Muth Khaki Baba v. Tahsildar, Nampally Mandal Nampally
2024-03-28
ALOK ARADHE, MOUSHUMI BHATTACHARYA
body2024
DigiLaw.ai
ORDER: (Per the Hon’ble the Chief Justice Alok Aradhe) Mr. Venkata Raghu Mannepalli, learned counsel for the petitioners. Mr. Mohammed Imran Khan, learned Additional Advocate General for the State. 2. In this writ petition, the petitioners have assailed the validity of order dated 28.04.2014 passed by the Tahsildar under the Andhra Pradesh Water, Land and Trees Act, 2002 (hereinafter referred to as “the 2002 Act”). 3. In order to appreciate the grievance of the petitioners, relevant facts are mentioned below. 4. Petitioner No.1 is the religious institution and is situated at Petla Burj, Hyderabad. The petitioners claim that land admeasuring Acs.3.24 guntas belongs to the Muth, namely, Khaki Baba registered with the endowment department. It is further averred that land measuring Acs.2.50 guntas belongs to Hanuman Temple. It is also averred that in open land admeasuring Acs.5.24 ½ guntas, the constructed property of the Muth and temple has been shown in the survey conducted by Asif Jah Ruler Nizam-VII in the year 1913. 5. Order dated 28.04.2014 was issued to the petitioners in purported exercise of powers under Section 23(2) of the 2002 Act by which the petitioners were informed that they have encroached on Musi river bed and they were directed to remove the encroachment within 15 days from the date of receipt of the order, failing which penalty will be levied on them under the 2002 Act. 6. We have heard the learned counsel for the parties at length and have perused the record. 7. The 2002 Act is an Act enacted with an object to promote water conservation and tree cover and regulate the exploitation and use of ground and surface water for protection and conservation of water sources. Section 2(2) of the 2002 Act defined the expression “Designated Officer” to mean an officer or any person so designated by the authority to perform the functions under the 2002 Act. The expression “Authority” has been defined to mean the Andhra Pradesh State Water, Land and Trees Authority constituted under Section 3 of the 2002 Act. Section 23 of the 2002 Act deals with protection of lakes, ponds and tanks. The relevant extract of Section 23 reads as under: “23.
The expression “Authority” has been defined to mean the Andhra Pradesh State Water, Land and Trees Authority constituted under Section 3 of the 2002 Act. Section 23 of the 2002 Act deals with protection of lakes, ponds and tanks. The relevant extract of Section 23 reads as under: “23. Protection of lakes, ponds and tanks – (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 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 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.” 8. Thus, it is evident that the designated officer under the 2002 Act has power to prevent and to remove the encroachments into the demarcated area of the water body. In the instant case, it is not in dispute that the Tahsildar is the designated officer under the 2002 Act, who is empowered to take action under Section 23(2) of the 2002 Act. 9. It is well settled legal proposition that when the statute confers power on a particular authority, such a power has to be exercised by that authority alone and not at the dictates of the higher authorities. (see Commissioner of Police, Bombay vs. Gordhandas Bhanji ( AIR 1952 SC 16 )). 10. In the instant case, though the Tahsildar is the designated authority under the 2002 Act, from a perusal of the impugned order it is evident that the Inspector General of Police, Transport Organization vide communication dated 15.10.2013 has requested the Collector, Hyderabad to interfere in the matter and has stated that the petitioners have raised illegal structures on the river bed.
Thereupon, the Collector has instructed the Tahsildar to take action in the matter, in pursuance of which, the impugned order has been passed. Thus, the power vested in the Tahsildar as designated authority under the 2002 Act has been exercised on the dictates of higher authorities, namely, the Inspector General of Police and the Collector. Such an exercise of power cannot be sustained in the eye of law. Therefore, the impugned order dated 28.04.2014 is quashed. However, liberty is reserved to the designated authority to take action against the petitioners, if so advised, in accordance with law. 11. With the aforesaid liberty, the writ petition is disposed of. Miscellaneous petitions, pending if any, stand closed. No order as to costs.