WP/3936/2009 of Surada Ramana Vs The State of Andhra Pradesh, rep. by its on 29 December 2009

1. (1985) 3 SCC 545: AIR 1986 SC 180

2. (1994) 4 SCC 460: AIR 1995 SC 519

3. (1999) 4 SCC 43: AIR 1999 SC 1786

4. (1997) 9 SCC 42

5. 1992(3) ALT 224 (DB)

6. 1996(4) ALT 1072 (DB)

7. (1997) 9 SCC 42

8. 146 US 387 : 36 L Ed 1018 (1892)

9. (1997) 1 SCC 388

10. (1999) 6 SCC 46411. (2006) 3 SCC 549

12. (2009) 3 SCC 571

13. 1992 Supp (3) SCC 217 : AIR 1993 SC 477

THE HON’BLE SRI JUSTICE V.V.S. RAOANDTHE HON’BLE SRI JUSTICE B.N.RAO NALLA

12.2009

Between:

Surada Ramana, S/o.Late Demudu

And others

AND

…Petitioners

The District Collector, Visakhapatnam District And others And others …Respondents.

THE HON’BLE SRI JUSTICE V.V.S. RAOANDTHE HON’BLE SRI JUSTICE B.N.RAO NALLA

WRIT PETITION Nos.18902 of 2008 and 3936, 15220, 16525, 17150,17442, 17955, 18451, 20618, 20757, 20767 and 22105 of 2009

COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao)

Introduction

This group of twelve writ petitions is being disposed of by thiscommon order, as the subject matter is common to all. Thecontroversy is with regard to the authority, jurisdiction and power ofHon’ble the Lok Ayukta (HTL, for brevity) in issuing directions toappoint certain persons in Gangavaram Port Limited (GPL) as part ofRehabilitation & Resettlement Package (RR Package). Thecontroversy also centers round the method and manner adopted byVisakhapatnam District Administration in preparing the list of eligiblecandidates. Both these issues also involve the right of traditionalfishermen to livelihood and the constitutional duty of this Court toprotect such people from deprivation and infringement of their right tolivelihood in the name of economic development.

Right to livelihood

Universal Declaration of Human Rights (UDHR) not onlyrecognizes inalienable right to life and liberty (Article 3) and security ofpersons but also emphasizes right of every person to social security(Article 22), equal opportunity (Article 7) and right to work (Article 23).International Covenant on Political and Civil Rights, by Article 6recognises right to work, which includes right of every one toopportunity to gain his living by work which he freely chooses oraccepts and calls upon the State Parties to achieve the full realisationof this right by taking necessary economic, political and socialmeasures.

I n Olga Tellis v Bombay Municipal Corporation[[1]], theConstitution Bench of Supreme Court laid down that deprivation oflivelihood amounts to deprivation of right to life and that a personcannot be deprived of livelihood without due process of law. Therelevant placitum from the reported judgment reads as under.

The sweep of the right to life conferred by Article 21 iswide and far-reaching. It does not mean merely that lifecannot be extinguished or taken away as, for example, by theimposition and execution of the death sentence, exceptaccording to procedure established by law. That is but oneaspect of the right to life. An equally important facet of thatright is the right to livelihood because; no person can livewithout the means of living, that is, the means of livelihood. Ifthe right to livelihood is not treated as a part of theconstitutional right to life, the easiest way of depriving aperson of his right to life would be to deprive him of hismeans of livelihood to the point of abrogation. Suchdeprivation would not only denude the life of its effectivecontent and meaningfulness but it would make life impossibleto live. And yet, such deprivation would not have to be inaccordance with the procedure established by law, if the rightto livelihood is not regarded as a part of the right to life. That,which alone makes it possible to live, leave aside what makeslife livable, must be deemed to be an integral component ofthe right to life. Deprive a person of his right to livelihoodand you shall have deprived him of his life.

I n Narendra Kumar Chandla v State of Haryana[[2]], theSupreme Court reiterated that Article 21 of Constitution of Indiaprotects right to livelihood as an integral facet of right to life. In Stateof H.P. v Raja Mahendra Pal[[3]], the content of right to livelihood wasexplained by the Supreme Court thus.

It is true that Article 21 of the Constitution is of theutmost importance, violation of which, as and when found,directly or indirectly, or even remotely, has to be looked uponwith disfavour. The violation of the right to livelihood is required to be remedied. But the right to livelihood ascontemplated under Article 21 of the Constitution cannot be sowidely construed which may result in defeating the purposesought to be achieved by the aforesaid article. It is also truethat the right to livelihood would include all attributes of life butthe same cannot be extended to the extent that it mayembrace or take within its ambit all sorts of claims relating tothe legal or contractual rights of the parties completelyignoring the person approaching the court and the allegedviolation of the said right.

Social justice is a Constitutional promise. Directive Principles ofState policy in Articles 38 and 39 of Constitution require the State topromote welfare of the people and direct its policy to secure thatownership and control of the material resources of the community aredistributed so as to subserve common good and operate an economicsystem, which does not result in concentration of wealth. Makingeffective provision for securing the right to work, ensuring a livingwage, ensuring public health and promoting educational andeconomic interests for downtrodden people are some of the goals setby the Constitution. Therefore, right to livelihood cannot be easilyinterfered with nor can be compensated adequately by distributing freeland, money and facilities, which would be user-friendly.Background Facts

(i) Development of Gangavaram Port

(i) Development of Gangavaram Port

Government of Andhra Pradesh issued orders in G.O.Ms.No.130,TR&B (Ports) Department[[4]]dated 06.9.2000 communicating theirdecision to develop Gangavaram Port under public private sectorparticipation (PPP mode) to improve infrastructure in the State andcater to present and future needs of the region. M/s.L&T Rambole,were retained as project consultants. By a process of internationalcompetitive bidding, a consortium led by M/s.DVS Raju & New WaveSecurities and Industrial Ltd was selected as preferred bidder andorders were issued accordingly vide G.O.Ms.No.112, TR&B (Ports)Dept., dated 17.7.2002. The bidder was incorporated as SpecialPurpose Company (SPC) namely, Gangavaram Port Limited (GPL).The documentation process of new port involved Department of Portsand bidder entering into State support agreement, Shareholdersagreement and Concession agreement as contemplated in the letter ofintent. In that connection, five issues were raised with regard tovaluation of the land given to developer, concession period, equityinvestments, right of lenders and performance parameters andpenalties. A Cabinet sub-committee went into these issues andadvised the Government on the modalities and contents of theagreements to be entered into with developer. It was agreed that ontermination of the concession period, escalation of the land at 6.5%compounded annually would be shared by stakeholders on prorata basis. Be it noted that the Government allowed Rashtriya Ispat NigamLimited (Vizag steel plant) to part with Acs.1,400.00 of their land forPort at a cost of Rs.2,86,000/- per acre and another extent ofAcs.400.00 of Government land to the developer at Rs.1,50,000/- peracre.

The construction of Gangavaram Port is by GPL. They selected asite at Dibbapalem village on the shores of Bay of Bengal, as an idealone for development of deep water, all weather, multi purpose port. Inaddition, GPL also required, asked for and got huge extent of land forconstruction of port infrastructure like godowns, platforms, workshops,ship repairing bay etc.

(ii) The plight of fishermen communities Dibbapalem was situated on the seashore. All the fishermen ofthe village and fishermen of Gangavaram, Jalaripallepalem,Pallepalem, Chinapallepalem and Pedapallepalem (hereafter called,Gangavaram) also had their sea front to go for fishing in Dibbapalemvillage. If Dibbapalem village is removed to give place to port not onlyits fishermen but the people of Gangavaram and its four hamlets wouldhave no convenient sea shore to launch their fishing boats.

The imminent reality of losing seafront to go for fishing into seaand thereby losing livelihood led to spontaneous (as some of thecounsel say) agitation by all fishermen. All of them opposedestablishment of port as they would lose their livelihood and the rightto carry on their profession of fishing. Law and order regulations weremade, unlawful assemblies were prohibited, arrests were made, caseswere filed in criminal courts and in the police firing many persons wereinjured and one fisherman killed. Visualising opposition toestablishment of port and stumbling block justifiably created by thelocal fishermen, the District Collector and GPL reached an agreementwith villagers of Dibbapalem for providing RR package, whichincluded employment to the villagers in Gangavaram port. The samewas not the case with other villages. Some time in October 2005,District Collector reported that Gangavaram fishermen have not yetcome to an understanding for signing an agreement and that hesuggested to follow RR policy guidelines issued in G.O.Ms.No.68,Irrigation &CAD (Project Wing) Department, dated 08.4.2005. Accordingly Government issued G.O.Ms.No.236, TR&B (P1) Dept.,dated 08.4.2005 appointing Joint Collector, Visakhapatnam, asadministrator and Secretary to the Government in TR&B Departmentas commissioner for implementing RR package to Gangavaram portproject.

(iii) Agreements with fishermen of Gangavaram and Dibbapalem(a) Even before Government of Andhra Pradesh issued

G.O.Ms.No.236, dated 08.11.2005, Villagers of Dibbapalem, DistrictCollector and officials of GPL in the presence of Pendurthi MLAentered into RR agreement on 04.8.2005. The villagers agreed tocooperate with construction of port, accept RR package announced bythe District Collector and discontinue fishing operations after thecommencement of construction of port. GPL agreed to provideemployment to 250–300 eligible persons in addition to providingopportunities to work with port contractors.

(b) On 17.10.2005, District Collector, Joint Collector, Director of Ports,President of GPL and local MLA convened the meeting of Dibbapalemfishermen at fish landing centre. There was another agreement, whichwhile reiterating the commitment of GPL to provide employment as peragreement dated 04.8.2005, it was agreed to construct a road fromGangavaram to Yarada, which would be developed as fish landingcentre.

(c) On 04.9.2006, there was yet another agreement amongDibbapalem villagers, District Collector, representatives of GPL andlocal MLAs. This was treated as a supplemental agreement to earlierones. Dibbapalem residents agreed to vacate village within sixmonths and accept house sites with permanent pattas at SrinagarColony and Dayal Nagar Colony. The agreement also provided forpayment of cash for rehabilitation purposes.

(d) As can be seen, the earlier three agreements were with villagersand residents of Dibbapalem. Probably for this reason, on 05.5.2006,no less than Hon’ble Minister for Commercial Tax and Law convenedthe meeting with fishermen and village elders of Gangavaram,Sampradaya Matsyakarula Seva Sangham (petitioner inW.P.No.17150 of 2009). The participants in the meeting reached anagreement. It was agreed to provide a lump sum amount of Rs.25,000/-to owner of each boat (109 boat owners), Rs.15,000/- each for shiftingthe boat, Rs.3,000/- per month towards livelihood till completion ofconstruction of Jetti at Yarada, Rs.3,000/- per month towards boatmaintenance charges till completion of Jetty. Insofar as 664 kalasifishermen working on the boats are concerned, it was agreed toprovide lump sum amount of Rs.25,000/- for each family andRs.3,000/- each per month towards livelihood till the completion ofJetty and Rs.2,000/- per month to each fisherman’s family engaged insale and drying of fishes, in addition to Rs.20,000/- as lump sumcompensation. Importantly, it was agreed that GPL would provide jobsto 300 persons after giving practical training as part of RR package.(e) The last one of the agreements was arrived in a meeting held in thechambers of Hon’ble Minister for Infrastructure, Investments, Airportsand Natural gas, Sri Mopidevi Venkataramana Rao, on 25.3.2008. Besides officials of Government, GPL, President and Secretary of Gangavaram Fishermen Welfare Society and a few village elders werepresent in the meeting. While reiterating RR package earlier agreed to,Government agreed to withdraw of police cases instituted against thevillagers.

As can be seen from these five agreements, the first threeagreements were in relation to RR policy to the fishermen, residents ofDibbapalem village. The agreements dated 05.5.2006 and 25.3.2008came into existence in the presence of Hon’ble Ministers of the Stateand they related to villagers and fishermen of Gangavaram. There isno dispute that RR package has been implemented insofar asDibbapalem village is concerned, although there are few complaints inrelation thereto. The dispute in these cases is with regard to RRpackage especially providing employment by GPL insofar asGangavaram is concerned.

(iv) The complaint to Hon’ble the Lokayukta

On 19.7.2007, Chodipalli Raju, Executive Secretary of NorthAndhra Fishermen Youth Welfare Association (petitioner inW.P.No.20618 of 2009) filed a complaint before HTL alleging inactionon the part of the District Collector and Special Officer, Gangavaramport, in not taking steps for appointment of 300 fishermen in GPL.While alleging that their memorandum dated 05.2.2007 along with listof 300 fishermen, who lost livelihood, was not considered, complainantprayed for appropriate orders from HTL. A report of the DistrictCollector was called for. By his letter dated 01.8.2007, DistrictCollector submitted as under.

A survey was conducted by the Assistant Director ofFisheries and AD, Fisheries furnished a list of 429 activefishermen in Gangavaram village whose livelihood is likely tobe substantially affected due to construction of GangavaramPort. After the incident of firing on 27.3.2006 several roundsof discussions were held to arrive an amicable solution. Afterseveral rounds of negotiations, a list of 2826 fishermen wasconsidered for extending package. The details are as follows:

a) No. of boat owners : 115

b) Fishermen working on the boats : 1100

c) Others who depend on fishing activity: 1611

It is further submitted that at the time of negotiations, it wasalso promised to the fishermen of Gangavaram thatemployment would also be provided in the Port as perrequirement and suitability upto maximum of 300 jobs afterconstruction of Gangavaram Port, which was agreed by thefishermen. Accordingly, an agreement was also entered bythe Hon’ble Minister for Commercial Taxes with SampradayaMatsyakarula Seva Sangham on 05.5.2006.

It is also submitted that the Committee was directed toconstruct grama sabha in the village for the villages ofGangavaram, Jalaripallipalem, Pallipalem, China Pallipalem, Pedapallipalem for identifying the actualfishermen whose livelihood is substantially affected dueto construction of Gangavaram Port. The list furnishedby the petitioner would also be read in the grama sabhafor identification of genuine fishermen for impartingtraining and to provide jobs in Gangavaram Port aftercommencement of port operations.

HTL came to the conclusion that identification of eligible personsfor employment upto maximum of 300 had not been completed andaccordingly called further report. During the enquiry/preliminaryverification by HTL, District Collector and Special Officer ofGangavaram port submitted reports and the enquiry went on for aperiod of about four years. During the course of the enquiry, on31.10.2008, HTL directed Special Officer to enquire into first list of 300persons prepared by North Andhra Society. Thereafter a list wasprepared by Special Officer, which was placed before HTL on02.2.2009. Final order was passed on that day directing GPL toprovide employment to identified 317 eligible persons on priority basisin accordance with seniority without any deviation. Be it noted thatHTL heard North Andhra Society, Fishermen DevelopmentAssociation as well as other representatives, before passing orders onthat day.

(v) Challenge before this Court

(v) Challenge before this Court

(i) The batch of twelve writ petitions can be divided into fourcategories. Andhra Pradesh State Fishermen DevelopmentAssociation (referred to in this order as, Fishermen Association),Gangavaram Sampradaya Matsyakarula Seva Sangham (referred to inthis order as, Sampradaya Sangham) and eight individuals filedW.P.Nos.15220, 17150 and 17442 of 2009 respectively, assailingimpugned order dated 02.2.2009.

(ii) North Andhra Fishermen Youth Welfare Association (referred to inthis order as, North Andhra Association) filed W.P.No.20618 of 2009,in effect, for implementation of the order of HTL.

(iii) The following writ petitions are filed by individuals assailing theirnon-inclusion in the list prepared by Special Officer and for directionsto consider their cases for appointment in GPL as per the RRpackage. In a few cases, the removal of their names from the list ofeligible persons is challenged. These are: W.P.Nos.3936, 16525,17955, 18451 and 20767 of 2009.

(iv) W.P.No.18902 of 2008 is filed by Fishermen Association,W.P.No.22105 of 2009 is filed by 50 individuals and W.P.No.20757 of 2009 is filed by 24 individuals seeking a direction to provide benefitsincluding employment as per the proceedings dated 18.6.2007 of theSpecial Officer and as per the agreement dated 05.5.2006.Submissions and Issues For petitioners, M/s.P.V.Krishnaiah, Vedula Srinivas, K.S.Murthy,V.Raghunath and P.Krishna Prasad made submissions and othercounsel appearing for petitioners adopted them. Learned GovernmentPleader for Irrigation, Mr.Y.V.Ravi Prasad, learned Counsel for GPLand learned Standing Counsel for HTL, Mr.Ravindra, madesubmissions. It is to the credit of all these counsel that, to the extentpossible, all of them avoided traditional adversary litigation approachand placed before us the position of their clients with regard tovaluable right to life and livelihood of fishermen.

The submissions made by petitioners’ counsel centered roundthe power of HTL under Andhra Pradesh Lokayukta Act, 1983 (the Act,for brevity) to pass the impugned order. They contend that thecomplaint filed by North Andhra Association is not maintainable as itdoes not contain “allegation” and, therefore, the impugned ordersuffers from inherent lack of jurisdiction. A reference is made toInstitution of A.P. Lokayukta/ Upa-Lokayukta v T.Rama Subba Reddy[[5]], The Lokayukta for Andhra Pradesh v Dr.B.Seshadri[[6]]and S.Jagadeswar v The Lok Ayukta of Andhra Pradesh[[7]].Thecounsel appearing in other writ petitions highlight lack of transparency,absence of rational criteria for identifying eligible persons andarbitrariness in preparation of list of eligible persons for employment. Learned Counsel appearing for North Andhra Association submits thatthe order of HTL is sustainable and that the draft list was prepared afterelaborate procedure and giving notice to all. Learned GovernmentPleader, learned Counsel for GPL and learned Standing Counsel forHTL reiterate their position as elucidated in the counters filed on behalfof their clients.

The background of these cases and rival submissions give riseto two issues with regard to jurisdiction and power of HTL to entertainthe complaint filed by North Andhra Association and the validity of listof eligible persons prepared by Special Officer and approved by HTL.Jurisdiction of HTL

The Act is a legislation providing for appointment and functioningof Lokayukta for investigation of ‘administrative action’ taken by or onbehalf of Government of Andhra Pradesh including any omission orcommission in connection with or arising out of such action. UnderSection 7, HTL or Hon’ble Upa Lokayukta are empowered toinvestigate any action taken by, or with the approval or at the behest of,inter alia, any public servant or public servants. Placing reliance onSection 7 of the Act and the definition of ‘allegation’, Counsel would

submit that representation submitted by North Andhra Association on19.7.2007 is not a complaint containing an “action” or an “allegation”and, therefore, the same cannot be subjected to preliminaryverification. The attention of this Court is invited to Rules 2(ii) and 5 ofthe Andhra Pradesh Lokayukta and Upa-Lokayukta (Investigation)Rules, 1984 (the Rules, for brevity). It is emphasized that no allegationwas made against the District Collector or Special Officer and,therefore, preliminary verification is not warranted.

Learned Standing Counsel for HTL would urge that Section 7read with Section 2(a) of the Act confers jurisdiction on HTL to conductverification and pass orders and that the complaint in question fallsunder Section 2(a) read with Section 2(b)(i) of the Act and henceaction can be taken under Section 7(1)(iv) of the Act. He supports hisargument by making reference to Section 8 of the Act, whichenumerates matters not subject to investigation by HTL.

We have given our anxious consideration to the submissionsmade by petitioners. History of legislation in question, the purpose andobject for which institution of HTL was established and purposiveinterpretation, which ought to govern the construction of the statutecompel us to reject the petitioners’ plea. In our considered opinion,even when a representation cannot be treated as a complaintcontaining an allegation but complaining an action, inaction oromission by or at the best of public servant, HTL is bound to conductpreliminary verification if he is of opinion that such preliminaryverification is necessary in the interest of accountability, purity andtransparency of administration. We are also convinced that preliminaryverification into all complaints need not lead to investigation and reportunder Section 12 of the Act warranting disciplinary action against theerring public servant. In his discretion, HTL can at the stage ofpreliminary verification itself set right the action as well as actors so asto reduce effects of mal administration. In every complaint, there neednot be charges of corruption or corrupt motive and even in such cases,it is competent for HTL to summon the public servants alleged ofinaction, action and of commission and can express displeasure sothat a strong message goes out that there is omnipresent HTL tooversee administrative excesses. The reasons for this conclusion areas follows.

The jurisdiction of HTL is initiated by complaint made by anyperson relating to any allegation in respect of an action. Section 9(1)of the Act speaks of such “complaint”, “allegation” and “action”. Theseare defined in the Rules and the Act as under. As per Rule 2(ii) of theRules “complaint” means a statement made in writing to the Lokayuktaor Upa-Lokayukta by a complainant containing an allegation against apublic servant in respect of an action taken by such public servant.

“Action” is defined in Section 2(a) of the Act as follows.

2(a) ‘action’ means an administrative action taken by apublic servant by way of decision, recommendation or findingor in any other manner, and includes any omission andcommission and failure to act in connection with or arising outof such action; and all other expressions connecting actionshall be construed accordingly.public servant by way of decision, recommendation or findingor in any other manner, and includes any omission andcommission and failure to act in connection with or arising outof such action; and all other expressions connecting actionshall be construed accordingly.

A plain reading of the definition of “action” means “administrativeaction” taken by public servant by way of a decision, recommendationor finding or in any other manner and includes any omission andfailure to act in connection with or arising out of such action. “Allegation” is defined in Section 2(b) of the Act, which reads asfollows.

2(b) ‘allegation’ in relation to a public servant means anyaffirmation that such public servant –affirmation that such public servant –

(i) Has abused his position as such, to obtain any gainor favour to himself or to any other person, or to causeunder harm or hardship to any other person;or favour to himself or to any other person, or to causeunder harm or hardship to any other person;

(ii) Was actuated in the discharge of his functions assuch public servant by improper or corrupt motive andthereby caused loss to the State or any member orsection of the public; orsuch public servant by improper or corrupt motive andthereby caused loss to the State or any member orsection of the public; or(iii)Is guilty of corruption, or lack of integrity in hiscapacity as such public servant.capacity as such public servant.

In relation to public servant any affirmation that he has abusedhis position as such to obtain any gain or favour to himself or to anyother person, or to cause undue harm or hardship to any other person,a statement that public servant was actuated by improper or corruptmotive and thereby cause loss to the State or any member of the publicor such public servant is guilty of corruption, lack of integrity in hiscapacity as public servant, it is said that an allegation is made. Onconjoint reading of definitions of “complaint”, “action” and “allegation”,it would be incorrect to understand that there should necessarily be anallegation in respect of an action so as to constitute a complaint. Acomplaint may not contain the allegations as defined under Section2(b) of the Act. But an averment in complaint that the inaction oromission or commission resulted in hardship to complaint would besufficient to attract the jurisdiction of HTL.

In S.Jagadeshwar (supra), this Court laid down as under.

A reading of the definition makes it further clear thatthe allegation has to be about some particular act which maybe either a commission or omission but never a vaguesubmission or a generalized one. Section 9 of the Actprescribes the manner in which the complaints are madesaying that every complaint shall be made in such form andshall be accompanied by such affidavits as may beprescribed. The complaint has to release, under the section,

to an allegation in respect of any action. The procedure asoutline in Section 10 of the Act stipulates a preliminaryinvestigation by the Lok Ayukta or the Upa-Lok Ayukta toarrive at the conclusion of the necessity to conduct aninvestigation under the Act. Section 10(2)(a) of the Actprovides that the preliminary verification is to be conducted inprivate and that particularly the identity of the complainant andthe public servant to be affected by the preliminary verificationis not to be disclosed. After making the preliminaryverification if the complaint is accepted for investigation, theprocedure for making the investigation is to be followed byforwarding a copy of the complaint, or when there is nocomplaint and it is a suo motu action, a statement of thegrounds for initiation of the action to the public servantconcerned for his comments. Section 11 of the Act alsovests in the Lok Ayukta or the Upa-Lok Ayukta the power,inter alia, to record evidence in connection with theinvestigation.

Learned Counsel placed strong reliance on the aboveobservations of Division Bench of this Court in support of his plea. Itmay be noticed that by A.P. Act No.I of 2007, legislature substituted thedefinition “action” extracted herein-above. In our opinion this makesdifference and any complaint regarding action or inaction, whichcauses undue harm or hardship to any person would amount to acomplaint with allegation.

It may be noticed that HTL can investigate any action, which istaken by or at the behest of inter alia any public servant which in hisopinion of HTL is subject of an allegation. Hence discretion is vestedin HTL to arrive at opinion as to whether an allegation is in respect ofan action taken by public servant. As investigation has to be madeonly after preliminary verification and at the stage of examining thecomplaint, it is subjective opinion of HTL which ought to trigger apreliminary enquiry. After conducting preliminary verification underRule 5 of the Rules and with reference to the statement of defencesubmitted by public servant if a conclusion is reached that thecomplaint does not contain any allegations or such allegations arefrivolous and if HTL is satisfied that prima facie case is not made outfor conducting investigation, the complaint may be closed.

Though the institution of Lokayukta is established for theinvestigation of administrative action and though the report submittedby HTL under Section 12 of the Act is final and becomes basis forremoval of a corrupt public servant, HTL cannot be equated to ChiefVigilance Commissioner of Anti Corruption Bureau. To say that HTLshould take up complaints, conduct preliminary verification and finalinvestigation only in respect of those complaints containing allegationsof corruption or corrupt motive, would be ignoring the very object of legislation.

In Britain and Europe, Parliamentary Commissioner forAdministration provides important non-legal remedies and is intendedto control vast bureaucratic machinery which inevitably causes manygrievances and complaints. Explaining purpose of having suchParliamentary Commissioner, HWR Wade and CF Forsyth inAdministrative Law (Eighth Edition) comment as follows.

If something illegal is done, administrative law cansupply a remedy, though the procedure of the courts is tooformal and expensive to suit many complaints. But justifiedgrievances may equally well arise from action which is legal,or at any rate not clearly illegal, when a governmentdepartment has acted inconsiderately or unfairly or where ithas misled the complainant or delayed his case excessivelyor treated him badly. Sometimes a statutory tribunal will beable to help him both cheaply and informally. But there is alarge residue of grievances which fit into none of the regularlegal moulds, but are none the less real. A humane systemof government must provide some way of assuaging them,both for the sake of justice and because accumulatingdiscontent is a serious clog on administrative efficiency in ademocratic country.

The efficacy of enquiry by Parliamentary Commissioner in the words of learned authors is as follows.

Ombudsman is a Sandinavian word meaning officeror commissioner. In its special sense it means acommissioner who has the duty of investigating and reportingto Parliament on citizens’ complaints against thegovernment. An ombudsman requires no legal powersexcept powers of inquiry. In particular, he is in no sense acourt of appeal and he cannot alter or reverse anygovernment decision. His effectiveness derives entirelyfrom his power to focus public and parliamentaryattention upon citizens’ grievances. But publicity basedon impartial inquiry is a powerful lever. Where acomplaint is found to be justified, an ombudsman canoften persuade a government department to modify adecision or pay compensation in cases where thecomplainant unaided would get no satisfaction. For thedepartment knows that a public report will be made andthat it will be unable to conceal the facts from Parliamentand the press. ….. The essence of the ombudsman’stechnique is to receive the complaint informally, to enterthe government department, to speak to the officials andread the files, and to find out exactly who did what andwhy. No formal procedure is involved at any state, nor isany legal sanction in question.

I n Institution of A.P., v T.Rama Subba Reddy[[8]], SupremeCourt considered the question as to whether the employees working in A.P.S.R.T.C., and A.P.State Cooperative Union could be covered bythe sweep of A.P.Lokayukta Act. While holding that these categories ofemployees would not fall within the definition of “public servant” asdefined in Section 2(k)(iii) read with Section 2(i), their Lordshipspointed out the legislative intent behind A.P.Lokayukta Act in thefollowing words.

It may be necessary to note that the legislative intentbehind the enactment is to see that the public servantscovered by the sweep of the Act should be answerable fortheir actions as such to the Lokayukta who is to 'be a Judgeor a retired Chief Justice of the High Court and in appropriatecases to the Upa-Lokayukta who is a District Judge of Grade-I as recommended by the Chief Justice of the High Court, isthat these statutory authorities can work as realombudsmen for ensuring that people's faith in theworking of these public servants is not shaken. Thesestatutory authorities are meant to cater to the need ofpublic at large with a view to seeing that publicconfidence in the working of public bodies remainsintact. When such authorities consist of high judicialdignitaries it would be obvious that such authorities should bearmed with appropriate powers and sanctions so that theirorders and opinions do not become mere paper directions.The decisions of Lokayukta and Upa-lokayukta, therefore,must be capable of being fully implemented. These authoritiesshould not he reduced to mere paper tigers but must bearmed with proper teeth and claws so that the efforts put in bythem are not wasted and their reports are not shelved by theconcerned disciplinary authorities. When we turn to Section12, Sub-section (3) of the Act, we find that once report isforwarded by the Lokayukta or Upa-lokayukta recommendingthe imposition of penalty of removal from the office of a publicservants, all that is provided is that it should be lawful for theGovernment without any further inquiry to take action on thebasis of the said recommendation for the removal of suchpublic servant from his office and for making him ineligible forbeing elected to any office etc. Even if it may be lawful for theGovernment to act on such recommendation, it is nowhereprovided that the Government will be bound to comply withthe recommendation of the Lokayukta or Upa-lokayukta.

A reading of various provisions of A.P. Act would lend supportto our view that HTL can conduct preliminary verification to knowwhether there are allegations against public servants and also to knowwhether everything is going on well in the administration. If somethingis amiss nothing prevents HTL to pull up the erring public servant intheir own interest as well as in the interest of public and redress thepersistent and minor grievances of citizens like not getting pensions,not getting rectification of revenue records, not getting admission in the school/college and the like. We are not suggesting that HTL shouldconsider each and every complaint. Rule 4 of the Rules speaks of inlimine rejection, if a complaint is frivolous and vexatious or not in goodfaith. Section 8 of the Act bars any investigation into an allegation tocomplaint made after expiry of six years or investigation in respect ofwhich public enquiry has been ordered. As directed, learned StandingCounsel for HTL has placed before this Court, the Twenty SecondConsolidated Report of the Institution of Andhra Pradesh Lok Ayuktaand Upa-Lok Ayukta submitted to Hon’ble the Governor of AndhraPradesh as required under Section 12(5) of the Act. We find thatduring report period though as many as 1515 complaints (pertaining to35 departments) were received, 13 ended up in final investigation. 363 complaints were rejected in limine and 718 complaints wereclosed after preliminary verification. In as many as 195 casesgrievances were redressed and complaints were closed.

We have perused complaint No.711/2007/B1 submitted byNorth Andhra Association and its Executive Secretary, ChodipalliRaju. In the said complaint, inaction on the part of District Collectorand Special Officer in finalizing the list of 300 fishermen for beingappointed in GPL is highlighted. It is also stated that due to suchinaction fishermen’s right to life and right to livelihood is seriouslyaffected. These affirmations in the complaint certainly fall withindefinition of Sections 2(a) and 2(b)(i) of the Act. The complaint wasmade to HTL on 19.7.2005 and it was closed by HTL by order dated02.2.2009. On the basis of this, Sri Vedula Srinivas, would urge thatthe order contravenes Section 10(2)(b) of the Act. The submissioncannot be accepted for two reasons. Section 10(2)(b) of the Act as itexisted is to the effect that every investigation shall be completedwithin a period of six months and in any case not exceeding one yearbut by A.P. Act No.I of 2007, Section 10(2)(b) of the Act is substitutedand new provision reads as under.

10. Procedure in respect of investigations

(2) (b) The Lokayukta or Upa-Lokayukta as the case may beshall make an endeavour to complete the investigation withina period of one year from the date of issue of notice in FormNo.VII as prescribed in the rules to the public servants; andwhere it is unable so to do he shall record his reasons forsuch inability.

It is now well settled that any provision prescribing timeschedule for completing an exercise is directory. The provision onlysays that HTL shall make an endeavour to complete investigation andit is not such a binding rule to vitiate any order, secondly the time ofone year is for completion of investigation from the date of issue ofform No.VII which means that after completing preliminary verification so as to conduct investigation the notice is issued. In the case onhand HTL passed orders only at the stage of preliminary verificationand, therefore, Section 10(2)(b) of the Act is not attracted. Therefore,we hold that the impugned order does not suffer from any error onaccount of inherent lack of jurisdiction.

Validity of list of eligible persons

These cases were heard on 27.11.2009 and 01.12.2009 to05.12.2009. On 2.12.2009, learned Government Pleader for Irrigationrequested to adjourn the matter on the ground that he has beenrequested by Principal Secretary to instruct the Advocate General. Asthe matters are taken up on priority, we declined. Though the matterwas being heard on three days, learned AG did not appear. Thearguments were heard and the matter was reserved on 05.12.2009. On17.12.2009, learned Advocate General circulated a brief note for ourconsideration.

A perusal of the same would show that nothing much new has beenbrought out in the said note and it is almost similar to counter affidavitsfiled in various cases. Be that as it is, on the point underconsideration, we will first deal with RR Policy of Government of A.P.,as revealed in G.O.Ms.No.68, dated 08.5.2004. Though in the counteraffidavit of the Special Officer filed in WP No.17442 of 2009, anallegation was made that said G.O. pertains only to irrigation projectsand therefore has no application to present cases, the Government asseen from the note do not dispute its applicability. It is also admittedthat the Government issued G.O.Ms.No.236, naming theCommissioner and Administrator for implementing RR Policy.RR Policy

What happens when private land is acquired for implementationof development and infrastructure project? RR Policy recognizescultural, social and psychological consequences of displacement ofpersons from their land, home and depriving the means of livelihood. So as to address such issues, the Government visualized to approachthe problem with human touch and forethought in respect of sociallyand economically disadvantaged and vulnerable sections. TheGovernment therefore constituted a committee vide G.O.Ms.No.70,dated 15.7.2004 for preparation of draft RR Policy. Therecommendations were discussed at State level meeting of officialsfrom departments of industries, energy, R&B, environment, forests,science and technology, tribal welfare, Law and Revenue. Thereafterin supersession of the earlier orders in G.O.Ms.No.98, IrrigationDepartment dated 15.4.1996 and G.O.Ms.No.64, Social WelfareDepartment, dated 18.4.1990, the Government issued G.O.Ms.No.68,Irrigation Department, dated 08.5.2005, containing RR Policyguidelines.

The said Government order on RR speaks of appointment ofadministrator for implementation of RR package in addition toappointing the Secretary of TR&B Department as Commissioner. Theguideline lays down the following methodology for implementing thepolicy.

1.3 The policy essentially addresses the need to providesuccor to the asset less rural poor, support the rehabilitationefforts of the resource poor sections, namely, small andmarginal farmers, SCs/STs and women who have beendisplaced. Besides, it seeks to provide a broad canvas foran effective dialogue between the Project AffectedFamilies and Project Displaced Families and theAdministration for Resettlement & Rehabilitation. Such adialogue is expected to enable timely completion of projectswith a sense of definiteness as regards costs and adequateattention to the needs of the displaced persons especiallythe resourceless poor sections. The intention is to impartgreater flexibility for interaction and negotiation so thatthe resultant Package gains all-round acceptability in theshape of a workable instrument providing satisfaction toall stakeholders/Requiring Bodies.succor to the asset less rural poor, support the rehabilitationefforts of the resource poor sections, namely, small andmarginal farmers, SCs/STs and women who have beendisplaced. Besides, it seeks to provide a broad canvas foran effective dialogue between the Project AffectedFamilies and Project Displaced Families and theAdministration for Resettlement & Rehabilitation. Such adialogue is expected to enable timely completion of projectswith a sense of definiteness as regards costs and adequateattention to the needs of the displaced persons especiallythe resourceless poor sections. The intention is to impartgreater flexibility for interaction and negotiation so thatthe resultant Package gains all-round acceptability in theshape of a workable instrument providing satisfaction toall stakeholders/Requiring Bodies.

RR Policy classifies the persons affected by developmentprojects, into two categories, namely, Project Affected Family (PAF)and Project Displaced Family (PDF). PAF means a family whosesource of livelihood is substantially affected and has been residingcontinuously for not less than three years before the project is taken upin the affected zone, which means the area of village or locality whichis directly or indirectly affected. PDF means any family who has beendisplaced by reason of acquisition of a dwelling house. Para 5(chapter VI) of Government Order contains modalities for carrying outsurvey and preparing schemes for RR. Paragraph 6 (chapter VI)contains the RR benefits for PAFs. The said benefits shall have to beextended to all PAFs, PDFs whether they are Below Poverty Line(BPL) or non-BPL. The benefits are: free housesite for PDF, one-timefinancial grant to BPL families, allotment of agricultural land in lieu ofacquired land in addition to financial assistance of Rs.10,000/- perhectare to PAFs, grant of cattle shed, grant for transporting material,minimum agricultural wages for a stipulated period. Para 6.9envisages income generating scheme of grant of Rs.25,000/- for eachrural artisan/small trader of PAFs. In addition to this, RR policycontemplates provision of basic amenities at resettlement centres.

Paragraph 7 (chapter VII) of G.O.Ms.No.68, contains DisputeRedressal Mechanism (DRM). Para 7.1 to para 7.4 contains the intra-state projects DRM. As per para 7.1, State Government shallconstitute RR committee under the chairmanship of administrator to monitor and review the progress of implementation of the scheme ofRR for PAFs. Such committee shall include (i) a representative ofPAP[[9]]women; (ii) a representative of PAP SC/ST; (iii) arepresentative of voluntary organisation; (iv) a representative of leadBank; (v) chairpersons of Panchayat Raj Institutions (PRIs) in thelocality and (vi) MPs/MLAs of the area. This committee is entrustedwith framing of regulatory procedure of its own.

Paragraph 7.2 stipulates that the State Government shallconstitute Grievance Redressal Mechanism under the chairmanship ofCommissioner for RR and shall also prescribe the powers andfunctions of such body. Any PAF if aggrieved for not being offeredadmissible RR benefits under the policy, can move appropriatepetition for redressal. The GRM shall have power to consider anddispose of complaints relating to RR against the decision ofadministrator /RR committee at project level and issue directions asare deemed proper for such grievances.

How far and to what extent the District Collector, Special Officerand the Government followed RR Policy guidelines referred to hereinabove. The State has not placed before this Court any scheme/plan forRR prepared and published as per Chapter V of the policy. Nomaterial is placed before this Court to show that GRM is in place tohear and dispose of the petitions filed by PAFs, PDFs and PAPs. It isnot clear whether it is ignorance of the officials or their negligence,which resulted in a situation where the binding policy guidelines of theGovernment are ignored. There is no dispute that the Governmentissued orders in G.O.Ms.No.236 dated 08.11.2005. While directing toimplement RR policy for Gangavaram Port Project, Governmentappointed Secretary to Government as Commissioner and JointCollector, Visakhapatnam as administrator. It appears that this G.O.was forgotten and no role was played by these two officials inimplementing RR package in respect of Gangavaram Project. Nomaterial is placed before this Court as to what are the steps theseofficials have taken in implementing RR package for Gangavaram.

Though there is no such averment in any of the counters, in thenote it is alleged that PAFs/PDFs of Dibbapalem and Gangavaram notbeing satisfied with RR package, entered into agreement on 05.5.2006for providing 300 jobs in GPL. Be that as it is, as already referred tohereinabove, in respect of Dibbapalem village, there were threeagreements on 04.8.2005, 17.10.2005 and 04.10.2006. In respect ofGangavaram and other villages there were two agreements on05.5.2006 and 25.5.2006. None of these agreements, either in thepreamble or in the body of the agreement, such an averment is madethat the PAFs/PDFs were not satisfied with RR policy. Therefore, wehave strong reasons to believe that the well intended RR policy contained in G.O.Ms.No.68 was totally ignored by the Government andthe District Administration.

Curiously without there being any sanctity under theConstitution of India, the local MLAs, the Ministers and Governmentofficials and promoters of societies went on negotiating and enteringinto agreements for providing various RR benefits as well as jobs. It isno doubt true that as per Para 7.1, Project level RR committee shall beconstituted with different persons referred above including MLAs/MPs. But such committee is intended to implement the policy/plan preparedafter detailed survey by the administrator and approved by theGovernment, after considering the objections with regard to draftscheme/plan. In respect of legality, validity and constitutionality of theagreements, we leave the matter there.

Employment to Project Displaced Persons

(i) Employment Rights

As already noticed, R&R benefits for PAFs/PAPs can eveninclude income generating scheme grant. It is contended by the Stateand GPL that R&R policy does not confer any right on affected personsto seek employment in the project, on the ground that they have beendeprived of their land, residences, avocation and livelihood. Aftergiving due consideration to the policy in the light of the rightguaranteed under Article 21 of Constitution as interpreted by SupremeCourt in Olga Tellis (supra), Narendra Kumar Chandla (supra) andRaja Mahendra Pal (supra), we are convinced that what is provided inthe policy is minimum benefit to be taken care of by the State and thepromoters of the project. The policy of the Government does not barPAPs/PAFs/PDFs making out a grievance with regard to the loss oflivelihood and seek necessary redressal under the Constitution.

The interpretation of the Constitution especially fundamentalrights has not been narrow and pedantic, when the technologicalinnovations go on sweepingly alter cultural, social and economicaspects of human life, constitutional Court cannot be a mute spectator.It is Court’s duty to protect the fundamental rights of the citizens andensure that the State, its players, its hybrids and its creationsdischarge public functions do not indirectly or dubiously trample therights of the people making the preambular promise of the Constitutiona mirage and empty promise. Thus, even if there is silence in the R&RPolicy, it has to be read in accordance with the Constitution and Stateand project promoters cannot escape from their duty and liability towork out schemes to provide alternative employment as compensatingalternatives. This also derives support from Doctrine of Public Trust.

(ii) Public Trust

Doctrine of Public Trust is part of Constitutional law of sovereigncontrol over the property of the people. It envisages that the Land

surface water, ground water, navigable water and land beneath,forests, roads, tanks, tank beds, streets, lanes, sewage canals,drainage canals, hills, mountains, deserts, seashores, beaches,continental waters, territorial waters with land below belong to thesovereign. The title of the State in these is held in trust for the people ofthe State. When the sovereign holds these nature’s gifts in trust, and itis bound to put them to any use to subserve public interest. Any Stateaction which subverts public interest either by denying the communityrights or diluting human rights or infringing fundamental rightsguaranteed to the citizens, would be against such trust.

In Illinois Central Railroad Company v People of the State ofIllinois[[10]], the Illinois Legislature made a substantial grant ofsubmerged lands - a mile strip along the shores of Lake Michiganextending one mile out from the shoreline -to the Illinois CentralRailroad. In 1873, the Legislature changed its mind and repealed the1869 grant. The State of Illinois sued to quit title. The Court whileaccepting the stand of the State of Illinois held that the title of the Statein the land in dispute was a title different in character from that whichthe State held in lands intended for sale. It was different from the titlewhich the United States held in public lands which were open to pre-emption and sale. It was a title held in trust - for the people of the Statethat they may enjoy the navigation of the water, carry on commerceover them and have liberty of fishing therein free from obstruction orinterference of private parties. The abdication of the general control ofthe State over lands in dispute was not consistent with the exercise ofthe trust which required the Government of the State to preserve suchwaters for the use of the public. It was held:

That the state holds the title to the lands under thenavigable waters of Lake Michigan, within its limits, in the samemanner that the state holds title to soils under tide water, by thecommon law, we have already shown; and that title necessarilycarries with it control over the waters above them, wheneverthe lands are subjected to use. But it is a title different incharacter from that which the state holds in lands intended forsale. It is different from the title which the United States hold inthe public lands which are open to pre-emption and sale. It is atitle held in trust for the people of the state, that they may enjoythe navigation of the waters, carry on commerce over them,and have liberty of fishing therein, freed from the obstruction orinterference of private parties. The interest of the people in thenavigation of the waters and in commerce over them may beimproved in many instances by the erection of wharves, docks,and piers therein, for which purpose the state may grant parcelsof the submerged lands; and, so long as their disposition ismade for such purpose, no valid objections can be made to thegrants. It is grants of parcels of lands under navigable watersthat may afford foundation for wharves, piers, docks, and other

structures in aid of commerce, and grants of parcels which,being occupied, do not substantially impair the public interest inthe lands and waters remaining, that are chiefly considered andsustained in the adjudged cases as a valid exercise oflegislative power consistently with the trust to the public uponwhich such lands are held by the state. But that is a verydifferent doctrine from the one which would sanction theabdication of the general control of the state over lands underthe navigable waters of an entire harbor or bay, or of a sea orlake. Such abdication is not consistent with the exercise of thattrust which requires the government of the state to preservesuch waters for the use of the public. The trust devolvingupon the state for the public, and which can only bedischarged by the management and control of property inwhich the public has an interest, cannot be relinquished bya transfer of the property. The control of the state for thepurposes of the trust can never be lost, except as to suchparcels as are used in promoting the interests of the publictherein, or can be disposed of without any substantialimpairment of the public interest in the lands and watersremaining.

(emphasis

supplied)

In M.C. Mehta v Kamal Nath[[11]], the Apex Court has quotedwith approval an article entitled 'Public Trust Doctrine in NaturalResource Law: Effective Judicial Intervention' of Joseph L. Sax,Professor of Law, University of Michigan which is in the followingterms :

The source of modem public trust law is found in a conceptthat received much attention in Roman and English law - thenature of property rights in rivers, the sea, and the seashore. Thathistory has been given considerable attention in the legal literature,need not be repeated in detail here. But two points should beemphasized. First, certain interests, such as navigation andfishing, were sought to be preserved for the benefit of the public;accordingly, property used for those purposes was distinguishedfrom general public property, which the sovereign could routinelygrant to private owners. Second, while it was understood that incertain common properties - such as the seashore, highways, andrunning water - 'perpetual use was dedicated to the public', it hasnever been clear whether the public had an enforceable right toprevent infringement of those interests. Although the Stateapparently did protect public uses, no evidence is available thatpublic rights could be legally asserted against a recalcitrantgovernment.

Yet again, Supreme Court held:

The Public Trust Doctrine primarily rests on the principlethat certain resources like air, sea, waters and the forests havesuch a great importance to the people as a whole that it would be wholly unjustified to make them a subject of privateownership. The said resources being a gift of nature, theyshould be made freely available to everyone irrespective of thestatus in life. The doctrine enjoins upon the Government toprotect the resources for the enjoyment of the general publicrather than to permit their use for private ownership orcommercial purposes. According to Professor Sax the PublicTrust Doctrine imposes the following restrictions ongovernmental authority:

Supreme Court invoked and applied Doctrine of Public Trust inM.I.Builders v Radhey Shyam Sahu[[12]]and Intellectuals Forum vState of Andhra Pradesh[[13]]. In a recent Judgment in FomentoResorts & Hotels Limited v Minguel Martins[[14]], all possibleaspects of doctrine have been adverted to by Supreme Court. It is aptto extract the relevant paragraphs in the Judgment (paras 52, 53, 54,55 and 65 of SCC).

The matter deserves to be considered from anotherangle. The public trust doctrine which has been invoked byMs. Indira Jaising in support of her argument that the beach inquestion is a public beach and the appellants cannot privatizethe same by blocking/obstructing traditional access availablethrough survey No. 803 (new No. 246/2) is implicitly engraftedby the State Government in Clause 4(ix) of the agreement. …The public trust doctrine enjoins upon the Government toprotect the resources for the enjoyment of the general publicrather than to permit their use for private ownership orcommercial purposes. This doctrine puts an implicit embargoon the right of the State to transfer public properties to privateparty if such transfer affects public interest, mandatesaffirmative State action for effective management of naturalresources and empowers the citizens to question ineffectivemanagement thereof. … The heart of the public trust doctrineis that it imposes limits and obligations upon governmentagencies and their administrators on behalf of all the peopleand especially future generations. For example, renewableand non-renewable resources, associated uses, ecologicalvalues or objects in which the public has a special interest(i.e. public lands, waters, etc.) are held subject to the duty ofthe State not to impair such resources, uses or values, even ifprivate interests are involved. The same obligations apply tomanagers of forests, monuments, parks, the public domainand other public assets. Professor Joseph L. Sax in hisclassic article "The Public Trust Doctrine in NaturalResources Law: Effective Judicial Intervention" (1970),indicates that the Public Trust Doctrine, of all concepts knownto law, constitutes the best practical and philosophicalpremise and legal tool for protecting public rights and forprotecting and managing resources, ecological values orobjects held in trust. … The Public Trust Doctrine is a tool forexerting long-established public rights over short-term public rights and private gain. Today, every person exercising his orher right to use the air, water, or land and associated naturalecosystems has the obligation to secure for the rest of us theright to live or otherwise use that same resource or propertyfor the long term and enjoyment by future generations. To sayit another way, a landowner or lessee and a water right holderhas an obligation to use such resources in a manner as not toimpair or diminish the people's rights and the people's longterm interest in that property or resource, including down-slope lands, waters and resources. …We reiterate that naturalresources including forests, water bodies, rivers, sea shores,etc. are held by the State as a trustee on behalf of the peopleand especially the future generations. These constitutecommon properties and people are entitled to uninterrupteduse thereof. The State cannot transfer public trust propertiesto a private party, if such a transfer interferes with the right ofthe public and the Court can invoke the public trust doctrineand take affirmative action for protecting the right of people tohave access to light, air and water and also for protectingrivers, sea, tanks, trees, forests and associated natural eco-systems.

'Three types of restrictions on governmental authority are oftenthought to be imposed by the public trust: first, the property subject tothe trust must not only be used for a public purpose, but it must be heldavailable for use by the general public; second, the property may notbe sold, even for a fair cash equivalent; and third the property must bemaintained for particular types of uses.' Thus, if public trust is to bedischarged properly, the State cannot part with land or water sourceswithout retaining the control on the use of the property and right toresumption. The Government of A.P., allotted Acs.1800.00 of land toGPL at a cost of Rs.2.86 lakhs per acre for Acs.1400.00 and atRs.1,50,000/- per acre for Acs.400.00. The Government alsocontributed Rs.53.73 crores towards 10.39% equity, which was thetotal cost of the land allotted. In addition, the valuable seashore, fishlanding areas, boat launching points forming part of the livelihood offishermen have been lost. GPL also got other fiscal and non-fiscalconcessions and grants from State. But State did not retain any controlto project, sustain and maintain the right of the fishermen to launchtheir fishing boats into the sea from the place where they had beendoing for over centuries. Obviously, for the reason that any fishing bytraditional fishermen at or near Dibbapalem would cause hindrance forconstruction of the Port as well as movement of cargo/merchant shipsin and out of the harbour, the fishermen were to be totally prohibitedfrom using Dibbapalem shore for fishing operations. In that view of thematter, the State which used to indirectly control seashore has nowabdicated such power in favour of GPL. When such valuable asset ofthe community over which State exercised control was lost, can it be said that provision of monetary compensation, development of analternative boat launching seashore at a different place away fromvillage and provision of house site, construction grant for house wouldbe sufficient compensation? In our view, under the Constitution theseall are benefits contemplated under the Government order or at bestact as temporary balm to the unhealable wounds inflicted onfishermen. In the long run, the monetary compensation for deprivationof one’s right would never be an equal alternative as it is always betterto have a goose which gives a golden egg than eating golden gooseitself. In that view of the matter, we are convinced that in appropriatecases, it is a valid grievance for the affected people to seek remedy foremployment in the project itself for the sake of which they had beenforcibly made to alter their cultural, social and economic conditionsand were left to the mercy of project promoters.

(ii) Agreements’ Effect

Three agreements came into existence in which the fishermen,residents and others of Dibbapalem village were concerned. Firstagreement, dated 04.08.2005 does not contemplate provision ofemployment by GPL. The agreements dated 17.10.2005 and04.09.2006 however speak of providing employment and there is nodispute that GPL has provided employment to 300 Dibbapalem PAPs.There are two agreements with regard to R&R benefits to personsbelonging to Gangavaram and four other villages. All theseagreements also speak of various benefits which were given to thevillages. Here we may refer to information furnished by DistrictCollector to the National General Secretary, Bharatiya Port &Shipyard, in response to the application under Right to Information Act,2005 (this is filed by petitioners in W.P.No.17442 of 2009).

R&R Package Details of Gangavaram Village 1 to 5 omitted

6. R&R Package details.

For Boat Owners

a. Spl.Package Amount … Rs.25,000/- each

b. Boat Shifting Charges … Rs.15,000/- each

c. Boat maintenance charges… Rs.3,000/-each per month

d. Monthly wages … Rs.3,000/- each per month For Boat Workers

a. Spl.Package amount … Rs.25,000/- each

b. Monthly wages … Rs.3,000/- each per month For other Fishermen

a. Spl. Package amount … Rs.20,000/- each

b. Monthly wages … Rs.2,000/- each per month

Assured Employment

Number of jobs assured … 300 Nos.

As already pointed out, the R&R policy of the Government issilent on the question of providing employment to Project DisplacedPersons. However, agitations by all the aggrieved led to negotiationsand presumably in those meetings, GPL agreed to provide 300 jobs toPAPs of Dibbapalem, which was totally relocated to new place and300 jobs to the people of Gangavaram, Pallipalem, Peddapallipalem,Chinapallipalem and Jalaripallipalem. This appears to be not enough.There are hundreds of people who lost their livelihood and providingonly 300 jobs gave raise to another serious area of contest. How toidentify the eligible persons for providing employment? On what basisonly 300 persons out of the eligible list are to be provided the jobs? Toappreciate these aspects, we may refer to various reports submitted byDistrict collector and Special Officer to HTL and the orders passedthereon from time to time.(iii) Lokayukta Proceedings Complaint No.711/2007/B1 was initiated by the petitioners inW.P.No.21618 of 2009, who are also arrayed as respondents inW.P.No.15220 and 17150 of 2009. HTL called for report of DistrictCollector on 16.10.2005. In response thereto, the latter sent a reportvide letter, dated 01.08.2007 (extracted hereinabove). As per this letter,Assistant Director of Fisheries, after conducting survey furnished list of429 active fishermen in Gangavaram village who lost their livelihooddue to construction of Port. After negotiations, a list of 2,826 fishermenwas prepared for extending R&R package. These included 115 boatowners, 1100 kalasis/workers and 1,611 engaged in fishing activity.The Collector also reported that GPL promised to provide 300 jobs andthat the committee was directed to conduct Grama Sabha foridentifying actual fishermen whose livelihood is affected. As the list ofsubstantially affected people was not prepared, another report wascalled for. In response to which, the Collector reported that thecommittee has not furnished the list for providing permanent jobs asdirected by HTL. It was not done immediately. By communicationsdated 29.04.2008 and 07.06.2008, the Special Officer sought time forfinalizing the list of 300 persons for providing jobs. In the letter, SpecialOfficer reported that in the Grama Sabha conducted on 06.06.2008, thepresence of officials, villagers and members of various villagecommittees, photographs were exhibited on the screens, andobjections were called for and 300 applications were scrutinized. Afterconsidering the same, on 09.06.2008, HTL recorded the objectionsraised by Chodipalli Raju of North Andhra Association and directedSpecial Officer to file final report. On 09.07.2008, such report wassubmitted giving the following details of the lists received from variouscommittees of four villages as well as final list prepared after considering the same in Grama Sabha on 06.06.2008 and 05.07.2008.

When objections were raised, HTL directed Special Officer toappear and submit fresh report with proof. SO obeyed and on15.09.2008, gave the details of finalized list of beneficiaries. The sameis as below.

1) Applications received directly by the Special Officer from

2) Lists/applications received from various committees of Gangavaram for R&R package:

At that stage, HTL directed SO to invite objections andsuggestions and evolve criteria and then based on the same, selectthe list of 300 eligible persons. The complainant was directed toprepare the first list of 300 persons, who should be considered forproviding employment. In response thereto, as directed, SO convenedmeeting of various associations on 14.10.2008. Taking thesuggestions given therein, he issued notice virtually inviting biodatasheets from 880 persons and specific objections keeping in view thefollowing criteria.

The applicant should be-

a . Resident of the Gangavaram or its surrounding fourvillages.villages.

b. Age should be between 18 and 35 years.

c. Belonging to affected fishermen community, and

d. One person from one family and that major married sons living with their family separately should also beconsidered as separate family.considered as separate family.

On 30.01.2009, SO reported to the Registrar of Lokayukta as follows.

In this connection, it is submitted that as per Hon’bleLokayukta Orders, the Special Officer has conducted agrama sabha on 21.01.2009 at Office of the Tahsildar,Pedagantyada for enquiry into the objections received against135 names out of the list of 317 fishermen notified in thevillage after duly informing petitioners and also the personsagainst whom the objections were leveled and the public ofthe village in general. The members of different FishermenCommittees of Gangavaram Village along with personsagainst whom objections were made have attended theGramasabha. The objections were read out and the responseof the villagers who have attended the Gramasabha wasnoted down.

Therefore, as per the Hon’ble Lokayukta orders, theentire 771 list duly deleting the prima facie objectionsregarding age, police case etc., prepared in the order ofpreference as follows: I) Boat Owners, II) Boat Workers, III)Dragnet and IV) Fishing activity.

In view of the above facts, I request the Hon’bleLokayukta to kindly issue necessary directions in the matter.

Considering the same, HTL passed impugned order directing theGPL to provide employment to such number of people from out of thelist in accordance with seniority without any deviation and furtherobserved that if there is any agreement or if there is any direction bythe Government to provide employment to more number of people thanwere originally agreed. From the proceedings that took place beforeHTL as enumerated hereinabove, it is very clear that until a directionwas issued to evolve a criteria vide common order dated 17.09.2008

passed by HTL, no criteria whatsoever was evolved either foridentifying the eligible PAPs or for shortlisting the candidates. Counselappearing for various petitions expressed doubt even with regard tothe identification of eligible PAPs, especially with regard to thepersons who were allegedly to be non-residents of villages, belongingto non-fishermen categories and ineligible persons. Be that as it is,only after HTL issued directions, a list of eligible persons wasprepared by laying down criteria as noticed hereinabove. The list soprepared was further pruned by taking up the factors like whetherselectee is a boat owner or boat worker or dragged it or engaged infishing activity.

Issues

Boat owners were given priority in preference to others andthose engaged in direct/indirect fishing activity found place in the last.There was some criticism about this procedure also before us whichwould be adverted to little while later. All those persons who fall undercategories of PAFs/PDFs/PAPs in one way belong to one class. Theyare fishermen, they depended on fishing for livelihood and came fromsimilar socio-cultural background though economic aspects mayslightly vary – the boat owner who engages kalasis/workers a littlericher than others. When it comes to the question whether they areaffected by Gangavaram Project, vis-à-vis loss of livelihood, all of themstand on the same footing. But when we have few jobs to whom theyshould go. This necessarily requires classification of these affectedpersons into one category who are most affected and second categorywho are not so much affected.

It is needless to mention that Article 14 of the Constitutionprohibits class legislation but does not bar classification for thepurpose of conferring benefits on identified group of persons. Whileresorting to such classification, there is no necessity to insist uponscientifically perfect or logically complete division, nor there is need forprecise intelligible differentia. It is not clear on what basis the boatowners were given priority in procurement of jobs and it is not clear onwhat basis kalasis who are paid daily wages by the boat owners insecond priority. If the criteria evolved is not reasonable or rationale, theclassification cannot be sustained. In Indra Sawhney v Union ofIndia[[15]], the importance of evolving correct criteria for identification ofdisadvantaged has been explained by Supreme Court as follows(paras 529 and 530 of SCC)

So long as correct criterion for the identification of thebackward classes is applied, the result arrived at cannot bequestioned on the ground that other valid criteria were alsoavailable for such identification. It is possible that the result soarrived at may be defective marginally or in marginal numberof cases. That does not invalidate the exercise itself. Nomethod is perfect particularly when sociological findings are in issue. Hence, marginal defects when found may be cured inindividual cases but the entire finding is not rendered invalidon that account. … The corollary of the above is that when thecriterion applied for identifying the backward classes is eitherperverse of per se defective or unrelated to such identificationin that it is not calculated to give the result or is calculated togive, by the very nature of the criterion, a contrary orunintended result, the criterion is open for judicial examination.

Therefore, this Court is required to apply the classical principleof judicial review as to whether the decision making process by HTL isvalid. We have no manner of doubt that HTL passed impugned orderafter calling for various reports from the District Collector and SpecialOfficer and after hearing the objections of the complainants as well asthose who appeared in the proceedings. Indeed, it is the HTL, who firstpointed out the lack of criteria and directed the SO to prepare the listapplying the criteria which was directed to be evolved after conveningthe meetings of the committees in the villages. Therefore, we do notfind any error in the impugned order insofar as the decision makingprocess is concerned. We may also add that ultimate directions wereissued by HTL based on material placed before him. Ordinarily judicialreview must stop here. But having regard to the fact that the veryvaluable right to livelihood has been taken away by the State actionand having regard to the fact that the GPL as agreed and is willing toprovide only 300 jobs, we are inclined to set aside the ultimate orderissued by HTL directing appointment of 300 persons found included inthe final list submitted by Special Officer.

The reasons for the above view are these. Firstly, either inpreparing R&R Scheme/plan or identifying the beneficiaries forconferring the benefits under R&R package, the orders inG.O.Ms.No.68 were followed more in breach and the Commissionerand Administrator appointed in G.O.Ms.No.236, dated 08.11.2005,abdicated their powers. Secondly, though GPL was not a party, HTLgave directions to them. Thirdly, District Collector and Special Officerdid not place entire material before HTL. Fourthly, though R&R policyvide paragraph 7.1 envisages inclusion of various representatives andelected persons in the R&R committee, no such committee wasconstituted nor any criteria was evolved for identifying PAPs thoughinitially after survey 2,826 fishermen were identified for extending thepackage. Fifthly, many of the persons who are initially included in thelist of beneficiaries were excluded in the list of job eligible persons andmany persons who are excluded initially are included in such list andlastly, no criteria was evolved at the stage of preparation of lists forproviding jobs. The criteria was evolved only at the time of finalselection and this, as rightly contended by some of the counsel, deniedthe right of project affected persons from being considered for the jobs.

(iii) Exclusion of certain persons

W.P.No.18451 of 2009 is filed by twenty three (23) fishermen ofGangavaram village. They were initially included in the list of eligiblepersons. However, their names were deleted on the ground that thereare criminal cases registered against them. In the counter affidavit filedby SO, it is admitted that petitioner Nos.4, 6, 12 and 16 are foundincluded in the final list, that petitioner Nos.2, 5, 8, 10, 11, 14, 17, 18,22 and 23 are included in the list of 771 persons and that theremaining petitioners 1, 3, 7 and 9 are involved in criminal casesregistered under Section 307 of Indian Penal Code, 1860. Inclusion ofpetitioner Nos.13, 15, 19, 20 and 21 in the list is denied.

The attention of this Court is invited to clause 3 of the agreement,dated 05.05.2006 and clause 3 of agreement dated 25.03.2008. Thesetwo clauses are to the effect that all the criminal cases filed againstfishermen will be withdrawn after law and order is maintained in thevillages and after waiting for six months to watch the conduct of theaccused persons. GPL is also a signatory to the agreements. This onlysuggests that all the cases were filed against some of the petitioners inthis writ petition in connection with the agitations and strikesconducted by them protesting loss of livelihood. Of late, it is more oftenthan not that the Government negotiates with persons resorting todemocratic protest and agrees to withdraw all the cases filed againstsuch persons. Probably same must have weighed when the Hon’bleMinisters and other officials inked the agreements with representativesof fishermen. Therefore, it is for the Government to consider and passnecessary orders for withdrawal of the cases. Nonetheless, for thereason that criminal cases are pending, those petitioners whosenames are included in the eligible lists, cannot be denied the job inGPL. Even according to Andhra Pradesh Civil Services (Conduct)Rules, unless and until a person is convicted, he cannot be deniedemployment. Therefore, mere pendency of criminal cases does not bara citizen seeking employment for the public/private sector.

We will now consider the relief in four groups of writ petitions.Writ petition Nos.15220, 17150 and 17442 of 2009 are partly allowed.The order of HTL insofar as the same directs GPL to appoint 300persons from the list furnished by the Special Officer is set aside. Wedirect the District Collector and Special Officer to evolve eligibilitycriteria and consider all 771 persons including those against whomcriminal cases are pending with reference to criteria. Needless tomention while evolving such criteria, the Government or the DistrictCollector, as the case may be, shall also keep in mind the questionwhether a person is lost livelihood totally or such person is providedwith alternatives to carry on the same avocation for livelihood, inaddition to the benefits already conferred on such persons. The District

Collector and Special Officer shall also consider all persons belongingto Gangavaram, Pallipalem, Peddapallipalem, Chinapallipalem andJalaripallipalem before finalizing the list. For that purpose, they maypublish a notice in the villages inviting applications and also announceby tom-tom stipulating a particular day before which applicationsshould be submitted. It shall be open to conduct enquiry into suchapplications with reference to evidence produced and then finalise thelist. As and when the list is finalized, the District Collector shallconvene a meeting of officials of GPL and all the Presidents andSecretaries of various fishermen societies/associations beforefinalizing the list of eligible persons. In this regard, keeping in view ourobservations supra, we also direct the Government of Andhra Pradeshto explore possibilities of providing more number of jobs either inGangavaram Port or related ancillary units. Writ petition No.20618 of2009 are concerned which are filed seeking a direction to provide thejobs as per the final list prepared by the second respondent, standdismissed. Writ petition Nos.3936, 16525, 17955, 18451 and 20767 of2009 and writ petition Nos. 18902 of 2008, 20757 and 22105 of 2009are disposed of in terms of the orders passed in first group of writpetitions.

All the writ petitions shall stand disposed/dismissed in terms ofthe orders as above. There shall be no order as to costs.

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(V.V.S.RAO, J)

.12.2009

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(B.N.RAO NALLA, J)

NOTE:L.R. Copy be marked.(By order)YS/Pln [1](1985) 3 SCC 545: AIR 1986 SC 180(1985) 3 SCC 545: AIR 1986 SC 180

[2](1994) 4 SCC 460: AIR 1995 SC 519(1994) 4 SCC 460: AIR 1995 SC 519

[3](1999) 4 SCC 43: AIR 1999 SC 1786(1999) 4 SCC 43: AIR 1999 SC 1786

[4]Transport, Roads and Buildings (Ports) DepartmentTransport, Roads and Buildings (Ports) Department [5](1997) 9 SCC 42(1997) 9 SCC 42

[6]1992(3) ALT 224 (DB)[7]1996(4) ALT 1072 (DB)[8](1997) 9 SCC 42[9]Project Affected Person[10]146 US 387 : 36 L Ed 1018 (1892)[11](1997) 1 SCC 388[12](1999) 6 SCC 464[13](2006) 3 SCC 549[14](2009) 3 SCC 571[15]1992 Supp (3) SCC 217 : AIR 1993 SC 477