Human Rights & Consumer vs State Of Telangana And Ors

The applicant-Organisation, who claims to be in the fore-front in protecting the environment, more particularly water bodies in and around Hyderabad, filed several complaints for protection of the water bodies before the Hon'ble High Court of Andhra Pradesh, Lokayuktha and National Green Tribunal. The applicant would allege that on reading the news articles published in various newspapers regarding encroachment of Sakhi Cheruvu (Waterbody), the applicant-organisation conducted a survey to find out how the Rules and Regulations are flouted by land sharks and mafias in collusion with local public servants and local police officials and they found a number of unauthorised illegal constructions.

According to the applicant, they found a factory shed coming up in Survey No.236, Pati Village without taking permission from authorities. On enquiry, they were informed that part of the land where factory shed is constructed, belongs to respondent No.9 and the remaining part of the shed is built on the encroached portion of the Nala (water body). The applicant produced photographs along with the application to show the encroachment and the illegal constructions. The applicant filed complaint dated 15.12.2015 and again on 04.01.2016 along with photographs to all the respondents but no action was taken. While so, Respondent No.9 completed the construction work of the factory shed. It is alleged that Andhra Pradesh (Telangana Area) Land Revenue Act 1317 F (1908) prohibits all kinds of encroachment of water bodies even in private properties and declare them as the property of the Government. Section 24 provides that 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 pertaining thereto, are the property of the Government except those belonging to person or class legally capable of holding property and to the extent so far as their such rights are established and those, in respect of which any other order under any law have been given. The Andhra Pradesh (Telangana Area) Land Revenue Rules 1951 were notified in exercise of the powers conferred under Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 F. Rule 27 therein provides that no unoccupied land situated in the bed of Government irrigation source shall be granted patta. It is alleged that still the encroachments have come up in the nalas and in the beds of water body. As per the Andhra Pradesh Land Grabbing (Prohibition) Act 1982, every activity of grabbing of any land whether belonging to the Government, a Local Authority, a Religious or Charitable Institution or Endowment, including a Wakf, or any other private person, by a person or group of persons without any lawful entitlement and with a view to illegally taking possession of such lands or enter into or create illegal tenancies or lease or to construct unauthorised structures thereon for sale or hire, or give such lands to any person on rent or lease and on licence basis for construction or use and occupation of unauthorised structures, are defined as 'land grabbing'. Further, Section 23 of the Andhra Pradesh Water, Land and Trees Act, 2002 prohibits all kinds of encroachments and pollution of water bodies. The designated officers shall have the authority to take required steps to prevent and control polluted water entering the water bodies. Still, the authorities have not taken any action, inspite of complaints lodged by the applicant-association. On the directions of the Hon'ble High Court of Andhra Pradesh, Municipal Administration and Urban Development (II) Department - HMDA constituted a Lake Protection Committee, the 3rd respondent, to protect 00000000000 xthe lakes in Hydrabad Metropolitan Development Authority Area (HMDA). The primary function of the Lake Protection Committee, as defined in the Government Order, is listing of all lakes along with their FTL in HMDA area, give wide publicity and awareness campaign for protection of the lakes, prepare action plan for desilting of the lakes and inflow channels, removal of existing encroachments in the FTL and foreshore areas, clearly demarcate the lakes upto FTL by raising bunds along FTL and arranging watch and ward for preventing future encroachments and misuse of the lake environment. Still action was not taken.

The Hon'ble Supreme Court in the case of Jagpal Singh & others VS State of Punjab & others in SLP (c) No.19869 of 2010 (Civil Appeal No.1132 of 2011 ) directed all the State Governments in the country to prepare schemes for eviction of illegal / unauthorised occupants of Gram Sabha / Gram Panchayat / Poramboke / Shamlat land and restore to the Gram Sabha / Gram Panchayat for the common use of villagers of the village. For this purpose, the Chief Secretaries of all State Governments were directed to do the needful, taking the help of other senior officers of the Governments. Such scheme should provide for the speedy eviction of illegal occupants after giving a show cause notice and a brief hearing. Regularisation should be permitted only in exceptional cases, where lease has been granted under some Government notification to landless labourers or members of SC/ST or where there is already a school dispensary or other public utility on the land. These directions of the Hon'ble Supreme Court were also violated. The applicant, therefore, sought a direction to respondents 1 to 8 to demolish the illegal / unauthorised factory shed being constructed by the respondent No.9 and to take stringent punitive action against all the erring officials and land grabbers who have constructed / allowed illegal and unauthorised constructions.

Respondents 2 and 3 filed a joint reply stating that the 2nd respondent, HMDA has not given any approval for construction of any factory shed or factory building in Survey No.236, Pati village of Medak District. It is contended that HMDA initiates appropriate action for removal of unauthorised encroachment / building built without permission, with the coordination of the local body as and when such complaints are received 00000000by it. The 2nd respondent implements all the provisions of law in full measure and action is taken for demolishing illegal constructions as per due process of law. They also contended that Lok Ayuktha is monitoring the progress of FTL survey of lakes and the 3rd respondent Lake Protection Committee has been submitting status report on the progress of survey of lakes periodically to Lok Ayuktha. The Lok Ayuktha had directed the irrigation and Revenue officials to speed up the verification and certification of surveyed lakes, so that notification of all lakes in HMDA area would be completed. These respondents identified the Sakhi Cheruvu with I.D.No.1200/35 and the preliminary notification was issued based on the certification of FTL area of the lake by the Irrigation Department and put on website for bringing it into public domain. The 5th respondent, the District Collector, Medak District is yet to verify and certify the cadastral map of the lake for final notification. The respondents issued show cause notices dated 31.03.2016 and 23.04.2016 to the 9th respondent through Gram Panchayat, directing to stop the unauthorised construction. The respondents along with the Secretary, Gram Panchayat of Pati village inspected the site on 23.04.2016 and found that respondent No.9 had completed the unauthorised construction of an industrial shed, workers' room, front side compound wall along with gate and erection of electricity transformer in Survey No.236 of Pati Village of Medak District, in violation of various laws. The said land is within the Buffer zone of the lake as per notified Master Plan 2031 of the Hyderabad Metropolitan Region vide G.O.Ms.No.33 dated 24.01.2013. The said construction is not within the limits of any lake or FTL of lake but adjacent to the survey No.236 of Pati village of Medak District and only one Nala i.e. rain water channel, is passing through the said survey number and the matter has been reported to the Government for taking appropriate action for the removal of the encroachment. The Lake Protection Committee requested the concerned District Collector to take appropriate action for removal of the encroachment and for demolition of the illegal constructions. After completion of the stipulated time, the respondent sent a detailed letter dated 25.06.2016 to the District Collector with a request to direct the District Panchayat Officer, Medak and other concerned officials to take immediate action on the illegal constructions made in S.No.236 of Pati Village, which is within the limits of Buffer Zone where constructions are prohibited. In exercise of the powers under Section 23 of the HMDA Act, 2008, the respondents already issued notices to the local bodies to take immediate steps for removal of the unauthorised constructions made in violation of rules. The Lake Protection Committee has convened 14 meetings till the time of filing reply to discuss various issues regarding the protection and conservation of lakes in HMDA area, demarcation and fixation of FTL boundaries, identification of buffer zones, restoration of bunds and weirs, developing lake memoirs, prevention of pollution of lakes etc,. So far, 2857 lakes have been identified by the 3rd respondent in HMDA area including 168 lakes which are falling under the jurisdiction of the Greater Hyderabad Municipal Corporation (GHMC) after due consultation with all stake holders / members of Lake Protection Committee. Preliminary notifications were issued for 469 lakes in the erstwhile HUDA area under Phase I and 234 lakes out of 1400 lakes under Phase II after obtaining certification of FTL Maps. The certification for the remaining surveyed lakes is yet to be received from the Irrigation Department. The respondents, therefore, sought to dismiss the application.

The Secretary of the Pati Gram Panchayat, respondent No.8 filed a reply claiming that he is well acquainted with the facts of the case. In the reply, it is stated that the complaint dated 15.12.2015 addressed to the District Panchayat Officer, Medak District sent by the applicant, raising allegation of encroachment of water body-Nala adjacent to the plot of the respondent No.9, was received. The District Panchayat Officer by memo dated 02.01.2016 instructed the Panchayat Secretary, Pati Gram Panchayat, Extension Officer (PR & RD), MPP Patancheru and Divisional Panchayat Officer, Sangareddy to take necessary action as per the rules in force regarding the alleged unauthorisd constructions and encroachment of lands in S.No.236 and in nala by the respondent No.9. The respondent issued notice dated 24.02.2016 to the respondent No.9 directing him to produce documents of permission for construction being undertaken in S.No.236. Respondent No.9, in turn submitted an explanation dated 26.02.2016, in which, it was stated that respondent No.9 admitted that he purchased the land as per the Registered Sale Deed No.11099/2007 from one, Smt.Krishna Bai and he is permanently residing at Vadloor Yellareddy village, near Kamareddy, Nizamabad District since past 3 to 4 years and engaged in cultivation. It was further contended that when respondent No.9 visited the site on 25.02.2016, he found that unknown persons had constructed a huge shed along with 4-5 rooms in the land. Inside the factory shed, some machinery had been installed and large quantity of black chemical powder was found to be stored in open land adjacent to the factory. It is also stated that the nala adjacent to his land was found filled up with mud and a portion of the Government land was encroached. A bore-well was seen in the nala area with a motor and starter fixed with electricity, drawn from nearby Government electrical lines. Further, a transformer and switchboard have been installed in the nala and Government land. Respondent No.9 also requested to demolish the factory shed immediately and to take action on the persons who grabbed this land and erected a huge shed and dumped large quantity of black chemical powder in the open land. It is stated by the respondent No.8 that when the applicant contended that illegal construction was made by respondent.No.9, respondent No.9 pointed out that the construction was made by unknown persons. The respondent also contended that the subject matter pertains to Revenue Department and it is for the Revenue authorities to take necessary action against land grabbing by respondent No.9. and file a case before the Civil Court or Land grabbing Court, Hyderabad, as it pertains to civil dispute.

Pati Village falls under Hyderabad Metropolitan Development Authority (HMDA) jurisdiction and under Section 19 of HMDA Act, 2008, no development or institution of use or change of use of any land shall be undertaken or carried out in the metropolitan region without obtaining a Development Permission Order from the Metropolitan Development Authority.

Respondent No.9 filed a reply admitting the receipt of notice sent by the applicant. It was contended that he shifted his residence along with his family to Vadloor Yellareddy village in Nizamabad District, where he is owning agricultural lands. He admitted that he is the owner of 20 Guntas of land in Survey No.236 of Pati Village, Medak District, which was purchased by him from one, Smt.Krishna Bai in the year 2007. When he received the notice from the 8th respondent on 24.02.2016, he was shocked to know about the illegal construction. He immediately, visited the plot and enquired and found that some unknown persons have grabbed his land along with adjacent Government land and flood water nala and constructed a huge factory shed. In the reply dated 26.02.2016, sent to the respondent No.8, he requested the 8th respondent to demolish the factory shed immediately and to take criminal action on the persons who grabbed these lands and erected a huge factory shed and dumped large quantity of black chemical powder in the open land. It is contended that 8th respondent was in collusion with some private persons who grabbed the property and constructed the shed. The respondent immediately filed a written complaint dated 26.02.2016 against respondent Nos.5 to 7. A police complaint was also filed to take action. It is contended that he should be exonerated and prayed to demolish the illegal construction of the factory shed in his property and take action against respondent No.8.

The other respondents did not file reply inspite of repeated opportunities given and thereby waived the right to file reply.

The applicant, who appeared in person, the learned counsel appearing for respondents 1 to 8 and respondent No.9 were heard.

Apart from the general allegations regarding the encroachment of the lake, and nala, the specific allegation in the application is only with regard to the illegal construction of a factory shed in the property of the respondent No.9. as well as encroachment of a portion of the water body. The case of the applicant that the property of the respondent No.9 is in Survey No.236 of Pati village is admitted by respondents 2, 3 and 8 in their replies. The respondent No.9 also in unambiguous terms admitted that he is the owner of 20 Guntas of land in S.No.236 of Pati Village and towards its eastern boundary there is nala. The allegation of the applicant is that a portion of the said nala, which is adjacent to the land in S.No.236 belonging to respondent No.9, was encroached upon illegally and a factory shed has been illegally constructed in both the lands without any permission. While admitting that respondent No.9 is the owner of 20 Guntas of land in S.No.236 of Pati Village and a factory shed has been constructed illegally without taking any permission, respondent No.9 would only contend that the shed was not constructed by him but by some unknown persons. When the applicant sent a complaint, on realising that there is encroachment of a portion of nala and a factory shed was constructed illegally in that land along with the land in S.No.236 of Pati village, respondents 2 and 3 admitted that they inspected the land on 23.04.2016. Respondent Nos.2, 3 and 8 admitted that Pati village is within HMDA area and one nala i.e. rain water channel, is passing through the said S.No.236 of Pati village and it is within the limits of Buffer Zone, where constructions are prohibited. The respondents have also stated that no permission, whatsoever, was obtained for the construction of the shed. It is therefore clear that the construction is illegal. It is also admitted by respondents 2 and 3 that as provided under Section 23 of Hyderabad Metropolitan Development Authority (HMDA) Act, 2008, it is for the 2nd respondent, the Metropolitan Commissioner to take action for the removal of any unauthorised development made in violation of various rules. Though respondents 2 and 3 would contend that notices have been issued under Section 23 of HMDA Act, it is not their case that the illegal construction was demolished or the nala portion is restored. The 2nd respondent, Metropolitan Commissioner is expected to take action in accordance with law to preserve the buffer zone area intact without any prohibited constructions.

Respondents 2 and 8 have admitted that a portion of Nala has been encroached upon, which is adjacent to the land in Survey No.236 of Pati village which belongs to the respondent No.9. Though it is the case of respondent No.9 that the construction of the shed was not by him but by some unknown person, he cannot be heard to contend that the illegal constructions were made in his land by somebody and that such unknown persons encroached a portion of nala adjacent to his land and added to the land belonging to him and illegal construction has been effected on the land belonging to the respondent No.9 as well as the encroached portion of the nala. The respondents 2 and 3 tried to evade their responsibilities, stating that it is for the Revenue Authorities to take action. Respondent No.8 had contended that it is for the HMDA to take action. Strangely, the encroachment is permitted to be continued and the illegal construction has been kept intact without any disturbance. The photographs produced by the applicant shows that even illegal electric connection has been taken from 100 KVA transformer, passing through the land, which is not only illegal, unlawful but also dangerous. This fact is also admitted in the joint reply filed by the respondents 2 and 3 and it is also recorded that an electric transformer is erected in the nala.

When even respondent No.9, who is the owner of the land in S.No.236 of Pati Village, to which the encroachment portion of nala is annexed and an illegal construction has been effected, has no case that the construction is lawful, nothing remains to be adjudicated.

Before parting with the case, we deem it necessary to remind the respondent Nos. 2, 3 and 8 about their responsibilities. The admitted facts reveal total inaction on their part. When illegal constructions are made and encroachment on the water bodies was effected, the concerned officials cannot be expected to be mute witnesses to the said illegal acts and thereby aid the encroachments. They are expected to take stringent action, without any delay. The facts reveal that prompt action was not at all being taken in such cases. Rampant encroachments and constructions on water bodies is severely damaging the environment leading to disastrous consequences. The Chief Secretary of Telangana State is, therefore, directed to take prompt action against the officers who remain mute witnesses to such encroachments, in accordance with law. A copy of the judgment be directly sent to the Chief Secretary, State of Telangana for appropriate action in accordance with law.

The Original Application is, disposed of with a direction to respondent Nos. 1 to 8 to demolish the illegal construction of the factory shed in S.No.236 of Pati village along with the encroached portion of nala. It should be completed within a period of two months from the date of receipt of a copy of this order. The encroached portion of nala shall be restored as part of the nala to its original condition. The respondent No.5, the District Collector, Medak District is directed to monitor the removal of encroachment and demolition of the illegal constructions. Compliance report both on removal and demolition of constructions and initiation of disciplinary action against the officials responsible for allowing such illegal activities, is to be filed before the Tribunal within two months. The parties are directed to bear their own costs