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2024 DIGILAW 809 (TS)

V. Venugopala Krishna v. State of Telangana

2024-09-25

ANIL KUMAR JUKANTI

body2024
ORDER : (Anil Kumar Jukanti, J.) : This writ petition is filed seeking following prayer: “…to issue an order or direction more particularly one in the nature of Writ of Mandamus by i. Declaring the action of the Respondent No.2 in issuing Preliminary Notification bearing No.1404/ HMDA/EE L&P/2013-14/9 Dt.07/06/2014 and thereby illegally increasing the extent of Durgam Cheruvu as 160.700 Acres based on a fallacious Survey Conducted on 30/06/2013 and unlawfully including the Petitioner’s Property i.e., H.No.1-95-B/7, Kalyan Nagar, situated in Sy.No.47 and 49 in Madhapur Village, Serilingampally Mandal, Hyderabad – 81, Telangana, under Full Tank Level/Buffer Zone of Durgam Cheruvu by marking ‘F’ on the wall of the subject property as against to the Memoirs of Irrigation Sources in Major Basin Krishna issued by the Irrigation Department in the year 1974 declaring the extent of Durgam Cheruvu as approximately 65 Acres and also against the observations of the Hon’ble High Court of A.P. in W.P.No.24975 of 2000 Dt.03/09/2003 as illegal, arbitrary and Violative of Article 300-A of the Constitution of India ii. Consequently, set aside the Preliminary Notification bearing No.1404/HMDA/EE L&P/2013-14/9 Dt.07/06/2014 issued by the Respondent No.2 in which the extent of Durgam Cheruvu is increased from Ac.65.12 as notified by HUDA in the year 2000 to Ac.160.700 unilaterally without following due process of law; iii. Further direct the Respondents to conduct Joint Survey of the Durgam Cheruvu before the concerned authorities and the private parties having interest afresh preferably by the Survey of India and demarcate the Full Tank Level / Buffer Zone of Durgam Cheruvu in accordance with the Memoir Records of the Durgam Cheruvu maintained by the Irrigation Department of the year 1970 and also in accordance with the provisions of the Survey and Boundaries Act, 1923 by issuing notices to the interested parties including to the Petitioner; iv. Further direct the Government Authorities by any name to not to interfere with the peaceful possession and enjoyment of the Petitioner over his Subject Property i.e., H.No.1- 95-B/7, Kalyan Nagar, situated in Sy.No.47 and 49 in Madhapur Village, Serilingampally Mandal, Hyderabad-81, Telangana till the finalization of the boundaries and FTL / Buffer Zone of the Durgam Cheruvu; v. And pass such other order or orders as this Hon’ble Court deems fit and proper in the circumstances of the case in the interest of justice.” 2. Heard Mr. D. Kireet, learned counsel for petitioner, Mr. Heard Mr. D. Kireet, learned counsel for petitioner, Mr. V.Narasimha Goud, learned Standing Counsel for Hyderabad Metropolitan Development Authority (HMDA) for respondent No.2, Mr. K.Ravinder Reddy, learned Standing Counsel for Greater Hyderabad Municipal Corporation (GHMC) for respondent No.5 and learned Special Government Pleader representing learned Additional Advocate General for respondent Nos.1, 3 and 4. 3. Brief facts: Petitioner avers that he is the absolute owner and peaceful possessor of H.No.1-95-B/7, Kalyan Nagar, situated in Sy.Nos.47 and 49, in Madhapur Village, Serilingampally Mandal (hereinafter referred to as “subject property”). It is the case of petitioner that he was gifted the subject property vide Gift Deed No.732 of 1996, dated 07.02.1996, by his mother-in-law, who purchased the said property vide Sale Deed Document No.9640 of 1990 dated 30.07.1990. 4. It is the case of petitioner that plots are classified as Patta land and the designated area is declared as residential zone by Municipal Authorities as per HUDA’s letter No.8668/HUDA/90/P5 and that these land(s) do not belong to Government nor the area is a Tank Bed nor Sikham Land. It is further the case that Land Acquisition Proceedings of the Special Deputy Collector under the Land Acquisition Act, 1894 vide proceedings, dated 04.11.2013, confirmed the same. It is also averred that the residents have electricity, water and sewage connections, after obtaining permission from the concerned authorities. 5. It is averred that for the first time in the year 2010, the Town Planning Section has issued show cause notice, dated 29.07.2010, under Section 452(2) of Greater Hyderabad Municipal Corporation Act, 1955 (for short ‘the GHMC Act, 1955’) that the subject property was covered within the FTL boundary of Durgam Cheruvu and petitioner was asked to submit his explanation to the show cause notice. Petitioner submitted his explanation on 11.08.2010 and the same was received in the Office of the Town Planning Section. On 01.10.2015, petitioner received a notice under Section 11 read with Section 7 of PA (TA) Irrigation Act, 1357 Fasli, dated 26.09.2015, from the Special Grade Deputy Collector & Revenue Divisional Officer, wherein petitioner was directed to evict the encroached area across the FTL area of Durgam Cheruvu and notices were also issued to the neighboring house owners of the colony. 6. 6. Pursuant to the directions of a Division Bench of this Court, State Government of Telangana appointed Expert Committee to verify the status of different lakes within the surroundings of the city twin cities (all lakes) with regard to FTL/Buffer zone including Durgam Cheruvu. 7. Grievance of the petitioner is that he has been residing in the said area for more than 2 ½ decades and having received the said property by way of gift deed from her mother-in-law and having acquired permission(s) from the concerned authorities, built an residential house with all the parameters. Petitioner challenges the notification bearing No.1404/HMDA/EE L&P/2013- 14/9, dated 07.06.2014, on the ground that the area of the said lake has been re-fixed to the extent of 160.70 acres by which an excess of 95 acres has been made out in the memoirs of the Irrigation Department prepared in the year 1970 and 1974. 8. Petitioner is now aggrieved by the marking which has been made on his residence walls and subject property is being shown as encroached property lying in the FTL/Buffer zone. 9. Learned counsel for petitioner submits that the memoirs of 1970 and 1974 speaks of an extent of 65 acres only and that it has been increased to 160.70 acres and now the respondent authorities are trying to interfere with the peaceful possession of petitioner’s subject property, without following due process of law. Photographs of the markings are filed as part of record from page Nos.96, 97, 98 and 99. 10. Learned counsel for petitioner relied upon paragraph Nos.19, 20, 21, 22 and 23 of the order of Division Bench passed in W.P.No.25702 of 2024 and batch. 11. It is submitted that respondents cannot initiate any proceedings, without following due process of law and an opportunity be provided to petitioner to present his case before the appropriate committee (Lake Protection Committee). It is further submitted that petitioner is willing to submit a representation with all the documents to the said committee within three (03) days. 12. Learned Special Government Pleader for respondents submitted that notices were issued in the year 2010 and 2015 by the concerned authorities, but for reasons best known, no action was initiated. It is further submitted that petitioner is willing to submit a representation with all the documents to the said committee within three (03) days. 12. Learned Special Government Pleader for respondents submitted that notices were issued in the year 2010 and 2015 by the concerned authorities, but for reasons best known, no action was initiated. It is further submitted that notification, dated 07.06.2014, was issued by respondent No.2 and that objections were invited from all concerned parties and pursuant to the said notification, dated 07.06.2014, objections were received by the concerned authorities. It is also submitted that re-fixation to extent of 160.70 acres is in accordance with law, findings of the Irrigation Department and concerned authorities who are empowered to fix FTL/Buffer zone. It is urged that there is no infirmity in re-fixation of the FTL/Buffer zone i.e., the area of the lake for protection of the water body. 13. Learned Special Government Pleader has drawn attention of this Court to paragraph Nos.16 and 17 of the order of Division Bench in W.P.No.25702 of 2024 and batch and submitted that descriptive memoirs consider the technical features, which have been designed and developed for the Irrigation purposes and that no relief can be granted to petitioner, as the issue is pending for consideration before Lake Protection Committee. 14. Heard learned counsels, perused the record and considered the rival submission. 15. Petitioner is a resident of house bearing No.1-95- B/7, Kalyan Nagar, Madhapur. It is not in dispute that petitioner’s house has been marked, on the ground that his house is falling under FTL/Buffer zone of Durgam Cheruvu. It is not in dispute that the area of FTL has been fixed to 160.70 acres. The contention of petitioner is that re-fixation of such extent of area would undoubtedly effect a lot of citizens, who bonafidely purchased the land in the said re-fixed area. No doubt the contention has some force, but whether such area falls under FTL/buffer zone or not is to be decided by the concerned authorities and not for this Court to go into. 16. Preliminary notification was issued in the year 2014, objections were invited. Whether preliminary notification has been issued on the basis of re-fixation of extent of land or not, whether the State Government has acted within a reasonable time or not, are all issues which have to be considered at a later point of time. 16. Preliminary notification was issued in the year 2014, objections were invited. Whether preliminary notification has been issued on the basis of re-fixation of extent of land or not, whether the State Government has acted within a reasonable time or not, are all issues which have to be considered at a later point of time. Till date, whether any action has been initiated or not is not forthcoming. 17. This Court has perused the order of the Division Bench of this Court in W.P.No.25702 of 2024 and batch, wherein the Division Bench, while dealing with similar issue, in paragraph Nos.16 to 23 has issued certain directions, which are as follows: “16. It appears that in the Descriptive Memoirs, the Durgam Cheruvu tank was shown to have an area of Acs.65.12 guntas. The Descriptive Memoirs consider the technical features, which have been designed and developed for the irrigation purpose, but at present it appears that there is no irrigation ayacut and the Descriptive Memoirs by itself cannot be considered as basis for defining and deciding the FTL limits. However, the same can be considered for collateral purposes. It is pertinent to note that the Descriptive Memoirs have been made under Para 393 of the Andhra Pradesh Public Works Department Code. Admittedly, the aforesaid Code has no statutory force. 17. The HMDA issued a preliminary notification dated 07.06.2014 notifying the FTL of several tanks, including the Durgam Cheruvu tank. The relevant extract of the preliminary notification dated 07.06.2014 reads as under: “After verification and certification by the Irrigation Department, 67 lake maps with FTL boundaries and buffer zones duly showing Revenue Survey Numbers are hereby notified under Sections 11, 13 and 54 of the HMDA Act, 2008 for filing objections and suggestions on the FTL boundary maps of the lakes as per the list enclosed by 5:00 PM on 15.07.2014 at the following address: Metropolitan Commissioner HMDA & Chairman Lake Protection Committee Block-A, HMDA Complex, Tarnaka, Hyderabad – 500007 Member Environment HMDA & Convenor Lake Protection Committee Buddha Purnima Building, #6-1-2/1, TankBund Road, Hussain Sagar, Hyderabad – 500063. Or alternatively be mailed to the following address: me@hmda.gov.in (OR) director_lpc@hmda.gov.in After examining the objections and suggestions received, if any on the FTL boundary and buffer zone of lakes notified, the final notification will be issued. The notification is available on website of HMDA ( www.hmda.gov.in ). Or alternatively be mailed to the following address: me@hmda.gov.in (OR) director_lpc@hmda.gov.in After examining the objections and suggestions received, if any on the FTL boundary and buffer zone of lakes notified, the final notification will be issued. The notification is available on website of HMDA ( www.hmda.gov.in ). Sd/- Metropolitan Commissioner, HMDA & Chairman, Lake Protection Committee” 18. No relief as sought for by the petitioners in these writ petitions can be granted to them, as the issue is pending consideration before the Lake Protection Committee. 19. The Lake Protection Committee has issued the preliminary notification on 07.06.2014 and has invited objections. The petitioners have filed objections before the Lake Protection Committee before the date specified therein. It is the case of the petitioners that their objections have neither been decided nor a final notification has been issued notifying the FTL of Durgam Cheruvu. 20. At this stage, learned Special Government Pleader submits that the objections which are submitted by the petitioners in pursuance of the aforesaid preliminary notification may not be on record. 21. In response, the learned counsel for the petitioners submit that the petitioners shall supply a copy of the objections, which were submitted by the petitioners on the date specified in the preliminary notification, to the Lake Protection Committee within a period of one week from today. 22. In the facts and circumstances of the case, the following directions are issued: i) The petitioners may supply a copy of the objections, which were furnished by them on or before 15.07.2014, before the Lake Protection Committee within a period of one week from today. It shall be open for the petitioners to furnish the public documents in support of their objections already filed. ii) As agreed by the learned counsel for the parties, the petitioners undertake to appear before the Lake Protection Committee on 04.10.2024 at 11:00 am. iii) Thereupon, the Lake Protection Committee shall hear the petitioners and shall decide the objections filed by the petitioners by a speaking order. iv) Thereafter, the Lake Protection Committee shall issue a notification notifying the FTL of Durgam Cheruvu. The aforesaid exercise shall be completed within a period of six weeks from the date of appearance of the petitioners before the Lake Protection Committee. 23. iv) Thereafter, the Lake Protection Committee shall issue a notification notifying the FTL of Durgam Cheruvu. The aforesaid exercise shall be completed within a period of six weeks from the date of appearance of the petitioners before the Lake Protection Committee. 23. The learned Special Government Pleader submits that till the aforesaid exercise is carried out, no action shall be taken for demolition of the construction raised by the petitioners. The same is placed on record.” 18. In the facts and circumstances of the said case and taking note of all the developments and having heard the counsels at length, this Court is of the opinion that interests of justice would be met, if petitioner is permitted to make a representation, as sought for, with all the relevant documents before the Lake Protection Committee on or before 01.10.2024. Needless to state that this Court is bound by the directions passed by the Division Bench, the authorities concerned shall follow the directions issued by the Division Bench of this Court vide order dated 23.09.2024 in W.P.No.25702 of 2024 and batch. 19. With the above observations, Writ Petition is disposed of. No order as to costs. Miscellaneous petitions, if any, pending, shall stand dismissed.