Andhra HC (Pre-Telangana)
T.V. Acharyulu And Ors. vs Government Of Andhra Pradesh And Ors. on 10 November, 2003
Equivalent citations: 2004(2)ALD128, 2004(4)ALT481
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. The petitioners in all these writ petitions claim ownership and right in respect of various extents of lands in survey numbers situated in Nacharam and Uppal Revenue Villages. Hence they are disposed of through a common judgment.
2. The respondents have undertaken demarcation of the Full Tank Level (for short 'the FTL') of a tank known as Pedda Cueruvu. The petitioners contend that in the course of fixation and demarcation of the FTL, the respondents are including the lands of the petitioners, and thereby rendering their lands either inaccessible or incapable of being put to any use. They seek appropriate directions in this regard.
3. The petitioners contend that the lands held by them were patta lands of their predecessors in title and they were never treated as part of tank bed or shikam. They contend that once their predecessors in title held private pattas for such lands and that such rights were recognised in the various revenue records, it is not open for the respondents to deprive them of their lands, except by initiation of proceedings under the Land Acquisition Act. They also dispute the correctness of the boundaries drawn by the respondents in the matter of fixing the FTL.
4. In the counter-affidavits filed on behalf of the respondents, it is stated that Pedda Cheruvu is an irrigation tank, which was established long ago. According to them, the records relating to the tank maintained by the Irrigation Department, disclose that at its full capacity, the tank is spread over Ac. 146.20 guntas (6.3828 million sq.feet). It is stated that in the recent past, most of the ayacut area has been converted into residential use and the water spread area of the tank was also being encroached. It is also contended that the tank was subjected to acute pollution with the discharge of industrial effluents and domestic drain waters from the neighbouring colonies. They plead that in the light of the observations made by the Hon'ble Supreme Court in the recent past as to the need to preserve and maintain water bodies, particularly, those surrounded by the residential areas, steps were taken to restore the tanks and other water bodies in and around the Hyderabad City.
5. It is the case of the respondents that the lands within the FTL are not permitted to be used, in the manner detrimental to the safety and existence of the tanks, under the provisions of the A.P. (Telangana Area) Irrigation Act, 1357 Fasli. They contend that grant of pattas for the land in the water spread area is prohibited and pattas, if any, granted are only for limited use, such as grazing of cattle.
6. HMT Nagar Welfare Association, got itself impleaded in all these writ petitions. They support the steps taken by the respondents.
7. Learned Counsel for the petitioners Sri V. Venkataramana, Sri B.V. Bakshi and Sri P. Pratap Reddy, submit that the petitioners have purchased the lands after verifying the title of their transferors as well as the entries in the revenue records. They submit that at no point of time the respondents have taken any objection either for the purchases or subsequent development of the land. By referring to the entries in the revenue records as well as the maps relating to the respective villages, they dispute the correctness of the extent of water spread area of the tank, thereby the FLT limits. It is also contended that restrictions imposed under the Act would apply if only the tank was used as a reservoir under a canal or channel, and the Pedda Cheruvu not being one such, the question of applying the restrictions does not arise.
8. Learned Advocate General, appearing on , behalf of the respondents, submits that the water spread area of the tank is Ac. 146-20 guntas and on account of various factors, encroachments were made into it. He contends that the tank, which was expected to be a reservior, beneficial for the surrounding areas from the point of view of enhancing the ground water level and presenting a good environment, was not only robbed of its characteristics, but was reduced to a source of actue pollution in the area. He submits that the respondents have taken steps to identify the full water spread area of the tank, to construct a bund enclosing the same to prevent flow of effluents into it and to take measures to purify water in it. He emphases that it is not at all permissible for undertaking even agriculture activities, not to speak of construction activity, in the water spread area of a tank. Referring to various judgments rendered by the Supreme Court and this Court, which stressed the importance of preservation and maintenance of tanks and water bodies, the learned Advocate General submits that no exception can be taken to the present steps. He further contends that if the petitioners are of the view that the demarcation of the FTL is improper for any reason, the only course open to them is to file suits as provided for under the A.P. Survey and Boundaries Act.
9. Sri K. Sarvabhooma Rao, learned Counsel for the impleaded respondent, adopts the arguments of the learned Advocate General.
10. From the pleadings of the parties, it is evident that the respondents have taken steps to fix the limits of the FTL of the Pedda Cheruvu. This tank used to be a source of irrigation for vast extent of ayacut, With the diminution of the ayacut area, obviously on account of spread of residential localities in it, the tank has become almost defunct from the point of view of irrigation. As was the fate of many tanks in and around the twin cities, the maintenance of this tank also was neglected. Apart from not being a reservoir of fresh water, it became a soak-pit for the surrounding residential localities and industrial estates. Attempts were also made to convert part of the tank body into residential colony.
11. The landholders and intending purchasers alone were not to be blamed for this activity. The Government has also played an important role in this regard. On the directions issued by the then Revenue Minister, the Collector addressed letter dated 26-12-1994, directing restriction of the FTL from Ac. 147-00 to Ac.68-00. This trend went on in respect of one tank or the other till the Supreme Court and this Court came heavily, deploring the indifference exhibited by the Government in maintenance of such tanks.
12. It was not as if there was no statutory regime for maintenance of tanks. Even under the Erstwhile Nizams Rule, there used to be a perfect legal regime to maintain the tanks, viz., comprehensive legislations and a machinery to implement it. Almost on the same lines, the A.P. (Telangana Area) Irrigation Act, 1357 Fasli (hereinafter referred to as 'the Act') came to be enacted. Irrigation works are defined under Section 3(a) to include all categories of reservoirs, tanks, canals, rivers, streams, lakes, etc. Construction and maintenance of the irrigation works was treated as the obligation and duty of the State. Part VII of the Act provides for various measures to safeguard the irrigation works. Section 48 prohibited various kinds of activities within the boundaries of tanks and canals. They include :
"(a) removal of any material relating to the irrigation work;
(b) cultivation of any kind;
(c) sowing or planting of trees;
(d) tapping of Abkari trees situated on the land acquired;
(e) establishment of any new place of worship;
(f) grazing or tethering of any animal;
(g) vehicular traffic on bounds or inspection pathways;
(h) passage of animals on bunds or inspection pathways;
(i) corruption of or fouling the water;
(j) removal or cutting of or damaging trees in any way; other prescribed matters."
When such is the zeal with which the tanks were required to be protected, hardly there exists any justification for the State being indifferent in permitting the tanks to be reduced to the present condition. It is rather sad that it needed admonition by the Courts and financial aid by small countries like Netherlands, to make attempts to restore the tanks to their original conditions.
13. In Hinchlal Tiwari v. Kamala Devi, , the Supreme Court emphasised the need to preserve the tanks. It held as under:
"It is important to note that material resources of the community like forests, tanks, ponds, hillock, mountain, etc., are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enable people to enjoy a quality life which is essence of the guaranteed right under Article 21 of the Constitution."
14. In Forum for a Better Hyderabad v. Government of A.P., 2001 (4) ALD 776 = ILR (2001) 2 A.P. 162 (DB), the various aspects of the obligation of the State to provide better environment and safeguard natural resources, as enshrined under Articles 48A and 51A of the Constitution of India, were emphasised.
15. Similarly, in T. Ramakrishna Rao v. The Chairman, HUDA, (DB), the State authorities were exhorted to take such steps as are needed to protect the purity and size of the tanks, particularly, those in and around the city.
16. In the recent past, through a series of judgments, the Supreme Court directed the various agencies to take remedial steps even at the cost of causing inconvenience to a limited number of individuals and expenditure to the State Exchequer, to provide better environment and to prevent pollution of natural resources and water bodies.
17. It is on account of the monitoring of the matter by the Courts from time to time; a sort of awakening in the public as well as the Government has emerged, to protect the environment from indiscriminate onslaught. In that view of the matter, no exception can be taken to any efforts made or steps taken by the respondents to restore the tank to its original shape.
18. So far as the rights of the petitioners are concerned, two issues emerge. The 1st one is as to whether the lands of the petitioners are in fact within the FTL of the tank. This, in turn, would depend on the accuracy of the demarcation of the FTL by the concerned authorities. The 2nd aspect is as to whether the petitioners would be entitled to any compensation, in the event of their lands falling within the FTL. The answer to this would depend on the nature of the ownership held by the petitioners or their predecessors in title vis-a-vis the lands.
19. The respondents claim that at the FTL, the water spread area of the tank is Ac.147-00. Reliance is placed on certain records and maps prepared in this regard. Some confusion did exist in this regard, on account of the fact that initially one map was prepared by the revenue authorities and thereafter a second map was prepared stating that it represents the correct state of affairs. It is rather difficult for this Court to pronounce upon the accuracy or otherwise of these exercises. Any finding on this issue is to be based on an examination of the original records relating to the tank, the location of the lands of the petitioners and the limits that are now fixed by the revenue authorities. On the directions issued by this Court, the respondents have made available copies of the maps and sketches drawn by them, fixing the FTL limits. If the petitioners feel aggrieved by such demarcation, they have to avail the remedy of filing of suits as provided for, under the A.P.Survey and Boundaries Act It is in such suits that the evidence needs to be adduced by the respective parties, basing on which the Courts can record findings.
20. Coming to the 2nd issue, two contingencies have to be taken into account. If, on acceptance of the accuracy of the maps and sketches drawn by the revenue authorities fixing the FTLs, or on adjudication by the Civil Court, it emerges that the lands of the petitioners or any of them, wholly or in part, are outside the FTL, nothing needs to be decided further. On the other hand, if it emerges that such lands, wholly or in part, are within the FTL, the nature of their rights and their entitlement to receive the compensation, would depend on certain important factors, such as, the nature of patta that was granted to the predecessors in title and the conditions, if any, imposed therein. In case it emerges that the predecessors in title of the petitioners held absolute title with full rights to enjoy the lands as they wish without any restrictions imposed under the Act, the respondents have to choose either to acquire such lands by paying compensation or to segregate them from the FTL. This complex exercise needs to be undertaken by the competent agency.
21. Under these circumstances, the writ petitions are disposed of with the following directions:
(a) It shall be open to such petitioners, who dispute the correctness of the demarcation of the FTL of the Pedda Cheruvu, Uppal, to file suits as provided for under the A.P.Survey and Boundaries Act. Since the maps and sketches are furnished recently on the directions issued by this Court, limitation for filing the suits shall start running from the date of this judgment;
(b) If it emerges in the suits so filed that the lands of the petitioners, wholly or in part, are outside the FTL now fixed by the respondents, the respondents shall have to undertake necessary correction in this regard. If, however, they intend to maintain the same FTL by including such lands, they shall be under obligation to pay the compensation for such affected area of the land;
(c) If it emerges that the lands of the petitioners or any part of them are within the FTL, the nature of rights to be enjoyed by them would depend on the nature of pattas held by their predecessors in title. For this purpose, it shall be open to such of the petitioners as are affected, to approach the District Collector, Ranga Reddy District, with an application. Such adjudication shall be undertaken by examining the entire basic records in respect of such lands and not otherwise. The District Collector shall also take into account the provisions of the A.P. (Telangana Area) Irrigation Act and the conditions, if any, subject to which the pattas are granted; and
(d) Pending such exercises, it shall be open to the respondents to take steps to restore the tank. They shall, however, desist from changing the nature of the lands claimed by the petitioners.
There shall be no order as to costs.