IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FOURTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 28245 of 2007 Between: 1 Fishermen Co-operative Society, Budhawarpet, Nirmal Town, Adilabad District, rep. by its President Putti Gangadhar. 2 Fishermen Co-operative Society, Budhawarpet, Nirmal Town, Adilabad District, rep.by its Secretary Putti Poshetty ..... PETITIONERS AND 1 The Municipal Council, Nirmal, Adilabad District, rep. by its Commissioner. 2 The REvenue Divisional Officer, Nirmal, Adilabad District. 3 The Tahsildar (Mandal Revenue Officer) Nirmal, Adilabad District. 4 The District Collector, Nirmal, Adilabad District. 5 The Assistant Director of Fisheries, Nirmal, Adilabad District. 6 The Commissioner of Fisheries Department, Govt. of A.P., Hyderabad. 7 The Government of A.P., rep. by its Prl. Secretary, Revenue Department, Secretariat, Hyderabad. 8 The Government of A.P., rep. by its Principal. Secretary, Animal Husbandry and Fisheries Department, Secretariat, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an order, direction, or a writ, more particularly one in the nature of Writ of Mandamus to call for the records and remarks from the Respondents herein in and connected to (i) the steps taken by the Respondents No.1, 3 and 5 (Party Respondents in WA No.344 of 2007) pursuant to the order of the Division Bench of this Court in WA No.344 of 2007 dt. 26.04.2007 for preventing encroachment in Dharmasagar Tank and Gollapet Kunta; (ii) filling up the Dharmasagar tank, Covered by Survey Nos. 2032, 2033 and 2034 with soil towards western side of the said tank by Sri A.Goutham Reddy, S/o. A.Indrakaran Reddy, MLA and others inspite of the order of the High Court dt. 26.04.2007 in WA No.344/2007; (iii) action of the Respondent No.2 in issuing Proceedings No. 2333/2007 dt. 05.10.2007 to the Commissioner, Nirmal Municipality for conversion of land in Sy.No.2032 into commercial land and obtaining the approval of the Municipal Council in violation of the orders of this Court; (iv) encroaching the eastern side of the Tank Bund Dharmasagar N.H. No.7 Road way in S.No. 2034 by the Municipal Chair Person and her family members; and (v) endangering the livelihood of 150 families of fishermen, who were dependent on fishing in the said Dharmasagar Tank; and this Hon'ble Court may be pleased to pass appropriate orders directing the Respondents to take immediate steps (i) to protect the Dharmasagar tank, Full Tank Level; (ii) provide protection to the lives of the members of the Petitioner society from the encroachers and (iii) to initiate necessary action against the encroachers; (iv) not to convert the subject land as commercial land and to pass such other or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: PETITION Counsel for the Respondent No.1: Sri Polisetty Radhakrishna Standing Counsel for Municipalities (Telangana Area) Counsel for the Respondent Nos.5, 6 & 8: G.P. for Fisheries Counsel for the Respondent Nos.2,3,4 & 7: G.P. for Revenue The Court made the following : . THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE B. SESHASAYANA REDDY WP No.28245/2007 ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) This is a taken up writ petition on the basis of the petition dt.24-12- 2007 addressed by the Fishermen Co-operative Society, Budhwarpet, Nirmal Town to the Honourable Chief Justice. The averments in the petition would go to show that there are about 150 families of fishermen community and they are eking out their livelihood by catching fish in the Dharmasagar tank, which is covered by S.Nos.2032, 2033 and 2034. All the three survey numbers are under the Full Tank Level (FTL). Earlier the Government spent Rs.44 lakhs for making the tank as mini tank bund as a picnic spot by arranging central lighting. When one A. Goutham Reddy cutting the bund and filling up the said tank with morrum, representation dt. 2-4-2007 has been submitted to the District Collector, Adilabad, Revenue Divisional Officer, Nirmal, Tahsildar, Nirmal, Municipal Commissioner to stop the illegal encroachment. Since no action has been taken, they are compelled to move the High Court by filing WP No.7232/2007 and the same was dismissed. On dismissal, Fishermen Co-operative Society filed W.A. No.344/2007, which was disposed of directing the District Collector, Adilabad, Tahsildar, Nirmal, Municipal Council, Nirmal, Fisheries Development Officer, Adilabad District at Nirmal to take immediate steps for preventing any encroachment on Dharmasagar tank and Gollapet kunta. If the Fishermen Co- operative Society finds that despite the order the respondents have not taken steps to prevent encroachment in Dharmasagar tank and Gollapet kunta, the Society shall be free to initiate contempt proceedings. On issuing such directions, the Revenue Divisional Officer, Nirmal in his proceedings No.2333/2007 dt. 5-10-2007 permitting the Commissioner, Nirmal Municipality, to convert the use of land in S.No.2032 into commercial after obtaining the approval of the Municipal Council. Later Municipal Chairman, Municipal Council, Nirmal obtained the approval of the Council dt. 30-10-2007 as per Agenda dt. 25-10-2007 in item No.10 and sent the proposals to the Director of Town and Country Planning, Hyderabad. When the same is pending, Municipal Chair Person and her family members encroached eastern side of tank bund Dharmasagar in S.No.2034. In spite of bringing the said fact to the authorities by way representations, no action is forthcoming. In response to the rule nisi issued, the Commissioner, Nirmal Municipality filed counter-affidavit stating that 5th respondent is a competent authority to decide the area of operation of the respective Fishermen Co- operative Societies and the competent authority to lease out the tanks for fishing to the respective Co-operative Fishermen Societies. The water spread area of Dharmasagar tank is confined to only to an extent of 26 hectares in S.No.2033 and not other areas as alleged. As per the certificate issued by the Assistant Engineer, Irrigation & Command Area Development, Medium Irrigation, Sub-Division, Nirmal S.No.2032 is above the FTL of Dharmasagar tank. The Government proposed to develop the Dharmasagar tank as mini tank bund. Due to urbanization, entire ayacut of Dharmasagar was kept fallow and many structures were raised in the ayacut lands by converting the land into house sites and since last 10 years there is no utilization of Dharmasagar tank for irrigation of ayacut. At the time of widening of the road on the tank bund, to avoid the encroachments of ayacut private lands situated on the southern side of tank bund, the road was developed on the northern side by filling the earth towards tank bed area. In the process, lands covered by water bed under Dharmasagar tank were affected, which ignited the controversy. After widening of the tank bund into double road, all the sluice for release of the water from the tank were closed and entire water was stagnated without outlet. At the place where the over-flow was allowed, a Shadikhana was constructed by the minority community across the over-flow, which has become impossible to let out the incoming water from the Dharmasagar tank, which resulted stagnation of water, which is causing lot of pollution and the same is also affecting underground water in the surrounding areas. The lands in S.No.2034, 2035, 2036, 2037 and 2045 situated on the eastern side of the Dharmasagar tank, water spread area are nothing to do with the Dharmasagar tank water spread area and FTL. As per the Master Plan of Nirmal town, the area in S.No.2033 is only shown as an area of Dharmasagar tank and all the lands surrounding to it were shown as residential and whereas lands in S.No.2035, 2036, 2037, 2038 and 2039 and major part of S.No.2034 are shown in commercial zone, which is separated from S.No.2033. S.No.2032 is a private patta land where land revenue was collected as a single crop wet land. Pattedars of the land applied for conversion of the land into non-agricultural purpose, on which the Revenue Divisional Officer, Nirmal passed orders to the effect of collection of 100% of the value towards conversion charges as per the basic value register and pattedars have paid an amount of Rs.1,88,760/- towards the conversion charges. Having regard to the fact that S.No.2032 is notified as a residential area in the Master plan of Nirmal Municipality and in the light of the orders passed by this court in WA No.344/2007, the council resolved by resolution to forward the same to the Director of Town and Country Planning, Hyderabad for change of land use from residential to commercial, but the same is not so far forwarded to the higher authorities. The land in S.No.2034 is a private patta land and is situated between the tank bed of Dharmasagar and National Highway No.7 road. Smt. Appala Posani Bai gifted her share of land to her sons through registered gift settlement deed dt. 25-10-2007. The said land was also notified as private land in the Master Plan but not Shikam land of Dharmasagar tank. One A. Gowtham Reddy, son of A.Indrakaran Reddy purchased a part of land in S.No.2032 and Appala Meshwar became the owner of part of land along with his brothers and others in S.No.2034. Due to political rivalry between them, the above letter appears to have been addressed to the Honourable the Chief Justice. The fifth respondent, namely, Assistant Director of Fisheries, Nirmal, filed counter-affidavit stating that there are two tanks in the area of operation of the Fishermen Co-operative Society, Budhwarpet consisting 48 members ie., Dharmasagar and Gollapeta kunta with water spread area of 26 hectares and 19 hectares respectively. The Fishermen Co-operative Society, Budhwarpet is regularly obtaining the fishing rights of Dharmasagar tank from the Fisheries Department by remitting the rentals fixed by the District Collector and enjoying fishery wealth of the tank. They have admitted about representation made by the Society to the District Collector, Adilabad submitting a copy to them alleging encroachment of shikam land of Dharmasabgar tank, enclosing a copy of the orders passed by the High Court in writ appeal. On receipt of the same, the fifth respondent addressed a letter dt. 31-10-2007 the Revenue Divisional Officer, Nirmal by submitting copies to the District Collector, Adilabad and Tahsildar, Nirmal for taking necessary action. The fifth respondent personally contacted the revenue authorities and requested them to take necessary action. The Revenue Divisional Officer, Nirmal addressed the Sub-Divisional Police Officer, Nirmal and Tahsildar, Nirmal for taking immediate necessary action to protect the encroachment. The Revenue Divisional Officer, Nirmal addressed the Executive Engineer, I & CAD, Nirmal to fix up the boundaries of Dharmasagar tank with the help of Assistant Director, Survey and Land Records, Adilabad for the purpose of protecting the shikam land of the tank, and same is now pending with the revenue department. In view of the above counter-affidavits, a report was called for from the Joint Collector, Adilabad on 18-2-2008. In response to the same, the Joint Collector, Adilabad submitted a report stating that the original extent of area of Dharmasagar tank is Ac.65-00 guntas in S.No.2033 and the entire tank bed land is found intact and no encroachments of the tank bed lands are noticed, except 0-28 guntas covered by Dhobighat by Social Welfare Department for public purpose and the water area available at present is to an extent of Ac. 58.15 guntas. It is further stated that land in S.No.2032 measuring Ac.0-39 guntas is a ryothwari patta land and it is vacant and some filling operations have taken place in S.No.2034 mesuring Ac.2-00 guntas which is the ryotwari patta land. The Executive Engineer, Irrigation & Comand Area Development, IB Division, Nirmal has been directed vide letter dt. 30-1- 2008 to fix up the Full Tank Level of Dharmasagar tank to avoid encroachment. The Executive Engineer has fixed FTL of the Dharmasagar Tank. At present, there is no irrigation under the Dharmasagar tank. The Fishermen Co-operative Society is utilizing the tank for the purpose of catching fish and leased out every year on payment of rentals fixed by the District Collector, Adilabad. The original extent of area of Gollapeta Kunta, Nirmal is Ac.48-11 guntas in S.No.539 and no encroachments are noticed. During the course of inspection by the Joint Collector on 5-3-2008, it was found that around Shikam area pillars are posted, and the Shikam is free from encroachments to an extent of Ac.65-00. In view of the report submitted by the Joint Collector, this court has no hesitation to hold that there is no encroachment of area of Dharmasagar tank ie., Ac.65-00 except dhobi ghat covering Ac.0-28 guntas by Social Welfare Department for public purpose and at present water area is available in Ac.58-15 guntas. The counter affidavit of the Municipal Council discloses urbanization of the adjacent areas to the tank needs to protect the tank and its water spread area. Therefore, we direct the Revenue Officials in consultation with the Fisheries Department should fix up boundaries by erecting stone pillars as per copy of the map, which is filed along with the report of the Joint Collector, on such erection, should also be forwarded the map to the first respondent-Municipal Council, Nirmal. Whenever applications for conversion of the use of agricultural land into non-agricultural purposes submitted by the pattedars adjacent to the tank bed area with regard to S.Nos.2032, 2034 and before lay-outs are approved by the Council, necessary notice has to be issued by the Municipal Council, Nirmal to the Fisheries Department as well as concerned revenue officials after satisfying itself that the land owners have not encroached into shikam land of Dharmasagar tank, a condition has to be imposed that building waste or any other material shall not be dumped in the tank bed area while sanctioning the lay out, and if any such waste material is dumped into the tank bed area, the lay out sanctioned in their favour will be liable to be cancelled. Periodical inspection has to be made to see that no encroachments will be made over the shikam land of Dharmasagar tank. The first respondent should also see that in the process of constructing houses in the plots, no waste material is dumped into the tank bed area. All the respondents and the adjacent landowners or any other person, who are claiming right under them, are directed to follow the directions in its true spirit. If they have not followed the above directions, they are liable to be proceeded with under the Contempt of Courts Act straightaway, on application, if any, filed by the aggrieved party. The writ petition is accordingly disposed of. No costs. _______________ A.GOPAL REDDY, J. _____________________ B.SESHASAYANA REDDY,J Dt. 08-04-2008 KMR/Murthy