Acts/Rules/Orders:
Constitution of India - Articles 21, 162 and 226;Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 - Section 4(1);Karnataka Country and Town Planning Act, 1961;Karnataka Irrigation Act - Section 29
Cases Referred:
M.C. Mehta v. Kamal Nath and Others, (1997) 1 SCC 388;Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628;M/s. Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir and Another, AIR 1980 SC 1992;Sachindanada Pandey and Another v. State of West Bengal and Others, AIR 1987 SC 1109;S.P. Gupta and Others v. President of India and Others, AIR 1982 SC 149;B.V. Narayana Reddy v. State of Karnataka, ILR 1984 Kar. 631, AIR 1985 Kant. 99
JUDGEMENT
S.R. Venkatesha Murthy, J.
1. On a letter of the Deputy Commissioner, Hassan dated 30-9-1996, the Government of Karnataka issued an order Annexure-R5 (in W.P. No. 30959 of 1996) dated 21-11-1996 to the Deputy Commissioner, Hassan, authorising the demolition of Channapatna tank in the City of Hassan and for the disposal of the land covered by the tank in the manner provided therein. Pursuant to Annexure-R5, the Executive Engineer, Hassan issued a notification Annexure-J dated 19-12-1996 notifying that the supply of water from the tank is stopped with effect from 19-12-1996, to the fanners.
2. The petitioners who claim to be public spirited persons have challenged the orders Annexure-H and J and are seeking direction for restoration of the breached tank. Writ Petition No. 30959 of 1996 and W.P. No. 3897 of 1997 are the two writ petitions filed in public interest. In Writ Petition No. 30959 of 1996, the petitioner has prayed that a writ or direction in the nature of mandamus not to convert the Channapatna Tank into a bus terminus, railway station etc. and to preserve and protect the same as a national monument for the benefit of man-kind. In Writ Petition No. 3897 of 1997, the relief is to quash Annexure-H and J and to restore the tank.
3. Writ Appeal No. 2509 of 1997 is against the refusal of the prayer to grant an interim order in Writ Petition No. 3897 of 1997. The writ appeal has apparently become infructuous as the writ petition itself is heard on merits and disposed of by this order and it accordingly ordered.
4. Chennapatna village in the district of Hassan is located at the peripheries of Hassan City with the Chennapatna tank intervening in between. It is stated that the Chennaptna tank was constructed by Bukkanayaka, an officer deputed by the Chola King to put down the rebellious chieftains in the locality. After quelling the chieftains in the neighbourhood, Bukkanayaka is stated to have constructed the village of Chennapatna as also the Channapatna tank about 900 years ago. The tank, it is stated, has a pride of place in the cultural and historical heritage of the locality. It is stated that the tank in question which is a source of water for irrigation of about 300 acres of land in the vicinity of Hassan City by virtue of its antiquity has its ecological impact. By the demolition of the tank, the ecological balance would be affected. It is stated that the manner in which the decision to demolish the tank for developmental activity, show lack of application of mind, vitiating the decision.
5. Respondents 1 and 2 have contested the claim of the petitioner in these cases. It is their contention that the tank in question, notwithstanding its antiquity, was polluted by the flow of drainage water of the newly laid out extensions of Hassan situated in the upper reaches of the tank. The Health Department, the Pollution Board and the other agencies, had opined that the water in the tank is polluted and is not fit either for agricultural purposes or for any other purpose. Consequently, the tank was ordered to be breached by the Government. Pursuant to such an order, the Executive Engineer, who is the authorised officer under the Karnataka Irrigation Act, has passed the order for stopping supply of water from the tank in question. The State has also sought to contend that under the Karnataka Country and Town Planning Act, 1961 (hereinafter called the 'Act' of 1961) a Comprehensive Development Plan has been formulated reserving the land in question for various purposes such as commercial purpose, besides seeking to maintain a water body in an extent of about 60 acres in a more scientific and pollution free state.
5.1 It is stated that the City of Hassan is a growing industrial city, being located on the national highway from Bangalore to Mangalore. Having regard to the strategic location of the city and the projected development of the city by having an airport and other means of transport and communication, the Government has decided to permit the breach of the tank and to develop the area for essential services such as bus stand, railway station etc. In the circumstances it is contended by the State that the claim of the petitioners that preservation of the tank is necessary for maintenance of ecological balance in the area is untenable. In any event, the use of the land covered by the tank being regulated by the Comprehensive Development Plan formulated under the Act of 1961, it is not open to the petitioners to seek the preservation of the tank.
6. The other respondents who are contesting the claim of the petitioners have reiterated the stand taken by the State and have denied that there was any marine life in the tank which really required to be protected in the larger interest of the environment in the vicinity of Hassan City.
7. The petitioners have also filed a rejoinder seeking to assert the claim made in the writ petition filed by them.
8. The area of the Chennapatna tank was included in the Comprehensive Development Plan under the Act of 1961 as far back as in 1984. At a meeting, on 13-9-1996 in the office of the 9th respondent, a decision was taken in the presence of the 9th respondent and others to call for the opinion of the 5th respondent-Deputy Commissioner for breaching the Channapatna Tank. Thereafter, the authorities, such as Minor Irrigation, Agriculture, Health and Environment, were called upon to submit reports in regard to feasibility of breaching of the Channapatna Tank. The various authorities having submitted their reports, the Deputy Commissioner wrote the letter at Annexure-G suggesting the breach of the Channapatna Tank and to use the lands so made available for the purposes of the railways, K.S.R.T.C., City Municipality and for extension of the City of Hassan.
9. The Government, having examined the proposal, found that all the departments such as Agriculture, Environment, Health etc., opined that tbe tank had turned out to be a health hazard and it was, therefore, necessary to breach it for putting the land to use for extension of the city in accordance with the Comprehensive Development Plan.
10. The State Government in consultation with the Minister for Minor Irrigation and with his concurrence passed the order Annexure-H authorising the breaching of the Channapatna Tank, stipulating the terms for disposal of the land so released.
11. The grievance of the petitioners is that the tank in question having been in existence for nearly 900 years has acquired such a status and popularity as would prevent its breaching, not only on account of the historical background of the tank but also on account of the harm to marine life in the said tank. The petitioners contend that the breach of the tank would affect 300 acres of wet land fed by the water of the tank; while the agricultural department asserted that the yield of paddy from the land had come down on account of water pollution.
12. Admittedly, the Channapatna tank is registered as a 'minor tank' in the Governmental records. The water spread in the tank at the time of inspection was found to be about 5.9 hectares. Though the petitioners seek to challenge this aspect, there is no material to show that at any time the entire area of the tank was filled up with water. The Chennapatna Tank in question is dependent on rain water flowing into the tank and does not have a perennial source of water supply.
13. The inspection conducted by the various authorities of the area would indicate that on account of the extension of the city of Hassan, the drainage water of the extensions flow into Chennapatna Tank polluting the tank.
14. It has to be found whether the decision of the State to breach the tank is open to challenge in those writ petitions.
15. Though certain claims are made on behalf of the petitioners relating to the ecological importance of the Channapatna tank and the sustenance of marine life in the tank, there is very little material to show the magnitude and / or variety of marine life. It is seen from Annexure-G, the letter of the Deputy Commissioner dated 30-9-1996 written to the Government, that out of nearly 160 acres of land, land has already been granted to an extent of 15 guntas to Janata Party Office; 28 guntas of - land to City Improvement Office and 8 acres has already been acquired for the railway track. It is apparent that the claim of the petitioners about ecological importance of the tank is far too exaggerated to be countenanced.
16. The fact that the Channapatna tank was constructed some 900 years ago, to be a water source for the newly constructed settlement, namely, Channapatna, could not, by itself invest the tank with such importance regarding its utility, with the passage of time, as to give it a status of irremovability. Indeed tanks are bound to be constructed as and when new settlements are sought to be created, or come into existence, if there is no other assured source of water available for such a new settlement. The importance of such a tank is apparently dependent on various circumstances, such as assured inflow of water and holding capacity of the tank for sustaining agriculture and / or life of the community. By their very nature, tanks, such as the one in question, cannot be regarded as environmentally important having regard to their inherent limitations in sustaining marine life or in augmenting the underground water plateau. In the instant case, apart from tall claims being made of the importance of the tank, there is very little material to sustain the claim of the petitioners.
17. The learned Counsel appearing for petitioners sought to rely upon the decision reported in M.C. Mehta v Kamal Nath and Others , in support of their contention that the tank is a 'public trust' and cannot be meddled with.
18. The Supreme Court in M.C. Mehta's case, supra, examined the public trust doctrine under English common law and the American law and of its application to the Indian conditions and they read as follows:
'33. It is no doubt correct that the Public Trust Doctrine under the English common law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the Public Trust Doctrine. The observations of the Supreme Court of California in Mono Lake case (33 Cal. 3d 419) clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observations of the Court in Mono Lake case to the effect that the protection of ecological values is among the environment protection is a relevant factor to determine which lands, waters or airs are protected by the Public Trust Doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust waters. In Phillips Petroleum Company v Mississippi, the United States Supreme Court upheld Mississipi's extension of Public Trust Doctrine to lands underlying non-navigable tidal areas. The majority judgment adopted ecological concepts to determine which lands can be considered tide-lands. Phillips Petroleum's case, supra, assumes importance because the Supreme Court expanded the Public Trust Doctrine to identify the tide-lands not on commercial considerations but on ecological concepts. We see no reason why the Public Trust Doctrine should not be expanded to include all eco-systems operating in our natural resources.
34. Our legal system-based on English common law-includes the Public Trust Doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the Courts. If there is a law made by Parliament or the State Legislatures the Courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the Doctrine of Public Trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial or any other use unless the Courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources'.
How far this Public Trust Doctrine applies to the facts of the case need examination.
19. A reading of the observations extracted in Mehta's case referred to above would show that running water, forest, parks and open lands are covered by the Public Trust Doctrine. A small tank with a water body to an extent of about less than 6 hectares, polluted by a sewerage water, can hardly be regarded as covered by the Public Trust Doctrine enunciated in M.C. Mehta's case.
20. Even in cases where the Public Trust Doctrine applies, the liability to preserve the subject of Public Trust is not absolute and it is susceptible of being used for public good and in public interest. It cannot, therefore, be said that the State was barred by the Public Trust Doctrine to breach the tank in question for catering to the needs of a growing city.
21. It was sought to be contended for the petitioners that the sequence of events leading to the decision of the Government to breach the tank for purposes of developing the tank bed for commercial purposes, for public utilities and the rest for housing purposes, shows mala fides on the part of the Government and cannot therefore be sustained.
22. On 13-9-1996, a meeting appear to have been convened in the office of the 9th respondent to consider breaching of the Channapatna tank. The meeting was attended by the Minister for municipal administration, besides the 9th respondent and the local M.L.A. At that meeting it was decided that the Deputy Commissioner may be called upon to submit his opinion regarding the proposal for breaching the tank. On 18-9-1996, the Deputy Commissioner is stated to have called for reports from the Minor Irrigation Department, Agricultural Department, Health Department and Environmental Officer on the subject of breaching Channapatna Tank. At the same time the Commissioner, City Municipal Council Hassan is stated to have called for a spot inspection report from the various officials and the departments. On 20-9-1996 report was submitted by the Commissioner, City Municipal Council Hassan, Joint Director Agriculture, Executive Engineer; Minor Irrigation Department. The District Health and Family Welfare Officer submitted report about the hazards of continuance of the tank and the impediment caused by its continuance so far as the planned development of the city was concerned. The Assistant Environmental Officer, Karnataka State Pollution Board is also stated to have given a report that the population of the City of Hassan have grown beyond 1.5 lakhs as against the 1991 census figure of 90,552; that the newly laid out extension did not possess underground drainage facility; that the sewerage water of the extension is flowing into the tank destroying the aquatic species and that the water of the tank was unfit for human consumption. Having collected all these materials, the Deputy Commissioner, Hassan, suggested that the tank be breached for purposes of a planned development of the city. On the basis of the report of the Deputy Commissioner, the Minister for minor irrigation gave his approval on 6-11-1996 for the breach of the tank and the Chief Minister is also stated to have conveyed his approval for the breach of the tank in question. Thereafter, the Government conveyed its approval for the breaching of the tank and for the distribution of the land of the tank bed to K.S.R.T.C., to the railways and others in terms of the Government Order Annexure-H. It cannot be said these considerations were not really relevant for the State to take the decision, it did take.
22.1 The only contention against the order Annexure-H is that it has been passed in great haste only to achieve a predetermined objective namely to breach the tank. The inference suggested is that the entire process leading to Annexure-H is without regard to the environmental importance of the tank for the inhabitants of the locality. The contention of the petitioners that the Governmental decision is bad on the ground that other alternatives were available to the Government to effectuate its intention without ordering the demolition of the tank, is not open to scrutiny, inas much as the decision of the State is not prime facie shown to be capricious, unreasonable, arbitrary or is violative of any constitutional or any mandatory provision of law.
23. Approach to and scope of interference by the Court is dealt with in Ramana Dayaram Shetty v International Airport Authority of India, Mis. Kasturi Lal Lakshmi Reddy v State of Jammu and Kashmir and Another and Sachidananda Pandey and Another v State of West Bengal and Others , viewed in the light of the above decision, it appears that the petitioners claim cannot stand scrutiny is by reason of the limits of judicial review by the Court.
24. While judging claims of this nature it is necessary to remember the observation in S.P. Gupta and Others v President of India and Others.
'23. We must be careful to see that the members of the public, who approaches the Court in cases of this kind is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective'.
25. It was sought to be contended on behalf of the petitioners that the order Annexure-H passed by the Executive Engineer, Minor Irrigation Division, Hassan dated 11-12-1996 is without the authority of law and therefore the breaching of the tank is without jurisdiction and the tank has to be restored. Notification Annexure-K is purportedly issued under Section 29 of the Karnataka Irrigation Act. Apparently Section 29 of the Irrigation Act relates to temporary stoppage of supply of water from the tank in certain circumstances. It is not necessary to examine in detail the circumstances in which the supply of water from the tank can be stopped under the Karnataka Irrigation Act. Suffice it to state that the Notification Annexure-H authorising the demolition of the tank cannot affect the execution of decision of the State Government to demolish the tank for reasons that were placed before it for consideration, when it is otherwise not open to challenge on any other ground.
26. The Karnataka Irrigation Act 1965, as can be made from its preamble, has been enacted to make provision relating to construction, maintenance and regulation of irrigation works, supply of water therefrom, obtaining labour in emergencies and certain other matters pertaining to irrigation in the State of Mysore. An examination of the provisions in the Karnataka Irrigation Act would show that none of them even remotely deals with a situation relating to demolition of an existing tank or impliedly bars the demolition of a tank.
27. It has to be seen whether the executive power under Article 162 of the Constitution was available to the State in ordering the demolition of the Channapatna tank, for developmental use, in the face of the Karnataka Irrigation Act, 1961. In Maxwell on Interpretation of Statutes, 12th Edition, page 143, it is stated as follows:
'Keeping outside the Act It is, however, essential not to confound what is actually or virtually prohibited or enjoined by the statutory language with what is really beyond the enacting part, though it may be within the policy of the Act: for it is only to the former case that the principle under consideration applies, and not to cases where, however, manifest the object of the Act may be, the language is not fairly co-extensive with it. An Act of Parliament is also subject to evasion in this sense, for there is no obligation not to do what the legislature has not really prohibited nor to do what it has not really commanded. It is not evading an Act to keep outside it'.
(emphasis supplied)
These observations are extracted to show how a situation not covered by a legislation is dealt with. The power of the State to act under Article 162 of the Constitution, in the circumstances of the case, is not fettered by any provisions of the Karnataka Irrigation Act or the Public Trust Doctrine enunciated in M.C. Mehta's case, supra. When that is so, the decision of the Government taken to demolish the Channapatna Tank is not assailable on the ground that Section 29 of the Karnataka Irrigation Act, under which the Notification at Annexure-H is issued does not empower the authorities to demolish the Channapatna Tank. Indeed Annexure-H is redundant in as much as the demolition of the tank is already authorised by the State Government after examining the relevant material, and the manner in which it is executed, not being regulated by any provision of law, cannot be assailed by the petitioners. It is clear that when a legislation covers a part of the subject and the legislation does not prohibit the doing of a certain act, viz., exercise of the power under Article 162 of the Constitution by the executive to order demolition of a tank, as in this case, is unaffected,
27.1 The petitioners have sought that the Channapatna tank may be declared as a 'monument' having regard to the fact that the tank was constructed apparently about 900 years ago. The Karnataka Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1961 defines monument to mean any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculputure, inscription or monolith which is of historical, archaeological or artistic interest and which has been in existence for not less than one hundred years. Having regard to this definition, it may be possible for the petitioners to contend that a tank constructed 900 years ago could be a 'structure', ('structure' being defined as 'to arrange the different parts of something into a pattern or system in which each part is connected to the other'. Longman - Dictionary of Contemporary English, New Edition). But that will not help the petitioners inas much as Section 4(1) of the Act vests discretion in the State Government to declare such an ancient monument as a protected monument and to make provision for its preservation. A similar question came up before the Division Bench of this Court in B.V. Narayana Reddy v State of Karnataka. His Lordship Mr. Justice M.N. Venkatachalaiah (as he then was) after examining the matter observed in paras 23 and 24 of the judgment as follows:
'23. In the ultimate analysis, the words 'where the Government is of opinion' and 'it may' in Section 4(1) are distinct words of permission only. They are enabling and empowering words. They confer a right and power on the authority named to do a particular thing. Petitioners have no enforceable rights enabling them to mandamus..........
24. On scrutiny of the Scheme of the 'Act' the inference becomes inescapable that the 'policy' of the law was to confer a 'power' on the Government which stems into activity and becomes available only 'where the Government is of the opinion that any ancient monument should be declared as a protected monument'. There are no provisions in the 'Act' which even broadly hint that, given certain objective conditions, the exercise of the power becomes obligatory and renders the repository of the power compellable to exercise it. This is still in the area of pure judgment and subjective opinion. It is not possible in the circumstances of the statute to compel the repository of the power to form an opinion, though formation of a positive opinion to make a declaration is amenable to judicial review on the accepted administrative law tests. The arguments advanced in the case may indicate and indeed stress the need and desirability for a more imaginative and purposive legislative on the topic; out that idea must be borne in the precincts of the legislature. If the law is to be altered, the law is to be altered by legislation; and not by judicial decision'.
(emphasis supplied)
It is clear from the above observations that the petitioners are not entitled to seek a mandamus that the tank be declared a monument.
28. In the instant case, the petitioners have not been able to establish that the administrative action of the State in directing the demolition of the Chennapatna tank is open to judicial review. In very similar circumstances in B.V. Narayana Reddy's case referred to above, it is observed as follows in para 27 at page 113.
'This Court, therefore, cannot go into the merits of the controversy as to whether or not 'Attara Cucherry' requires to be pulled down and a new building erected in its place or not. Judicial review is no method of inquiring into the wisdom, expediency or reasonableness of administrative acts. We should be unwilling to substitute our own decision for that of the responsible authority. We have set out in para 7 (supra) what preceded the making of the Government's decision. Petitioners' own view as to the wisdom or the want of it of the decision may be right. All the same it is difficult to appreciate the case of the petitioners that, even apart from the Act; they can still ask the Court to strike down the decision on the ground that it is an arbitrary and unreasonable one. It is true that administrative decisions must not be unreasonable or, at least, not so unreasonable that no reasonable authority could have arrived at that decision. That is one fact of perversity. But it is unreasonable to assume that because another party disagrees with one's own view of the matter his or her view is, necessarily, unreasonable. There is no material in law to hold that the proposed executive action is arbitrary and unreasonable so as to become amenable to judicial review and interference'.
The contentions raised by the petitioners did not measure upto the test referred to above. The petitions fail and are dismissed.