediately. Further, the Superintending Engineer, Irrigation, Ongole, was directed to take immediate steps to construct a bund to ensure that the subject tank is capable for storing water during the rainy season, up to FTL limits and submit report immediately. It is submitted that the land admeasuring Acs. 39.37 in Sy. No. 159/1 of Devarapalli village of Parchur Mandal, wherein the Krishnam Raju cheruvu is located, was measured, boundaries were fixed and shown to the Irrigation Department on 23.09.2017 by the Deputy Inspector of Survey. An administrative sanction was accorded by the District Collector vide proceedings dated 23.09.2017 for formation of a bund to Krishnam Raju cheruvu, Devarapalli village, Parchur Mandal at an estimated cost of Rs. 27.35 lakhs under Neeru- Pragathi programme and the work was assigned to the Executive Engineer, O&M Division, Addanki, for execution. The Superintending Engineer, Irrigation, Ongole also accorded technical sanction for the work, at an estimated cost of ` 26 lakhs. The tenders were called for inviting bidders. Having regard to the above, this common counter, which was filed in the month of October, 2017 states that if three months time is granted a bund would be constructed to the subject tank.
9. In the counter filed on 10.09.2017 it is stated that as per the village revenue records of Devarapalli village, the total land measuring an extent of Ac. 39.37 cents in S. No. 159/1 and Ac. 6.98 in S. No. 28 are classified as Krishnam Raju Tank poramboke and Peddirajukunta poramboke respectively. The Panchayat Secretary, Devarapalli submitted a representation to the Tahasildar, Parchur stating that on 07.04.2015 the panchayat has resolved to survey the Krishnam Raju tank and as per his request, a Mandal Surveyor was deputed to survey the land and fix the boundaries. Further, on 15.05.2015 the Panchayat also resolved to develop the said tank and to desalt the tank under Neeru-chettu programme to meet the scarcity of water during the summer. It is stated that one Palathoti Manikya Rao and 45 others filed W.P. No. 17380 of 2015 against the State of A.P., and three others seeking to declare the action of the respondents in interfering with the petitioners agricultural lands and trying to dispossess without due process of law as illegal and arbitrary, on that this Court passed an interim order on 16.06.2015, directing the respondent/authorities to verify as to the persons in possession of the subject land and if they are found to be so, the respondent/authorities were directed not interfere with their possession, except in accordance with the due procedure laid down by law. Pursuant to the said orders, the Tahasildar, Parchur issued Notice u/s. 7 of the A.P. Land Encroachment Act, 1905 to all the 46 petitioners therein and after receiving the explanation, the then Tahasildar issued notice u/s. 6 of the A.P. Land Encroachment Act and later issued orders dated 19.09.2016 evicting the writ petitioners from the tank poramboke land of Krishnam Raju kunta in Sy. No. 159-1 of Devarapalli village and that of Peddirajukunta in Sy. No. 28. The writ petitioners were evicted in both the water bodies and a board was also erected on 21.09.2016 to the effect that the land in question belong to the Government. Further, the Panchayat also resolved to request the DEE, RWS, Parchur to prepare estimates and accord technical sanction for development and formation of bunds for Krishnam Raju. The granting of ` 1,00,000/- by the AEE, RWS, Parchur towards development of tank is denied stating that the Krishnam Raju tank is only drinking water tank and that the source of canal flow either from NSP or KWD canals to fill the said tank and the water stored in the said tank was not sufficient to cater the needs of the village and that the groundwater was also not fit for consumption. The Deputy Executive Engineer, RWS further reported that technical sanction was accorded for development of the Krishnam Raju tank by forming bunds. It is contended that on 22.07.2017 CPI leaders along with 20 members visited Krishnam Raju tank and removed the warning board erected by the Tahasildar, Parchur and in that regard a case in Cr. No. 45 of 2017 was also registered. Further, the National Green Tribunal issued an order on 17.08.2017 in Application No. 175 of 2017 (SZ) in which the respondents are directed to maintain status quo till 19.09.2017 and posted the matter to 19.09.2017. In strict compliance of the orders, all the measures were taken to maintain status quo. Further the High Court has also issued interim order on 22.08.2017 in the PIL directing that the respondents shall protect the Krishnam Raju cheruvu tank and ensure that no person enters or use the subject tank for any purpose and the water in the said tank is used only to meet the drinking water requirements of the village. In obedience to the said orders, directions were issued to the police and revenue officials for taking all preventive measures in protecting the tank. Finally it is submitted that the encroachers were evicted from the land after following due process of law and handed over the same to the gram panchayat. Further, per the orders of the High Court, steps were also taken to protect the land. Hence, prays to dismiss the writ petition.
10. Instructions received from the office of Collector, Prakasam District dated 31.03.2019 shows that with regard to allotment of land to the encroachers of S. No. 159/1 of Krishnam Raju cheruvu under land purchase scheme, the National Commission for Scheduled Castes requested the Collector vide letter dated 09.08.2017 to take steps for allotting them alternate sites for cultivation. As per the guidelines (i) only landless agricultural women labourers of SC households who do not own or possess any land are eligible (ii) in order to select the landless beneficiaries detailed verification must be done for all applicants in order to verify if any lands are assigned/allotted under the Land Ceiling Act, Tenancy Act, Inam Abolition Act or through the Land Purchase Scheme earlier where land was purchased by them but not yet registered (iii) only those families which have an annual income of less than ` 60,000/- shall be eligible. Women beneficiaries amongst the BPL, households belonging to poorest of poor (POP) category shall be given priority, (iv) The beneficiary shall not be below 18 years and above 60 years of age. Keeping in view the above eligibility criteria, 20 individuals, who are all women family members of the encroachers in the said Krishnam Raju tank found eligible for grant of land under Land Purchase Scheme, and have applied for allotment of land under Land Purchase Scheme, were identified. Having regard to the above, the Collector has accorded sanction order dated 01.11.2018 for purchase of Ac. 19.73 cents in Bodawadamandagunta village at 12,00,000/- per acre under Land Purchase Scheme by the Prakasam District Scheduled Castes Cooperative Society Ltd., Ongole and to distribute to the above beneficiaries One Acre each. Accordingly, the land was registered in favour of the beneficiaries and handed over the same to them.
11. But, however, the learned counsel for the petitioner would submit that the scheme has been extended only to those persons, who belong to a particular political party and not to all, who were affected by the action of the authorities.
12. Two issues crop up for consideration; Firstly, removing of encroachments from the Krishnam Raju cheruvu and secondly giving land to the displaced persons under land purchase scheme.
13. Sri Y. Nagi Reddy, learned counsel for the petitioners would contend that it was act of unjust on the part of the persons who belong to Scheduled Castes, who were under cultivation since long time. He further submits that it is equally unfair on the part of the petitioners in PIL, in approaching this court seeking protection of one particular tank when there are other tanks in the village which are in alleged occupation of upper caste people. He submits that the petitioners are unable to carry out their agricultural operations due to the attitude of the authorities in issuing proceedings after proceedings.
14. On the other hand, Sri G. Seshadri, learned Standing Counsel for the Gram Panchayat would submit that all the encroachments on the tank poramboke lands are removed and a bund was also formed taking all preventive measures to protect the tank and the bund. It is said that the tank is also now filled with water and there are no encroachments.
15. Article 48-A of the Constitution of India mandates that the State shall endeavour to protect and improve the environment to safeguard the forests and wild life of the country. Article 51-A of the Constitution of India, enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve national environment including forests, lakes, rivers, wild life an to have compassion for living creatures. These two Articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these principles in making laws and further these two articles are to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the constitution including Articles 14, 19 and 21 of the Constitution of India and also the various laws enacted by the Parliament and the State Legislature. (Intellectuals Forum, Tirupathi v. State of A.P. and others MANU/SC/8047/2006 : 2006 (2) ALT 67 (SC) : 2006 (2) SCALE 494)
In the above case, the Apex Court observed that:
"The World has reached a level of growth in the 21st Century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the Courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of the humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without an inkling as to the substance of their end results. This inevitably leaves us to the conception of growth and development which sustains from one generation to the next in order to secure 'our common future'. In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof. Weiss puts it, "conservation, however, always takes a back seat in times of economic stress." It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally. The Parliament has considerably responded to the call of the Nations for conservation of environment and natural resources and enacted suitable laws.
The Judicial Wing of the country, more particularly, this Court has laid down a plethora of decisions asserting the need for environmental protection and conservation of natural resources. The environmental protection and conservation of natural resources has been given a status of a fundamental right and brought under Article 21 of the Constitution of India. This apart, the Directive Principles of State Policy as also the fundamental duties enshrined in Part IV and Part IVA of the Constitution of India respectively also stresses the need to protect and improve the natural environment including the forests, lakes, rivers and wildlife and to have compassion for living creatures.
16. In the case of Essar Oil v. Halar Utkarsh Samiti MANU/SC/0037/2004 : AIR 2004 SC 1834 the Apex Court was pleased to held as under:
This, therefore, is the sole aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in population together with the consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the pollution of water resources and the very air that we breathe. However there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other.
A similar view was taken by the Apex Court in Indian Council for Environ-Legal Action v. Union of India MANU/SC/1189/1996 : (1996) 5 SCC 281 wherein it has held as under:
While economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation; at the same time the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment should go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of the environment.
The concept of sustainable development also finds support in the decisions of this Court in the cases M.C. Mehta v. Union of India (Taj Trapezium Case) MANU/SC/0175/1997 : (1997) 2 SCC 653, State of Himachal Pradesh v. Ganesh Wood Products MANU/SC/0038/1996 : AIR 1996 SC 149 and Narmada Bachao Andolan v. Union of India MANU/SC/0206/2005 : AIR 2005 SC 2994 : 2005 (4) ALT 25.3 (DN SC).
In light of the above discussions, it seems fit to hold that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege. Public Trust Doctrine Another legal doctrine that is relevant to this matter is the Doctrine of Public Trust. This doctrine, though in existence from Roman times, was enunciated in its modern form by the US Supreme Court in Illinois Central Railroad Company v. People of the State of Illinois (1892) 146 US 537 where the Court held:
The bed or soil of navigable waters is held by the people of the State in their character as sovereign, in trust for public uses for which they are adapted.
17. In Jagpal Singh and others v. State of Punjab and others (2011) 11 SCC 396 : 2011 (4) ALT 25.2 (DN SC) the Apex Court observed that the Appellants were trespassers, who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even if Appellants have built houses on the land in question, they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat and regularizing such illegalities must not be permitted.
18. In Dahanu Taluka Environmental Protection Group and others v. Bombay Suburban Electricity Supply Co. Ltd. and others MANU/SC/0574/1991 : (1991) 2 SCC 539 the Apex Court held that the concerned Government should "consider the importance of public projects for the betterment of the conditions of living people on one hand and the necessity for preservation of social and ecological balance and avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution on the other in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and public workers and strike a balance between the two conflicting objectives."
19. The facts in the present case relates to encroachment made into water bodies. On one hand, the Standing Counsel for the Municipality states that all encroachments are cleared and bund is being constructed around the tank to protect it. But the same is strongly disputed by the learned counsel for the petitioners stating that only SCs. and STs have been evicted and not the upper caste people, who are still in occupation of the same. The other objection of the petitioners relates to the failure of the Government to protect other tanks in the said village which are in occupation of the upper caste people.
20. Without taking into consideration the class or caste, to which an individual belongs and having regard to the law laid down by the Apex Court in the judgments referred to above, vis-à-vis the mandate of Article 48-A of the Constitution of India, we hereby direct the authorities to forthwith take steps to evict all the encroachers irrespective of their status in the society from encroachments alleged to have been made in respect of the tanks in the village, in accordance with law.
21. The District Collector or a person responsible or authorized by him shall take note of the situation, verify as to whether any encroachments are made onto the tank bed lands or tank lands and if any such encroachments are found, the said authority shall forthwith take steps, irrespective of the caste or class, to which the said persons belong to and then take steps in protecting all the water bodies in the village, keeping in view the mandate of the law laid down by the Apex Court and Section (Article) 48-A of the Constitution of India.
22. Insofar as the distribution of land to the displaced persons, the grievance of the petitioners is that the beneficial schemes were not extended to them. As such, the District Collector is hereby directed to take note of the situation, enquire into the allegations made and see that the scheme if applicable to the petitioners, shall be made available in 16 accordance with law at the earliest. It is needless to mention that if any person is in unauthorized possession/occupation of the land, displacement or eviction shall only be in accordance with law.
23. With the above direction both the Writ Petitions and Writ Petition (PIL) are disposed of. There shall be no order as to costs. Miscellaneous Petitions pending if any in these Writ Petitions shall stand closed.
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