Aila Pawan Kumar, vs State Of Telangana, on 18 September, 2024

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Telangana High Court

Aila Pawan Kumar, vs State Of Telangana, on 18 September, 2024

Bench: K. Lakshman

              HON'BLE SRI JUSTICE K. LAKSHMAN

          WRIT PETITION Nos.24282 AND 24338 OF 2024
COMMON ORDER:

Heard Mr. P.S. Rajasekhar, learned counsel for the petitioner in W.P. No.24282 of 2024, Mr. V. Murali Manohar, learned counsel for the petitioner in W.P. No.24338 of 2024 and Mr. S. Rahul Reddy, learned Special Government Pleader appearing on behalf of the respondents in both the writ petitions.

2. In both the writ petitions, challenge is to the notices issued by the Tahsildar, Medipally Mandal, Medchal - Malkajgiri District, under Section - 23 of the A.P. Water, Land and Trees Act, 2002 (for short 'WALT Act') and Andhra Pradesh (Telangana Area) Irrigation Act, 1357 Fasli (for short 'Irrigation Act').

3. Lis involved in both the writ petitions is one and the same, therefore, both the writ petitions were heard together and are being disposed of by way of this common order. However, since the petitioner and array of respondents in both the writ petitions are different.

Therefore, for the sake of convenience, the parties are hereinafter referred to as they are arrayed in W.P. No.24282 of 2024.

KL,J W.P. Nos.24282 & 24338 of 2024

4. Vide the aforesaid notices, both dated 28.08.2024, the Tahsildar, Medipally Mandal, respondent No.3 in W.P. No.24282 of 2024, directed the petitioners to remove the structures mentioned in the tabular form of the said notices in Pedda Cheruvu situated at Peerzadiguda Village within seven (07) days from the date of receipt of the notices, failing which necessary action will be initiated under Section

- 25 of the Irrigation Act and Section - 23 of the WALT Act.

5. Both, Mr. P.S. Rajasekhar and Mr. V. Murali Manohar, learned counsel for the respective petitioners, would contend as follows:

i) The Tahsildar, Medipally Mandal, has no jurisdiction or authority to issue the impugned notices;

ii) The Irrigation Act is not applicable;

iii) The Tahsildar is not a designated Officer;

iv) Though it is mentioned as notices, they are final orders;

v) The petitioners were not put on notice and opportunity was not afforded to them while issuing the said notices;

vi) Vide the aforesaid notices, the Tahsildar directed both the petitioners to remove the structures;

vii) The details of alleged encroachment are not mentioned; 3

KL,J W.P. Nos.24282 & 24338 of 2024

viii) Both the notices are in violation of the principles of natural justice and also the procedure laid down under the aforesaid Acts;

ix) Reliance was placed on the provisions of the WALT Act and also the Irrigation Act; and

x) Reliance was also placed on the decision in Government of Andhra Pradesh v. Thummala Krishna Rao 1 and Government of Andhra Pradesh v.Malik Sultana 2.

6. Whereas, Mr. S. Rahul Reddy, learned Special Government Pleader, would submit as follows:

i) The impugned notices are Ministerial Notices;

ii) The Tahsildar has jurisdiction to issue the notices;

iii) The petitioners can as well submit explanations to the said notices;

iv) Non-quoting and misquoting of any provision of law will not vitiate the proceedings and notices cannot be declared as illegal;

1

. (1982) 2 SCC 134 2 . 2013 (2) ALD 177 4 KL,J W.P. Nos.24282 & 24338 of 2024

v) Placed reliance on the provisions of the WALT Act, Irrigation Act, G.O.Ms.No.47, Panchayat Raj & Rural Development (RD.IV) Department, dated 03.03.2003.

With the aforesaid submissions, he sought to dismiss both the writ petitions.

7. Perusal of record would reveal that both the notices were issued by the Tahsildar, Medipally Mandal under Section - 23 of the WALT Act and the Irrigation Act. In the light of the same and rival submissions, it is relevant to note that the Scheme of the WALT Act.

Section - 23 of the WALT Act is relevant and the same is extracted hereunder:

"23. (1) The authority may notify water bodies like lakes, village ponds and minor irrigation tanks along with nalas (water course or drainage course) as heritage bodies and conservation areas to prevent conversion of their intended use and the authority shall take all measures to permanently demarcate the boundaries through the department of the Government or the organization concerned as per the memoirs of lakes / tanks / ponds / nalas (water course or drainage course) and shall take measures to evict and prevent encroachment. For this purpose, the Authority may give directions to the concerned department, agency, statutory body or official and 5 KL,J W.P. Nos.24282 & 24338 of 2024 upon such direction, the concerned department, agency, statutory body or official shall comply with such directions. The authority may also issue guidelines in this regard and the guidelines shall be complied with by all the concerned.

(2) The designated officer shall have the power to prevent and remove encroachments into the demarcated area of the water body.

(3) No undesirable wastes including liquid wastes shall be allowed to be dumped in the water bodies by any person or organisation.

(4) The Authority shall in consultation with technical experts decide the permissible levels of pollutants which can be allowed into the water bodies. (5) The designated officer shall have the authority to take required steps to prevent and control polluted water entering the water bodies."

8. Section - 2 (2) of the WALT Act defines 'Designated Officer', and it means an Officer or any person so designated by the Authority to perform the functions, under the Act. Section - 2 (10) defines the word 'Prescribed' which means prescribed by Rules made under the WALT Act.

i) Section - 3 deals of the WALT Act with constitution of Water, Land and Trees Authority. It is also relevant to refer and extracted the same:

KL,J W.P. Nos.24282 & 24338 of 2024 "3. (1) As soon as may be after this Act is brought into force the Government shall, by notification with effect from such date as may be specified therein constitute an authority called the Telangana State Water, Land and Trees Authority.

(2) The Authority shall consist of,-

a) Minister, Panchayat Raj, Rural Development and Rural Water Supply or any other Minister, nominated by the Chief Minister.

b) Three Members of the State Legislative Assembly, nominated by the Government out of which one shall be from the main opposition political party.

c) Chief Secretary to the Government.

d) Secretary to the Government in charge of Agriculture

e) Secretary to the Government in charge of Irrigation and Command Area Development.

f) Secretary to the Government in charge of Municipal Administration.

g) Secretary to the Government in charge of Rural Water Supply.

h) Secretary to the Government in charge of Panchayat Raj.

i) Secretary to the Government in charge of Environment, Forests, Science and Technology Department.

KL,J W.P. Nos.24282 & 24338 of 2024

j) Vice Chancellor, Professor Jayashankar Telangana State Agricultural University

k) Three Professors of whom one each from the faculties of Life Sciences, Earth Sciences and Engineering and Technology from the Universities in the State nominated by the Government for a two year term by rotation.

l) Three experts in the field of water and soil conservation and economics nominated by the Government.

m) Such other non-official persons not exceeding five in number who, in the opinion of the Government are interested in the conservation of natural resources of whom one each shall be from the Scheduled Tribes, Scheduled Castes and Woman respectively.

n) Secretary to the Government in charge of Rural Development.

(3) The term of office of the nominated members except those nominated under clause (k) of sub- section (2) shall be such as may be prescribed.

(4) The members shall be entitled to such allowances as may be prescribed for attending the meetings of the authority or performing duties entrusted by the authority.

(5) The Government, may in consultation with the State Authority, constitute by notification, authorities at District, Division and Mandal levels with such 8 KL,J W.P. Nos.24282 & 24338 of 2024 composition and to perform such functions in such manner as may be prescribed.

(6) The Authority constituted under sub-section (1) shall be a body corporate having perpetual succession and a common seal, with power to contract, acquire, hold and dispose of property, both movable and immovable and to do all things necessary for the purposes of this Act and may sue and be sued by the said name."

ii) Section - 3 (6) of the WALT Act says that the Authority constituted under sub-section (1) shall be a body corporate having perpetual succession and a common seal, with power to contract, acquire, hold and dispose of property, both movable and immovable and to do all things necessary for the purposes of this Act and may sue and be sued by the said name.

iii) Section - 5 (1) of the WALT Act says that the authority may designate such persons as designated officers for the purposes of this Act in such manner and for such areas as may be prescribed. Section - 5 (2) says that the authority may, from time to time, appoint such other officers and servants subordinate to the designated officer, as may be required by way of deputation from Government departments, or from Universities or on contract basis. Section - 5 (3) says that the authority 9 KL,J W.P. Nos.24282 & 24338 of 2024 may also appoint such other officers to assist the State Authority in such manner and for such purposes as may be prescribed.

iv) Section - 7 of the WALT Act says that the Authority may delegate any of their powers to the District level, Division level and Mandal level authorities or any Department or Officer of the Government or Local Bodies for the purpose of carrying out the provisions of the WALT Act.

v) Section - 25 of the WALT Act says that the Authority shall have power to designate an officer to be in-charge of the water bodies in the State, Municipal Corporations, Municipalities, Urban Areas or Gram Panchayats to ensure proper protection and conservation of the water bodies.

vi) Section - 33 of the WALT Act deals with 'appeals'.

9. Rule - 3 of the Telangana Water, Land and Trees Rules, 2004 (for short 'Rules, 2004') deals with 'appointment of Administrator and the staff in State, District and Mandal Authorities', and as per sub-rule (3) of Rule - 3 of the Rules, 2004, the Authority under the provisions of Section - 5 of the WALT Act may designate the officers from the departments, such as Ground Water, Rural Development, Irrigation;

Municipal Administration and Urban Development, Pancchayat Raj, 10 KL,J W.P. Nos.24282 & 24338 of 2024 Forest or any other department or agency as deemed necessary to work as Designated or Technical Officers for the purpose of the Act by a separate order. Rule - 3 (6) of the Rules, 2004 says that the power of designating the officers at District and Mandal level may be delegated by the State Authority.

10. Learned Counsel appearing on behalf of both the petitioners, Mr. P.S. Rajasekhar and Mr. V. Murali Manohan, respectively, referring to Section - 1 of the Irrigation Act, would contend that the Tahsildar, Medipally Mandal has no jurisdiction to issue notices under the Irrigation Act. In the light of the same, Section - 1 (2) of the Irrigation Act is relevant and the same is extracted as under:

"1 (2) This Act shall apply to all new irrigation works, their ayacuts and to all other irrigation works of ayacuts of two thousand acres or more and their ayacuts:

Provided that notwithstanding the provisions contained in this Act, the Government may, by notification exclude any local area or irrigation work or class of irrigation works from the operation of the whole or any of the provisions of this Act, from the date as may be specified by the notification in the Official Gazette."

KL,J W.P. Nos.24282 & 24338 of 2024

11. Referring to proviso to sub-section (2) of Section (1) of the Irrigation Act, Mr. S. Rahul Reddy, learned Special Government Pleader, would contend that the Government has issued Notification. He has not filed copy of the same.

12. Section - 3 of the Irrigation Act is also relevant and the same is extracted hereunder:

"3. Definitions:- In this Act, unless there is anything repugnant in the subject or context,-

(a) "irrigation work" includes,-

(i) all kuntas, reservoirs, tanks, anicuts, canals, their distributaries, channels and sluices constructed, maintained or controlled wholly or partly by or with the consent of the Government for the supply, conveyance or storage of water;

(ii) all construction works, embankments, structures, supply and escape channels, connected with the aforesaid water reservoirs, tanks, anicuts, canals, and their distributaries, pipes and sluices and all roads constructed for the purpose of facilitating the construction or maintenance of the said water reservoirs, tanks, anicuts, canals, distributaries, and their channels, pipes and sluices;

(iii) all drainage works and flood embankments;

KL,J W.P. Nos.24282 & 24338 of 2024

(iv) any part of a river, stream, lake, natural water reservoir or drainage channel, to which the Government may apply the provisions of section 6 or the water of which has been used before the commencement of this Act for the purposes of any existing irrigation work;

(v) all lands appropriated by the Government for the purposes of water reservoirs, tanks, anicuts, canals and their distributaries, pipes and sluices and all buildings, machinary, fences, gates and other errections on such lands;

(vi) all pumping sets which are owned or constructed or maintained or controlled wholly or partly by the Government and not handed over to rany person.

(b) "new irrigation work" means an irrigation work as defined in clause (a) and constructed or completed by the Government after 1st Azur 1314 F. and includes extensions to irrigation works made after that date;

(c) "water course" means any field channel or pipe not having capacity in excess of 3 cft. per second which is supplied with water from an irrigation work, but which is not maintained at the cost of the Government, and includes all subsidary works belonging to such field channels but does not include the sluice or outlet through which water is supplied to such channel or pipe;

(d) "drainage work" includes:-

KL,J W.P. Nos.24282 & 24338 of 2024

(i) natural or artificial channels for the discharge of waste or surplus water, and all works connected with or auxiliary to such channels;

(ii) escape channels of an irrigation work, dams, weirs, embankments, sluices and groins;

(iii) and work constructed or improved by the Government for the purpose of reclamation by means of improvement of the surrounding drainage; and

(iv) all works for the protection of lands from inundations or erosion, constructed or maintained by the Government either wholly or in part;

(e) xxxxx;

(f) xxxxx;

(g) xxxxx;

(h) xxxxx;

(i) xxxxx;

(j) "Collector" means an officer appointed or deputed by the Government or any other person empowered by the Government to exercise all or any of the powers of a Collector under this Act;

(k) "Irrigation officer" means an officer of the Public Works Department or Revenue Department appointed or deputed by the Government to perform such of the functions of the Irrigation officer as may be prescribed under this Act;

(l) "prescribed" means prescribed by rules made under this Act."

KL,J W.P. Nos.24282 & 24338 of 2024

13. Paragraph Nos.1 to 4 of G.O.Ms.No.47, Panchayat Raj & Rural Development (RD.IV) Department, dated 03.03.2003, are relevant and the same are extracted as under:

"ORDER:

In the pursuance of the decision taken by the A.P. State Water, Land and Trees Authority in the meeting held on 5.9.2002, the Administrator & Commissioner, Rural Development, A.P. State Water, Land and Trees Act has requested the Government to designate the concerned Departments as implementing agencies under Section - 5 of A.P. Water, Land and Trees Act to implement the Act immediately for getting the desired impact in the field.

2. The Government hereby designate the following departments as implementing agencies for the purpose of implementation of various provisions of the Act as mentioned herein.

i) Ground Water Department for registration of machine by all rig owners sand mining and classification of Ground Water basin.

ii) Municipal Administration and Urban Development for construction of rain water harvesting structure, tree planting, permission for construction of new buildings subject to planting of prescribed number of trees.

KL,J W.P. Nos.24282 & 24338 of 2024

iii) Pollution Control Board for prohibition of water contamination including prohibition of direct disposal of waste water into the water bodies, regulation of ceiling on water use by any industry or commercial unit.

iv) Mines and Geology Department and Panchayat Raj Dept. in consultation with ground water department, Revenue Dept. for monitoring of sand mining for water bodies.

v) Forest Department for granting permission of tree felling.

3. Government also hereby declare the officers from the above Departments at various level i.e. State, District and Mandal as designated officers for the purpose of implementation of the Act including detection of offences regarding violation of the Act and its compounding fee. Ground Water Department, Forest Department, Pollution Control Board, Rural Development Department, Municipal Administration Department, Mines and Geology Department, Panchayat Raj (Engineering) Dept., Agriculture Department and A.P. Transco. The concerned department will nominate their representative to be nominated as designated officers at State level, district level and mandal level. Designated officers at the State level, District level and Mandal level will report to the Administrator, Andhra Pradesh Water Land and Trees Authority, Member Secretary District Level Committee and Chairman Mandal Level 16 KL,J W.P. Nos.24282 & 24338 of 2024 Committee respectively regarding the implementation of this Act.

4. Government also hereby declare village Secretaries/ Municipal Commissioners as the designated office's for the purpose of registration of wells/water bodies in villages/municipalities respectively and Mandal Revenue Officer/Municipal Commissioner as Designated Officer for issuing permission for digging new wells. Electricity service connection number should invariably be recorded while registering the wells. The records for registration of wells, permission of new wells etc., will be maintained in MRO's office/Municipal Commissioner Office. The request for permission of digging new wells should invariably be accompanied with a technical certificate from Geophysicist/Geologist duly registered with the Ground Water Department.

5. xxxxx

6. xxxxx

7. xxxxx

8. xxxxx"

14. Therefore, as per the said G.O., the concerned Department has power to nominate their representatives to be nominated as Designated Officers at State Level, District Level and Mandal Level. The said Designated Officers will report to the Administrator, Telangana Water Land and Trees Authority, Member Secretary, District Level Committee 17 KL,J W.P. Nos.24282 & 24338 of 2024 and Chairman Mandal Level Committee respectively regarding the implementation of the WALT Act.

15. It is also trite to note that procedure is prescribed for registration of wells, drilling rigs, closure of wells, permission to dig wells etc. In all the provisions, it is mentioned as 'Authority'. The Tahsildars are exercising the said power at Mandal level. This Court in several matters either upheld the action of Tahsildars or set aside their action on the ground that they have not followed the procedure laid down under law. This Court did not hold that the Tahsildar has no power to exercise the said powers.

16. It is also apt to note that Rule - 10 of the Rules, 2004 deals with 'Mandal Authority', and it says that the Government may by notification constitute the Mandal Authority and Mandal Revenue Officer/Tahsildar of the concerned Mandal as the Ex-Officio Chairman. There is power to delegate under Section - 7 of the WALT Act. Vide G.O.Ms.No.47, Panchayat Raj & Rural Development (RD-IV) Department, dated 03.03.2003, the Government declared the Officers from the Departments at various level i.e., State, District and Mandal as 'Designated Officers' for the purpose of implementation of the WALT Act including detection of offences regarding violation of the WALT 18 KL,J W.P. Nos.24282 & 24338 of 2024 Act and its compounding fee. The concerned department will nominate their representative to be nominated as Designated Officers at State Level, District Level and Mandal Level. The Government further declared that Village Secretaries/Municipal Commissioners as the designated officers for the purpose of registration of wells/Municipal Commissioner as designated officer for the purpose of registration of wells/water bodies in villages/municipalities respectively and Mandal Revenue Officer/Municipal Commissioner as designated officer for issuing permission for digging new wells. The records for registration of wells, permission of new wells etc., will be maintained in MRO's office/Municipal Commissioner Office.

17. Thus, the Legislature has enacted a comprehensive law called the Telangana WALT Act to promote water conservation and tree cover and to regulate exploitation and use of ground and surface water for protection and conservation of water sources, land and environment and matters connected therewith. The WALT Act was in force in combined State as on 02.06.2014 and the same has been adapted by the State of Telangana vide the Notification issued in G.O.Ms.No.18, Panchayat Raj & Rural Development (RD.II) Department, dated 19 KL,J W.P. Nos.24282 & 24338 of 2024 31.01.2015. Section - 45 of the WALT Act enables the Government to make rules. In exercise of the said power, Rules, 2002 have been made.

18. In Ellaturu Siddaiah v. Revenue Divisional Officer3, the High Court of Andhra Pradesh at Hyderabad, had an occasion to deal with the power of the Mandal Revenue Officer in seizing bore-well in terms of Rule - 12 of the said Rules and held that Mandal Revenue Officer is the competent authority in terms of Rule - 12 of the Rules. In the light of the same, the petitioners cannot contend that the Tahsildar, Medipally Mandal has no jurisdiction to issue notices.

19. As rightly contended by Mr. S. Rahul Reddy, learned Special Government Pleader, it is ministerial act. As discussed above, there are several factual aspects which the Tahsildar has to consider. Therefore, this Court is of the considered view that the Tahsildar, Medipally Mandal has jurisdiction to issue the said notices.

20. However, as discussed above, the impugned notices were issued under the WALT Act and the Irrigation Act. Though the said notices are titled as notices, they are final orders. The Tahsildar, Medipally Mandal, has directed the petitioners to remove the structures. But, he did not mention the details of encroachment, such as survey 3 . 2003 (4) ALT 346 20 KL,J W.P. Nos.24282 & 24338 of 2024 number and extent encroached in the tabular form of the said notices. Therefore, the Tahsildar has to specifically mention the details of encroachment, survey number and extent etc. The same are lacking in the impugned notices. Thus, the impugned notices are defective. Further, the petitioners were not put on notice and no opportunity was afforded to them. Therefore, impugned notices are in violation of principles of nature justice and the procedure laid down under the aforesaid Acts. Thus, the same is liable to be set aside.

21. In the light of the aforesaid discussion, both the writ petitions are disposed of setting aside the impugned notices, both dated 28.08.2024 issued by the Tahsildar, Medipally Mandal. However, liberty is granted to the Tahsildar, Medipally Mandal to issue fresh notices by specifically mentioning the alleged extent of encroachment, survey number etc. On receipt of such notices, the petitioners shall submit explanations and the Tahsildar shall consider the same and pass orders in accordance with law. Till then, the Tahsildar, Medipally Mandal is directed not to take any further action. In the circumstances of the case, there shall be no order as to costs. 21

KL,J W.P. Nos.24282 & 24338 of 2024 As a sequel thereto, miscellaneous petitions, if any, pending in the writ petitions shall stand closed.

_________________ K. LAKSHMAN, J 18th September, 2024.

Mgr

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