HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 3098 OF 2008. DATED -----January, 2011 BETWEEN Bojja Arjuna Rao and others …Petitioners And The Government of Andhra Pradesh, Rep. by itsSecretary, Irrigation & CAD Department, Secretariat, Hyderabad and others ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 3098 OF 2008. ORDER: Heard the learned Counsel for the petitioners and the learned Government Pleader for Irrigation & CAD appearing for the respondents. This Writ Petition is filed questioning the action of the third respondent in trying to evict the petitioners from their respective houses/shops constructed near the banks of Simhadri Raju Canal and Raju Seri Canal in Kirlampudi village & Mandal of East Godavari District, as illegal and arbitrary. It is stated in the affidavit filed in support of the Writ Petition that the petitioners have constructed independent houses/shops in small extent of lands in Kirlampudi village & Mandal of East Godavari District and they are in peaceful possession and enjoyment of the same since thirty years. It is further stated that apart from electric power supply connections, the petitioners’ houses/shops were also allotted municipal door numbers and that they are paying electricity and house tax regularly. While so, it is the grievance of the petitioners that the third respondent issued notice No. 16K, dated 13.2.2008 directing them to vacate the houses/shops within three days. Learned Counsel appearing for the petitioners, in support of their case, placed reliance on the judgments of the Apex Court and this Court and submitted that the respondents have initiated the action for eviction of the petitioners from their respective houses/shops contrary to the procedure contemplated under law and that the petitioners have acquired the right and title over their respective shops/houses by adverse possession, inasmuch as they are in peaceful possession and enjoyment since 30 years, and therefore, they cannot be evicted by the respondents. Per contra, the respondents filed counter affidavit denying the averments made by the petitioners in the affidavit filed in support of the Writ Petition and stated that Simhadri Raju Canal and Raju Seri Canal serve an ayacut of 5402 acers, and that the said canal carries floodwater to the confluence point of sea. It is stated that all the petitioners have encroached the canal margins by constructing unauthorized structures and running their business. It is stated that on account of encroachment of canal margins, there is menace of dumping garbage by the dwellers into the canal, resulting in obstruction of free flow of water to the ayacutdars, and that even during moderate rains, the canal is not able to accommodate water to the needy ayacutdars. Unless the canal margins are protected from the hands of the encroachers and canal is maintained free from any encroachments, it is difficult to operate and maintain the irrigation system. This apart, clearance of the encroachment is necessary, so as to avoid inundation of adjoining villages from flood water. It is further stated that the land in question, encroached by the petitioners, is classified as ‘canal berm’ of irrigation and drainage system, that the respondents are vested with right to evict the unauthorized persons encroaching canal berms to safeguard the canals from high degree of pollution due to dumping of waste and causing congestion. That allotment of municipal door numbers and payment of electricity charges will not confer any right to the encroachers. It is stated that Simhadri Raju Canal and Raju Seri Canal of Yeleru Irrigation system, which is functioning as drain cum irrigation, serve the needy farmers at large. It is not out of place to mention here that water bodies/canals play an important role in the manner of maintenance of ecology. They act as a benefactor to the society. Any encroachment on the water bodies may be found to be detrimental to the society. The considerations for construction not being allowed on or near the water bodies/canals would depend upon many factors. Some of the important factors are (1)the purposes for which such water bodies/canals are used or created (2) the extent of pollution caused to the water bodies (3) the extent of ecological imbalance which may be caused if constructions are allowed in and around or along the water bodies/canals, etc.,. The Apex Court in its authoritative pronouncements observed that water is essential to many of the mankind’s most basic activities, such as, agriculture, forestry, industry, power generation and recreation. Water being an integral part of the environment, its availability is indispensable to the efficient functioning of the biosphere. Without a safe, reliable and stable water supply, human and economic development would not be possible. Nearly every decision whether about housing, transportation, economic growth or developmental work is linked to the use of the water resources of the community. As such, the water bodies/canals cannot be allowed to be polluted. Such water bodies/canals need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the right guaranteed under Article 21 of the Constitution. Articles 39(b), 48A, 51A(g) of the Constitution, as also the provisions showing the functions of the local bodies/authorities under Articles 243 G and 243-W read with Schedules 11 and 12 of the Constitution mandate to preserve and improve water lakes, ponds and canals. The local bodies are amply armed with powers to remove encroachments and to preserve water bodies/canals and do appropriate water management of the water supply sources falling within their area. There should not be allowed any constructions near the periphery of the water bodies/canals so as to hamper their use or to prevent the natural course of water. The Apex Court in one of its authoritative pronouncements observed that without removal of encroachments, the water bodies/canals under encroachments can hardly be rejuvenated. It is, therefore, essential for the State Government, the Urban Development Authorities and local bodies, as the case may be, to exercise their statutory powers to remove the existing encroachments and take measures to prevent encroachments. These authorities, therefore, can be directed to prepare an authenticated record in the form of videography, photography and panchanamas of the existing encroachments and take urgent steps to remove them in accordance with law. The Apex Court dealing with similar subject matter, in catena of decisions, observed that it is not only the duty of the State (Executive), but also the duty of the Court to protect the environment and water bodies. A Division Bench of this Court in Ramakrishna Rao Vs. HUDA, {2001 (4) ALD 758} observed : “ Protection of the environment is not only the duty of the citizens but also the obligation of the State and its all other organs including the courts. The enjoyment of life and its attainment and fulfillment guaranteed by Articles 21 of the Constitution embraces the protection and preservation of nature’s gift without which life cannot be enjoyed fruitfully. The slow poisoning of the atmosphere caused by the environmental pollution and spoliation should be regarded as amounting to violation of Article 21 of the Constitution of India. The legitimate duty of the Courts as the enforcing organs of the constitutional objectives to forbid all actions of the state and the citizens from upsetting the ecological and environmental balance. It is trite to state that hygienic environment is an integral fact of the right to healthy life and it would not be possible to live with human dignity without a human and healthy environment.” In Patanjali Vs. A.P.P.C.B, {2001(5) ALT 315}, a Division Bench of this Court, held: “ Protection of lakes of national importance from pollution, ecology, encroachment etc., should be the primary concern of the State. In the context of rapid globalization and the eminent threat it posed to environment, ecology vis-a vis- the rights of the citizens to have pollution free environment, the right to water etc., recognized by the Apex Court under Article 21 of the Constitution of India, the duty of the Government to protect the lakes has assumed much more importance. It is now well settled principle of law that Directive Principles of State Policy under Part IV of the Constitution are enforceable under Article 21 of the Constitution of India. Under Article 48-A of the Constitution, the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country... At the same time, it shall be the fundamental duty of every citizen of India under Article 51-A(g) of the Constitution of India, to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures” It is submitted by the learned Counsel for the petitioners that the petitioners have acquired title over their respective houses/shops by adverse possession and as such they cannot be evicted. The petitioners except making bald statement, have not filed any document showing their title over their respective houses/shops and even they have not filed any document showing that they are residing in their respective houses for the past thirty years. However, whether the petitioners have right and title over their respective houses/shops, whether or not the land wherein the petitioners have constructed their respective houses/shops belongs to the Irrigation Department, are disputed questions of fact, which this Court in exercise of its jurisdiction under Article 226 of the Constitution, cannot decide the same. If according to the petitioners they have acquired title to the property by way of adverse possession, it is for them to approach appropriate forum and to establish their right, title and possession, over the property, by leading evidence. It is further submitted that the respondents have given only three days time in the impugned notice and the petitioners have not sufficient time to submit their explanations or otherwise of any material to show their title over the houses/shops. The petitioners have not placed any statutory provision, which requires giving of more than three days notice. At any rate, considering the urgency in the matter, that the canal is getting polluted due to dwelling houses erected by the petitioners and is also obstructing the free flow of water to the ayacutdars, for which purpose the canal was constructed, the respondents issued urgent three days notice, and no fault can be found therewith, particularly when the petitioners even before this Court failed to produce any material to show that they got title over the property, and therefore, they cannot be evicted. For the foregoing discussion and, having regard to the fact the respondents issued the impugned notice so as to protect the canal, which plays an important role in the preservation of environment, by supplying of water to the ayacutdars, and the petitioners having not shown any title over the property, I do not see any reason to set aside the impugned notices. The Writ Petition is dismissed. However, the petitioners are at liberty to approach the appropriate forum for redressal of their grievance with respect to their title, if so advised. There shall be no order as to costs. -------------------------------------------- - JUSTICE ASHUTOSH MOHUNTA Dated -----January, 2011. Msnro