@JUDGMENTTAG-ORDER
L. Narasimha Reddy, J.@mdashThe petitioners are proprietary concerns and Cinema Theatres at Miyapur. The Tahsildar, Sherlingampalli Mandal - 3rd respondent, issued a show-cause notice u/s 7 of the A.P. Land Encroachment Act (for short ''Land Encroachment Act'') on 10-09-2010 alleging that the petitioners constructed a building covering the Full Tank Level (FTL) of an irrigation tank and a Nala to an extent of Ac. 0.04 guntas of land in Survey No. 71 of Miyapur Village. According to him, the property so encroached is vested in the Government u/s 24 of the A.P. (Telangana Area) Land Revenue Act (for short ''Land Revenue Act''). The petitioners were required to show cause as to why, they be not evicted from the encroached portion of the land. The petitioners submitted explanation on 25-09-2010. It was stated that the theatres were constructed on the basis of a permission granted by the Government of Andhra Pradesh and the Joint Collector, Ranga Reddy District under the A.P. Cinema (Regulation) Act, 1955, and the Rules made thereunder. The petitioners also stated that a writ petition, taken up as Public Interest Litigation (PIL), challenging the permission accorded to them was dismissed by the High Court. They stated that the land in Survey No. 71 is owned by them and that the show cause notice is vague. Ultimately they requested the 3rd respondent to drop further action. It was mentioned that the proposed action may constitute contempt of Court.
2. The 3rd respondent passed a detailed order, dated 20-05-2011, obviously, u/s 6 of the Land Encroachment Act. She referred to the gist of the notice, the explanation and other submissions made in response thereto. It was observed that under the guise of the orders of stay, obtained in Writ Petition No. 22323 of 2010, filed against the Municipal Corporation, further construction was being made contrary to the spirit of the order. It was ultimately, mentioned that the construction made over Ac. 0.04 guntas of land, which vested in the Government, u/s 24 of the Land Revenue Act, is contrary to law and required the petitioners to remove the same within seven days from the date of receipt of the order. The petitioners challenge the said order.
3. The petitioners pleaded that the entire construction was made on a patta land, on the basis of a permission accorded by the Government and that there is absolutely no basis for issuing the notices or passing the impugned order. The petitioners contend that once it is not disputed that the petitioners are the owners of the land, the mere fact that Nala is passing through a portion of it does not vest portion of the land in the government. As regards the contention about making of illegal construction, the petitioners contend that an application for regularization of unauthorized construction has been made and at any rate, the 3rd respondent has no jurisdiction to deal with the matter.
4. The 3rd respondent filed two counter-affidavits; one dealing with the contents of the writ petition, and the other narrating the factum of the petitioners, proceeding with the construction, even after receiving the proceedings. The 3rd respondent states that the Cinema Theatres were constructed on the strength of a permission said to have been granted by the Government, totally covering a Nala, which is a feeder channel to the irrigation tank, inspite of the fact that the land covered by the Nala is vested in the Government. It is further stated that though the permission accorded by the Government was for construction of Theatres, the petitioners made huge unauthorized construction, without any permission from any authority under the guise of an interim order passed by this Court. It is also stated that the very fact that an application for regularization is made, discloses that it was made unauthorisedly even while the construction of theatres itself is surrounded by controversy. The 3rd respondent pleaded that the construction was made covering FTL and obstructing flow of water, thereby bringing about a hazardous situation for the public at large, in the area. By making reference u/s 24 of the Land Revenue Act, and Section 2 of the Land Encroachment Act, the 3rd respondent pleads that the Nalas and water bodies, wherever situated, vest in the Government, unless ownership rights are conferred upon the private individuals and that in the instant case, no such conferment has taken place.
5. in the counter-affidavit, filed by the 3rd respondent, it is stated that in utter disregard of the orders passed by this Court in another writ petition, the petitioners proceeded with the construction and have brought about grave and hazardous situation threatening the very existence of the canal and safety of the tank, apart from causing hardship to the public.
6. M/s. Human Rights & Consumer Protection Cell (BHEL MIG Residents'' Welfare Society) got itself impleaded as 4th respondent. In the affidavit filed by it, the 4th respondent stated that the petitioners constructed the theatres, not only in contravention of the provisions of the Land Revenue Act and the Land Encroachment Act, but also in contravention of various judgments rendered by the Supreme Court and this Court. It is mentioned that when the petitioners submitted an application seeking permission to construct the theatres, the Hyderabad Urban Development Authority addressed a letter, dated 09-04-2002, stating that the land on which the construction is proposed, is within the FTL and that the said information has been furnished by the 3rd respondent herein. It is pleaded that the District Collector, rejected permission in view of the fact that the theatres are sought to be constructed within the FTL area, but the petitioners approached the Government, which inturn, passed orders without even taking into account, that fact. The 4th respondent stated that when the petitioners were proceeding with the construction in gross violation of the provisions of law, it made a representation to this Court and that the same was taken up as W.P. No. 15152 of 2006. It is mentioned that the Division Bench recorded a finding to the effect that the grant of permission to the petitioners was not legal, but the writ petition was dismissed by taking into account the fact that the construction was already come up. Various principles laid down by the supreme Court as regards pollution and encroachment of water bodies with reference to the relevant judgments, are mentioned. It ultimately, pleaded that the order passed by the 3rd respondent is legal and perfect and that it does not warrant any interference.
7. Sri. M.S. Prasad, learned Senior Counsel for the petitioners submits that the very invocation of the provisions of the Land Encroachment Act against the petitioners is untenable since the Theatres were constructed upon a patta land. Placing reliance upon the judgment of the Supreme Court in
8. On merits, the learned Senior Counsel submits that whether one goes by the purport of Section 2 of the Land Encroachment Act or Section 24 of the Land Revenue Act, the streams and tanks, situated in private lands, cannot be treated as public property and thereby a person, who is in possession thereof, cannot be treated as an encroacher. As regards the allegation about making of unauthorized construction, over and above the Cinema Theatres, he submits that the petitioners made an application for seeking regularization and the 3rd respondent cannot take that into account.
9. Learned Government Pleader for Revenue submits that not only the structures like public roads, lanes, bridges, but also the natural courses like dikes, rivers, streams, tanks, ponds, canals and lakes vest in the Government and thereby, they become the public property. He submits that even where the streams or tanks exist or streams and rivers flow upon a private land, the portion covered by it, become the public property. The only exception being where, specific orders are issued by the Government transferring the rights in respect of such formations, in favour of any private individual. In support of his contention, he has placed reliance upon the judgment of the Supreme Court in
10. Learned Government Pleader further submits that the Division Bench, which took up the PIL, has made a clear observation to the effect that the grant of permission in favour of the petitioners was contrary to law, but the writ petition was dismissed on the ground that the construction has already been completed. He submits that this Court has not taken away the right of the Government to initiate proceedings under the enactments, referred to above. He submits that the brazenness on the part of the petitioners is evident from the fact that having obtained a permission from the Government to construct Theatres, suppressing the relevant facts, they made unauthorized and illegal construction for commercial purpose over the cinema Theatres, without obtaining permission from any authority, and violating the interim order passed by this Court.
11. Sri. C. Narender, learned counsel for the 4th respondent submits that the petitioners flouted every relevant provision of law and construction was brought about, right in the full tank level of an irrigation source and totally covering the canal. He submits that at the earliest point of time, the Joint Collector, Ranga Reddy District rejected the permission on the ground that the proposed site is within the FTL and the canal would be covered, and still the petitioners managed to obtain the permission from the Government. He contends that the observations made by the Division Bench in W.P. No. 15152 of 2006 demonstrate that the construction is patently illegal. Learned counsel submits that though this Court declined to interfere with the permission, it has not interdicted the proceedings that can be initiated under the relevant enactments. He submits that by citing one order or the other, or even by threatening the officials, the petitioners not only made the construction of Theatres, but also brought about a huge commercial complex. It is stated that the application, filed for regularization, has been rejected by the Government and the entire structure deserves to be pull down.
12. The City of Hyderabad was endowed with the best of environment and ecological features. Right within the city there used to be lakes and tanks and the surrounding villages with their typical features, were also dotted with tanks of different sizes. This topography remained intact, till few decades ago. Factors such as the lopsided development, greed of certain individuals to enrich themselves at any cost, the indifference, collusion and corruption on the part of the officials endowed for the duties to protect the environment and the Government properties, have contributed to the complete change of the scenario. Since the tanks and water bodies vest in the Government, the land grabbers or encroachers did not face much resistance from the people and they were successful in making the concerned officials, to blink at the illegality. Added to that, wherever necessary they ensured that the revenue records are altered, or even made to disappear.
13. Miralam Tank, abutting the present Nehru Zoological Park, was the main source of drinking water and the quality of the water of that reservoir was one of the best, in the World. The reason was that its catchment area is full of deposits of laterite. It is said that whenever HEH Nizam had to travel outside Hyderabad, he used to take the water of Miralam Tank along with him. Today, its plight is miserable and what is stored in it is inferior to drainage water. In one of the writ petitions, an official filed an affidavit to the effect that by the year 1965, the water in the Miralam Tank became unfit, even for animal consumption.
14. The irrigation tanks are made disappear with a plan. First, the ayacut will be made to become fallow by neglecting maintenance of the Tank. Slowly, the ayacut is converted into non-agricultural purposes. Then come the land sharks, to swallow the area covered by the tank itself. This is not only typical of Hyderabad, but also has spread to other areas, may be in a Lesser degree. The High Court and the Supreme Court had to intervene to preserve tanks. Even the present sources of drinking water, the Osman Sagar and the Himayath Sagar, are existing on account of the specific orders passed by this Court. It is a different matter that the Government took every step to defeat the orders.
15. Miyapur, which is in the neighbourhood of Hyderabad has now become part of the City. The petitioners state that they purchased plot Nos. 1 to 6, carved out of Survey No. 71 of that village in the year 1983. It is not known as to whether the layout was approved by any competent authority or not. Be that as it may, the petitioners made an application in the year 2000 to the District Collector, Ranga Reddy District-the 2nd respondent under the A.P. Cinema (Regulation) Act, seeking permission to construct Cinema Halls on the land. The Joint Collector is the authority, conferred with the powers under the Act. As required to that enactment, he invited the remarks of various authorities such as Roads & Buildings, Home, Urban Development Authority, Fire Service, the then Municipality etc. The Urban Development Authority, inturn verified the matter from the Revenue Department. In his communication to the Urban Development Authority, the then Tahsildar, informed that the area on which the construction is proposed is part of FTL and a nala, i.e., stream passes through it. The Urban Development Authority addressed a letter to the Joint Collector stating that it cannot give No Objection Certificate, u/s 14 of the A.P. Urban Areas Development Act, 1975 since the proposed site is part of FTL of Patel Cheruvu Tank. The Joint Collector rejected the permission through order, dated 16-07-2007. It reads as under:
...
He (Vice-Chairman, HUDA) is informed that a major portion of area of Sy. No. 71 of Miyapur Village is falling into the Tank Bed of the full tank level area of Patel Cheruvu of Miyapur Village in which no development/building activity is permissible. Hence his request of grant of No Objection Certificate for construction of permanent cinema theatre in Sy. No. 71 of Miyapur Village is rejected.
16. However, the benevolent State Government, which has generosity to go to the rescue of persons, who fail to get any favour in the lower levels of administration, had issued G.O.Ms. No. 1251, dated 21-10-2002, directing the District Collector to grant permission to the petitioners. It is interesting to note that the then Principal Secretary, Home Department, took note of the fact that the permission was rejected on the objection raised by the Vice Chairman, Hyderabad Urban Development Authority, but has overcome the same with the following observation:
The Inspecting Officers of Commissioner of Serilingampally Municipality, Revenue Divisional Officer, Chevella Division etc., have not pointed out any thing about submergency of land in Patel Cheruvu except Vice Chairman, HUDA and they have recommended to grant N.O.C. to the applicants.
17. The Secretary appears to be a true believer of democracy and has gone by Rule of Majority.
18. The 4th respondent approached this Court through PIL, feeling aggrieved by the grant of permission to the petitioners. The same was taken up as W.P. No. 15152 of 2006. The petitioners herein, figured as respondents 10 and 11 in that writ petition. Though the Hyderabad Urban Development Authority was not a party to the writ petition, the views expressed by it were extracted in the judgment rendered by a Division Bench of this Court on 12-02-2007. After undertaking an extensive discussion with reference to the relevant material, their lordships observed:
We are thoroughly dissatisfied with the manner in which the Government has disposed of the case. When a serious objection was raised by a highly placed statutory body such as HUDA on the basis of the report of the Mandal Revenue Officer concerned, the least that was expected from the Government was to ascertain the fact whether any part of the land on which the theatres were proposed fell within FTL of Patel Cheruvu. It has allowed itself swayed away by the reports of the Commissioner of Serilingampally Municipality, the Revenue Divisional Officer, Chevella Division etc. It is significant to notice that the District Collector, Ranga Reddy in his affidavit stated in categorical terms that the then Revenue Divisional Officer, Chevella, who recommended for grant of No Objection Certificate has not considered whether the site on which the theatres were proposed fell within the FTL or not. The Commissioner of Serilingampally Municipality whose No Objection Certificate was also made a basis for the government to allow the appeal, in his counter-affidavit feigned ignorance about the objections raised by HUDA on the basis of the information furnished by Mandal Revenue Officer. Serilingampally.
19. The gist of the judgment of the Supreme Court in
Though we are thoroughly unhappy with the manner in which the Government ignored its responsibility in preventing the constructions which appeared to have been raised on a part of an important water body, we do not feel inclined to make a further probe into the matter for the following reasons.
....
It refused to interfere in the matter on the ground that the construction of the Theatres was already completed.
20. This Court has carefully gone through the entire judgment in W.P. No. 15152 of 2006 to find out whether their Lordships have, in any way, injuncted the authorities of the Revenue Department from taking any action in case, violation of any provision of law are noticed, lest it be pleaded that any adjudication has been undertaken in this writ petition contrary to what was ordained by the Division Bench. No such indication is discernable,
21. The proceedings initiated against the petitioners are those u/s 7 of the Land Encroachment Act read with Section 24 of the Revenue Act. To understand the matter properly, it becomes necessary to extract Section 24 of the Land Revenue Act and Section 2 of the Land Encroachment Act:
Section 24 of the Revenue Act:
24. All lands etc., are property of Government:-- All public roads, lanes, paths, bridges, ditches, dikes, rivers, streams, tanks, ponds, canals, lakes, and flowing water and all lands, wherever situated, together with all rights appertaining thereto are the property of the Government excepting:-
(a) those belonging to persons or class legally capable of holding property and to the extent so far as their such rights are established;
(b) those in respect of which any other order under any law may have been given.
It may be lawful for the Collector or other officer appointed by the Government for this purpose subject to rules sanctioned by the Government and contained in notification and the order of the Board of Revenue, to dispose of them in his discretion; but the right of way or other right legally vesting in any person or the public shall subsist.
Section 2 of the Land Encroachment Act:
2. Right of property in public roads, etc., water and lands:- (1) All public roads, streets, lanes and paths, the bridges, ditches dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nalas, lakes and tanks, and all canals and watercourses, and all standing and flowing water, and all lands, whenever situated, save in so far as the same are the property-
(a) of any zamindar, poligar, mittadar, jagirdars, shrotriemdar or any persons claiming through or holding under any of them, or
(b) of any, person paying shist, kattubadi, jodi, poruppu or quit-rent to any of th aforesaid persons, or
(c) of any person holding under ryotwari [........... ] tenure, of in any way subject to the payment of land revenue direct to Government, or
(d) of any other registered holder of land in proprietary right, or
(e) of any other person holding land under grant from the Government otherwise than by way of licence and as to lands, save also in so far as they are temple sites or owned as hose site or backyard,
are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force, subject always to all rights of way and other public rights and to the natural and easement rights of other land owners, and to all customary rights legally subsisting.
(2) All public roads and streets vested in any local authority shall, for the purposes of this Act, be deemed to be the property of Government.
Explanation:- In this section "high water mark" means the highest point reached by ordinary spring tides at any session of the year.
22. First about Section 24 of the Land Revenue Act. The Land Revenue Act has comprehensive enactment, which defines the nature of the lands, the right of the government, or private individuals vis-�-vis the land, and the manner in which the administration has to deal with the same. Section 24 is at threshold of the Chapter-IV of the Land Revenue Act, which deals with the land, and land revenue. It enunciates the general principle that the structures and bodies mentioned therein "wherever situated, are the property of the Government". Exceptions are carved out in Clauses (a) and (b). The remaining portion of the Section makes it clear that even where the Collector or other Officer dispose of them, in their discretion, the right of way or other right, in respect of them, shall remain in tact. In S.N. Ranade''s case (supra 2), it was held that even where the Government grants right over any land, owned by it, the grant does not cover the flowing water of the river. The tank bed, at its full tank level area, which is demarcated or the one covered by any public Nala, cannot at all be the subject matter of construction though the subterranean right right may vest owner or pattader. The expression "wherever situated, together with all rights pertaining thereto", employed of the Section 24 of the Land Revenue Act, assumes significance.
23. While Section 24 of the Land Revenue Act defines the right of the Government vis-�-vis the land or the geological features and structures thereon, Section 2 of the Land Encroachment Act virtually repeats the same with some difference as to its invocation, and in the context of taking steps for removal of encroachments. In this Section also all these streams, lakes etc, are mentioned and the expression "wherever situated" is employed. Assuming that the petitioners fit into Clause (d) in exceptions, even that would have the effect of vesting of the same in the Government.
24. Assuming that the right of ownership of the petitioners is intact, the last portion of the Section, viz., "subject always to all rights of way and other public rights and to the natural and easement rights of other land owners, and to all customary rights legally subsisting", disable them from making construction upon the Nala or any area within the FTL. In their explanation also the petitioners did not contradict the version of the 3rd respondent.
25. The petitioners devoted most of their explanation submitted to the show cause notice to deter or hoodwink the 3rd respondent with the interim or final orders passed by this Court. It is that attitude which encouraged them to proceed with the construction of huge complex of three or four floors over a structure meant for Cinema Theatres. It is too well known that a structure, which is meant for Cinema Theatres, cannot be utilized for another purpose and the legal regime that covers that structure is totally different. While for all other structures, the Municipality or Municipal Corporation happens to be the authority to accord permission; for Cinema Theatres it is the Collector that is conferred with the power.
26. In the PIL, that came to be instituted against the petitioners, almost mercy was pleaded stating that loans were borrowed for making the construction and demolition thereof, would result in huge loss to them. Obviously, impressed by that fact, this Court has shown indulgence. That, however, was treated as acknowledgment of brazenness and licence to commit illegalities of a higher order. Three or four floors were added without permission from anyone. It is brought to the notice of this Court that the application filed for regularization of the unauthorized structure under the Building Penalization Scheme, was rejected on 22-11-2008. However, petitioners are able to prevent the demolition thereof, by using their capacities or skills.
27. It is, no doubt, true that in Tummala Krishna Rao''s case (supra 1) the Supreme Court held that provisions of Land Encroachment Act cannot be invoked in case there are disputes as to title, or if the encroachment is spread over a long period. In the instant case, there is no dispute as to title. The right of the Government on the one hand, and the respondents on the other, over the Nala or on a land to the extent of FTL of an irrigation tank are spelt out by the provisions of the Land Revenue Act and Land Encroachment Act. Further, the steps were initiated soon after the violations or encroachment was noticed. The petitioners does not deserve any indulgence, particularly, in view of the fact that though the respective owners are said to be having land on the other portion, they have chosen the land within the FTL and the Nala, for construction of the Theatres. The Officer, who passed the impugned order, deserves to be complimented for the courage she has exhibited, overcoming threats and gestures of the petitioners. Ultimately, it is the officers with such commitment, who constitute ray of hope for the protection of public properties. Hence, the Writ Petition is dismissed. There shall be no order as to costs. The miscellaneous petition filed in this writ petition shall also stand disposed of. After the judgment is pronounced, learned Senior Counsel made submission to the effect that the petitioners be permitted to avail the remedy of appeal under the Land Encroachment Act. It is left open to the petitioners, to avail that remedy. If the appeal is presented within four (4) weeks from today, it shall be entertained without raising objection, as to delay in filing.
