Andhra HC (Pre-Telangana)
T. Leela Krishna & Another vs The Govt., Of A.P., Rep., By Its ... on 24 June, 2014
Author: Sanjay Kumar
Bench: Sanjay Kumar
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI JUSTICE SANJAY KUMAR
PUPLIC INTEREST LITIGATION No.331 of 2012
24-06-2014
T. Leela Krishna & another..Petitioners
The Govt., of A.P., rep., by its Principal Secretary, Panchayat Raj,
Hyderabad & others...Respondents
Counsel for Petitioners: Sri S. Malleswara Rao
Counsel for respondent Nos.1&2 : GP for Panchayat Raj
Counsel for respondent No.3 : Sri G. Elisha
Counsel for respondent No.4 : GP for Revenue
Counsel for respondent No.5 : GP for Home
Counsel for respondent No.6 : GP for Roads & Buildings
<GIST:
>HEAD NOTE:
? Cases referred
1.(2009) 5 SCC 373
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
PUBLIC INTEREST LITIGATION No.331 of 2012
AND
WRIT PETITION No. 11643 of 2007
This Court made the following:
COMMON ORDER:(Per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta) The aforesaid Public Interest Litigation (hereinafter referred to as PIL) and the Writ Petition (hereinafter WP), which was initially filed before the learned Single Judge by a group of individuals numbering 41, are filed with the following relief:
to issue Writ or Order or direction more particularly in the nature of writ of Mandamus declaring the inaction and silence of the respondents to the applications submitted on 08.03.2006 for regularization of their occupation in Government land in terms of G.O.Ms.No.1601, dated 29.08.2005 and G.O.Ms.No. 674, dated 08.06.2006, as illegal and arbitrary and violation of their fundamental rights under Article 21 of the Constitution of India Right to Shelter and Livelihood and consequently direct the respondents to regularize the occupation of the petitioners in Sy.No.38/1 and 38/2 situated at Kuchipudi Village, Movva Mandal, Krishna district in terms of G.O.Ms.No.1601, dated 29.08.2005 and G.O.Ms.No.674, dated 08.06.2006.
Thus, it is clear from the aforesaid prayer of the WP that a group of persons are occupying stretch of land without any lawful allotment having been done, and seeking regularization of such occupation. The PIL is filed on 24.09.2012 seeking a direction to the official respondent Nos.3 to 5 to restrain some of the petitioners in WP, who are the unofficial respondents in P.I.L, from raising permanent structures. Thus, it is clear that in P.I.L no prayer has been made for removal of the encroachers, who have come before us in their individual capacity.
As the matter stood like this, the Government has issued G.O.Ms.No.166, dated 16.02.2008 during the pendency of the WP. In view of subsequent development, the petitioners in WP relying on the above G.O.Ms.No.166, made an application for amendment of prayer of the writ petition and the same was allowed by this Court by deleting the words and silence from the original prayer and substituting the words representation submitted on 05.06.2008 and G.O.Ms.No.166, dated 16.02.2008 in place of application submitted on 08.03.2006 and G.O.Ms.No.1601, dated 29.08.2005 and G.O.Ms.No.674, dated 08.06.2006 respectively. Further amendment was allowed by this Court by deleting the words in terms of G.O.Ms.No.1601, dated 29.08.2005 and G.O.Ms.No.674, dated 08.06.2006 after the words Krishna District.
It appears from the records that immediately after P.I.L was filed the State Government had submitted a report to this Court, wherein it is mentioned that action has been taken by issuing notice for removal of the encroachers. It is appropriate to mention that the aforesaid report was not brought under challenge.
We feel that WP should be decided first before we go to P.I.L. In view of the amended prayer portion and the changed scenario, this Court has to examine whether the relief asked for by way of amendment should be granted. In other words, the Government can be asked taking note of G.O.Ms.No.166, dated 16.02.2008 to consider and decide the representation for regularization.
Learned counsel for the petitioners in WP contends that it is an admitted position that all the petitioners are landless persons and have occupied the land belonging to the Government and raised permanent constructions thereon. He submits that in view of the policy decision taken by the Government, the representation filed by his clients is entitled to be considered. He further submits that though in the records the land occupied by all the petitioners was classified as tank bed and part of the road, the officials of the Government by their act and conduct have converted the tank bed into the house hold land by allowing them to make constructions permanently without any objection. In some cases, such kind of occupation, described as tank bed, has been regularized. In alternative argument he asserts with the support of the judgment of the Honble Supreme Court in the case of Nature Lovers Movement vs. State of Kerala and others , that the Court will take human approach and see that landless people should get shelter. He relies on para 52 of the report in particular.
Learned counsel for the petitioners in P.I.L countering the submissions of the learned counsel for the petitioners in WP submits that admittedly the petitioners are occupying portion of the tank bed and portion of the road illegally and unauthorisedly and the Government has taken a decision to remove them.
In these circumstances, construction on the road, which is admitted to be made by the petitioners, should be dealt with in accordance with law. This Court has passed an interim order asking the Government to stay their hands in this regard. Therefore, the Government could not proceed with the matter. While considering the argument of the learned counsel for the petitioners in WP we find issue is whether the petitioners have any right legally or otherwise on strength of the aforesaid Government order mentioned in amended portion of the prayer so much so they should be allowed to make construction on the stretch of land occupied by them. Before the amendment of the writ petition, a counter affidavit was filed and in the counter affidavit the Government has taken a specific stand that the petitioners are occupying the tank bed and part of the road.
Learned counsel for the petitioners in WP says that the statement in the counter affidavit should be ignored, as it was filed when there was no amendment.
This argument cannot be accepted, as after amendment of prayer of original Writ Petition counter affidavit filed earlier does not lose its relevancy. The petitioners are to stand on their own prayer whether amended or unamended.
We have seen G.O.Ms.No.116, dated 16.02.2008 reliance on which is placed in the amended petition. It appears from the aforesaid Government order that a policy decision was taken for transfer of rights on certain occupations/encroachments of specified categories of unassigned Government lands situated in the State by way of structures or otherwise on payment basis and certain guidelines were framed.
Thus it is clear that the aforesaid decision for transfer of rights is not general in nature as specified therein. Clause (10) of the above Government order specifically provides general disqualification for transfer of rights. Sub- clauses
(a)(b) and (c) of Clause (10)(iii) are as follows:
10. GENERAL DIS-QUALIFICATIONS FOR TRANSFER OF RIGHTS:
(iii) No transfer of rights shall be effected in respect of the following cases:-
a) Sites affected under the alignment of Master Plan/Zonal Development Plan/ Road Development Plan.
b) . c) Constructions made on alignment of Nalas, Sikhams, Water bodies,
Graveyards, Foreshore or FTL areas of drinking water tanks and treatment areas.
The aforesaid policy decision in no uncertain terms provides that transfer cannot be made in respect of the aforesaid cases. Here, the petitioners in WP admit they are occupying the tank bed in other words water bodies and part of the road. However, it is contended by the learned lawyer for WP that actually the tank bed is no longer a tank bed and it is a plain land which comes within the purview of the aforesaid Government order.
Learned counsel wants us to hold that it is change of nature and character of the land in question pointing out a portion of the report, submitted before this Court in PIL. We are unable to accept the contention that we shall give a declaration that tank bed or for that matter a part of the road is deemed to have been converted into other classification of the same land. We hold that so long as the records remain and the same is not corrected by the appropriate authority, we cannot reclassify by ourselves because good deal of exercise is to be made by the authority concerned under the law. Report is to be read as a whole not a portion to be read in isolation of other portion. As on today, we hold that the petitioners in WP have no subsisting right on the strength of the above G.O.Ms.No.166 dated 16.02.2008 as they do not satisfy the conditions therein. We have given our consideration to the extent possible to the judgment of the Honble Supreme Court. We are of the view that the above judgment rendered not intending to give declaration of law under Article 141 and it was an equitable relief granted by the Honble Supreme Court as mentioned in paragraph 52, which is reproduced hereunder:
52. In the result, the appeal is disposed of in the following terms:
(1) The policy decision taken by the Government of Kerala to assign 28,588.159 ha of forest land to unauthorized occupants/encroachers after seeking approval from the Central Government does not suffer from any legal infirmity and the High Court rightly declined to interfere with the said decision.
(2) After the enforcement of the 1980 Act, neither the State Government nor any other authority can make an order or issue direction for dereservation of reserved forest or any portion thereof or permit use of any forest land on any portion thereof for any non-forest purpose or assign any forest land or any portion thereof by way of lease or otherwise to any private person or to any authority, corporation, agency or organization not owned, managed or controlled by the Government except after obtaining prior approval of the Central Government.
(3) Conclusion D recorded by the High Court in para 103 of the impugned judgment is legally unsustainable and is set aside.
(4) As and when the State Government decides to assign 10,000 ha of forest land to unauthorized occupants/encroachers, it shall do so only after obtaining prior approval of the Central Government and the latter shall take appropriate decision keeping in view the object of the 1980 Act and the guidelines framed for regularization of encroachments on forest land.
It is thus clear from above the Government takes policy decision to assign the forest land with approval of the Central Government after framing guidelines for regularization of encroachments. In this case, as on today, we do not find any policy decision having been taken to regularize the petitioners occupation. On the contrary, decision has been taken as it is reflected from the records to remove them. Under these circumstances, we are unable to grant any relief to the petitioners in the WP as claimed. At the same time, we cannot give any mandate for their removal from physical possession. It is for the Government to do so as it thinks fit. However, taking note of the prayer of the P.I.L we hold that occupation of the land by the petitioners in WP is not lawful as of today and therefore no construction should be allowed to be raised. As such the petitioners in WP are directed not to make any permanent construction on the lands occupied by them.
On the above terms, both the matters are disposed of. Miscellaneous petitions, if any, pending in these writ petitions shall stand dismissed. No order as to costs.
___________________ K.J. SENGUPTA, CJ ___________________ SANJAY KUMAR, J Date: 24.06.2014