HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION Nos. 8947 of 2008, 9136, 9322, 9338, 9610 9903, 10758, 10944 and 18897 OF 2011 . DATED 20th July, 2012 BETWEEN Smt. M.Bharathi and anr …….Petitioners in WP.No.8947 of 2008 A.Srinivas …….Petitioner in WP.No. 9136 of 2012 Smt. Ratnamm …..Petitioner in WP.No. 9322 of 2012 P.V.Krishna Rao and anr …..Petitioners in WP.No. 9338 of 2012 Smt.G.Ganga Bhavani and ors ……Petitioners in WP.No. 9610 of 2012 B.Gairaiah Chary …..Petitioner in WP.No. 9903 of 2012 Smt.B.Jyothi ……Petitioner in WP.No. 10758 of 2012 M.Seeta Ramreddy and ors ……Petitioners in WP.No.10944 of 2012 V.V.Sadasiva Prasad …..Petitioner in WP.No. 18897 of 2012 And The Greater Hyderabad Municipal Corporation, Rep. by its Deputy Commissioner, Uppal Circle, Hyderabad and ors ……Respondents in WP.No. 8947 of 2008 The Government of AP, rep. by its Principal Secretary, Revenue Department, Secretariat, Hyderabad, and ors ……..Respondents in WP Nos. 9136, 18897, 9338, 10758, 9903, 9322, 10944 and 9610 of 2012, and 8947 of 2008. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION Nos. 8947 of 2008, 9136, 9322, 9338, 9610 9903, 10758, 10944 and 18897 OF 2011 *************** COMMON ORDER: Inasmuch as the issue involved in this batch of writ petitions ( except in Writ Petition No. 8947 of 2008) is one and the same, they are heard together and being disposed of by this common order. All these Writ Petitions (except Writ Petition No. 8947 of 2008) have been filed questioning the action of the respondents in interfering with the petitioners’ peaceful possession and enjoyment of their respective plots comprised in Sy.Nos. 42, 43 and 44 of Ramanthapur village in Uppal Mandal, Ranga Reddy District and fencing the said land without following the due process of law and without invoking provisions of the Land Acquisition of Act. The petitioners in all these Writ Petitions claim to be the absolute owners and possessors of their respective plots comprised in the aforesaid survey numbers, having been purchased under the registered sale deeds. In the affidavits accompanying the Writ Petitions, it is stated that earlier when the respondents sought to interfere with their peaceful possession of the subject plots, some of the petitioners approached this Court by way of Writ Petitions and this Court while disposing of these Writ Petitions directed the respondents to follow the due process of law before if any action was contemplated against the plots of the petitioners. It is further stated that as the respondents refused to receive the applications of the petitioners seeking building permission in respect of their respective plots in the aforesaid survey numbers, the petitioners again had to approach this Court by way of Writ Petitions, which were disposed of directing the respondent authorities to consider the same after obtaining undertaking from them. Now in the batch of Writ Petitions, the common grievance of the petitioners is that without issuing any prior notice and following the due process of law, the respondents have fenced the land covering their plots in the aforesaid survey numbers. It is their further grievance that there is every likelihood of thereat and danger and chance of using force and machinery to occupy their property and dispossess them illegally and in due course of the same the plots have been illegally covered by way of fencing the land. Separate counter affidavits were filed on behalf of the District Collector, Ranga Reddy District and the Tahsildar, Uppal Mandal stating alike that the joint survey conducted during the year 2009 revealed that the part of the land in the aforementioned survey numbers falls in Peddacheruvu and part in FTL (Full Tank Level). It is stated that pursuant to the orders of the Division Bench of this Court in Writ Petition No. 30067 of 2011, dated 9.2.2012 the respondent authorities have taken up the fencing work of Ramanthapur Pedda Cheruvu on war-foot basis. A separate common counter affidavit is filed on behalf of the Greater Hyderabad Municipal Corporation, represented by its Commissioner and the Deputy Commissioner, Uppal Circle, Greater Hyderabad Municipal Corporation, Hyderabad, stating that the officials of Irrigation, Revenue and Survey Departments have jointly inspected the Ramanthapur Pedda Cheruvu on 21.2.2009 and fixed the FTL pillars to the said tank. It is stated that in due obedience of the orders of the Division Bench of this Court in Writ Petition No. 30067 of 2011, dated 9.2.2012, the respondent authorities have evicted the encroachers and removed the encroachments in the FTL area on 23.11.2011. Pursuant to the said order, Rs.19.90 lakhs has been sanctioned for providing Chain Link Fencing to the said tank by calling for the tenders and GI pipes on bund side of the said tank were erected and while the said work is still in progress, these Writ Petitions were filed. It is stated that in the FTL area, there is no approved layouts and that the petitioners and others have fabricated sale deeds in respect of the lands in the aforementioned survey numbers and trying to encroach the FTL area of the said Tank. It is further stated that the aforesaid fencing work has been taken up by the respondent authorities as per the orders of the Division Bench of this Court in Writ Petition No. 30067 of 2011, dated 9.2.2012 for conservation, protection and beautification of the Ramanthapur Pedda Cheruvu. The petitioners have filed reply affidavits to the counter affidavits filed by the respondents mainly stating that the landed property of the petitioners has not been covered by Full Tank Level and as the land owned by the petitioners is a private patta land, the respondents have no power to interfere with their peaceful possession and enjoyment under the guise of FTL without putting them on prior notice in regard thereto. It is further stated that the respondents have no jurisdiction or authority to fence the landed property of the petitioners as per the orders of the Division Bench of this Court in Writ petition No. 30067 of 201, dated 09.02.2012 merely because they were not made as parties to the said Writ petition nor was any adjudication done in respect of the landed property of the petitioners. Heard both sides. Perused the record scrupulously. The learned Counsel for the petitioners mainly submitted that the plots held by their clients in the lands situated in the subject survey numbers were their private patta lands of their predecessors- in-title and they were never treated as part of FTL area of the tank. It is further stated that once their predecessors-in-title held private pattas in respect of such lands and that such rights were reflected in the various revenue records, the respondent authorities without issuing any prior notice and affording an opportunity of being heard to the petitioners, high handedly are fencing the land covering the respective plots of the petitioners in the subject survey numbers which is nothing but violation of principles of natural justice and fundamental rights and protection guaranteed under Articles 14, 21 read with 300-A of the Constitution of India. He submitted that the land in the aforesaid survey numbers is a patta land and fencing around the said land would tantamount to illegally taking away of the landed property of the petitioners without invoking the provisions of the Land Acquisition Act. He argued that even before conducting the so-called joint survey by the concerned authorities, neither they issued prior notice nor informed any one of the petitioners in this regard. He contended that the orders passed by the Division Bench of this Court in Writ Petition No. 30067 of 2011, dated 9.2.2012 were not within the knowledge of the petitioners at any point of time since they were not parties to the said Writ Petition and therefore the orders passed therein are not binding on the petitioners. He finally asserts that the action of the respondent authorities is in flagrant violation of the doctrine of audi alterm partem. Per contra, the learned Government Pleader for Revenue and the learned Standing Counsel for GHMC, while reiterating their respective counter affidavit averments submitted that since a part of the ploted land of the petitioners falls within Full Tank Level (FTL) of Ramanthapur Peddacheruvu, though it is their private patta land, they cannot change the nature of the land and it can only be used for other purposes without making any constructions thereon. It is further submitted that pursuant to the orders of the Division Bench of this Court in Writ petition No. 300067 of 2011, dated 9.2.2012, action is initiated on war-footing basis for conservation, protection and beautification of the Ramanthapur Pedda Cheruvu besides to safeguard from encroachments. Ramanthapur Lake, popularly known as ‘Ramanthapur Pedda Cheruvu’, is situated in Sy.Nos. 42,43 and 44 of Ramanthapur Khalsa village, Uppal Mandal, Ranga Reddy District, abutting the National High Way leading from Hyderabad to Warangal. In the said Lake, the Ac. 7.08 gts, Ac.9.22 gts and Ac.0.36 gts in Sy.Nos. 42, 43 and 44 respectively is covered by FTL (Full Tank Level) area. As the subject matter relates to protection of lakes, it is pertinent to mention here that the material resources of the community like forests, tanks, ponds, hillock, mountain etc., are nature’s bounty which would maintain delicate ecoligical balance and as such they need to be protected for proper and healthy environment which enable the people to enjoy a quality of life. In catena of decisions, the Apex Court as well as High Courts have emphasized the need to preserve the tanks. In T.N. Godavaraman Thirumulpad vs. Union of India {(2008)2 SCC 222} the Apex Court once again highlighted the importance of preservation of natural lakes and in particular those which are protected under the Wild Life (Protection) Act, 1972. It was noticed therein that whereas natural water storage resources are not only required to be protected but also steps are required to be taken for restoring the same if it has fallen in disuse. Therein it was also held that the same principle, in the opinion of their Lordships, cannot be applied in relation to artificial tanks. In Water Users Association, Cuddapah Vs. the Government of A.P., rep., by its Principal Secretary, Rural Development, Hyderabad and Ors, it was held by this Court that the life of a water body is not 100 years to commensurate with normal life span of a man. The water body plays an important role in the ecology and environment, besides having its economic purpose of providing water for irrigation and drinking purposes. Any use of land, which does not satisfy the principle of sustainable development, would be detrimental to a water body. In Ramakrishna Rao Vs. The Chairman, HUDA {2001 (5) ALD 299}, a Division Bench of this Court held: “Protection of the environment is not only the duty of the citizens but also the obligation of the State and its all other organs including the Courts. The enjoyment of life and its attainment and fulfillment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature's gift without which life cannot be enjoyed fruitfully. The slow poisoning of the atmosphere caused by the environmental pollution and spoliation should be regarded as amounting to violation of Article 21 of the Constitution of India. The legitimate duty of the Courts as the enforcing organs of the constitutional objectives to forbid all actions of the State and the citizens from upsetting the ecological and environmental balance. It is trite to state that hygienic environment is an integral facet of the right to healthy life and it would not be possible to live with human dignity without a humane and healthy environment.” In Patanjali v. A.P.P.C.B.6, a Division Bench of this Court held: “Protection of lakes of national importance from pollution, ecology, encroachment etc., should be the primary concern of the State. In the context of rapid globalisation and the eminent threat it posed to environment, ecology vis-a-vis the rights of the citizens to have pollution free environment, the right to water etc., recognized by the Apex Court under Article 21 of the Constitution of India, the duty of the Government to protect the lakes has assumed much more importance. It is now well settled principle of law that Directive Principles of State Policy under Part IV of the Constitution are enforceable under Article 21of the Constitution of India. Under Article 48-A of the Constitution, the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country... At the same time, it shall be the fundamental duty of every citizen of India under Article 51-A(g) of the Constitution of India, to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” Turning to the case on hand, though the land in the said Lake is classified as patta land as per revenue records, it is stated that a part of the same falls in FTL area as detailed supra. As laid down in the decisions referred to supra, the Government as well as the public in general are duty bound to protect the FTL area for maintaining ecological balance ultimately in the interest of public at large. It is the case of the petitioners that the land covered by their plots in the said survey numbers is classified as private patta land and that the revenue records maintained by the respondent authorities in respect of the aforesaid land reveals that it is a dry land and covered by residential plots. On the other hand, the respondents stated that the land covered by the plots of the petitioners is though classified as patta land, but a part of the same on ground falls in Peddacheruvu and part in FTL area. In view of the above, the issue that arise for consideration is whether the land covered by the plots of the petitioners is in fact within the alleged FTL area of the said Tank. It is rather difficult for this Court to probe into the said issue while exercising extra-ordinary jurisdiction of this Court under Article 226 of the Constitution. This is purely a question of fact, which cannot be gone into in these Writ Petitions. The adjudication of the said issue is based on the examination of the original records relating to the tank, the location of the land of the petitioners and the limits that are fixed by the authorities. On the directions issued by a Division Bench of this Court in Writ Petition No. 30067 of 2011, on 9.2.2012 the respondent authorities inspected, measured and fixed the FTL pillars and have undertaken fencing work. They have also furnished the particulars of the extents of FTL area and the particulars of the extents of FTL area subjected by encroachments. It emerges from the counter affidavits of the respondents that the lands of the petitioners or any of them, wholly or in part, are outside the FTL area. If the petitioners are aggrieved therefor, they have to avail the remedy of filing a suit as provided for under the A.P. Survey and Boundaries Act, and in such an event, the competent Civil Court based on the evidence that may be adduced by the parties would record a finding as to whether the land covered by the plots of the petitioners would fall with in the FLT area of the said lake. Or else they can assail the validity of the aforesaid order of the Division Bench by taking recourse to law by impleading themselves as parties with the permission of the Court, if they are so advised. It is to be noticed that if the patta land falls under the Full Tank Level area, owners of such land continue to hold title and possession, but they may not be entitled to make constructions thereon and it can only be used for other purpose without making any constructions. A reference in that regard can be made to the order of this Court in Contempt Case No. 1592 of 2011 etc., which were in fact allowed to be filed by the petitioners herein when the respondents contrary to the orders of this Court were trying to dispossess the petitioners from the subject plots without following the due process of law. The provisions of the A.P.(T.A.) Irrigation Act 1357 prohibits that the lands within the FTL are not permitted to be used in the manner detrimental to the safety and existence of the tanks. Pattas if any granted can be put to limited use. Thus the owners of the land falling within the FTL area of the tank are not entitled to construct houses. Perhaps, observing the delicate ecological balance of the said tank is being badly affected by construction activities etc., and it need to be protected for a proper and healthy environment from indiscriminate onslaught, an environmentalist wrote a letter to the Honourable the Chief Justice of this Court, which was treated as a Taken Up Writ Petition No. 30067 of 2011, wherein the following order was passed on 2.2.2012. “……..We therefore feel that the Government , GHMC, HMDA, Lake Protection Committee and all other authorities entrusted with the duty to protect the lakes and environment may come forward with a time bound programme in this regard. As a first step, all the lakes shall be protected irrespective of the fact whether the concerned department has fixed full tank level (FTL) or not, and fence the lakes properly. Necessary steps shall be taken by the Revenue and Police Officials to prevent any construction in any lake or within the distance as may be decided or already decided by the authorities. The GHMC shall withhold granting of permissions to any construction residential / commercial / institutional / official constructions; even if such applications are made to them until further orders. Post on 9.2.2012 to enable the Government, GHMC and HMDA to place before this Court the time bound schedule of programme for protecting the lakes. Anylapse on the part of any official to comply with this order shall be viewed seriously” The said Writ Petition was posted on 9.2.2012 and on that day, the Division Bench observed as follows: “ In obedience to the orders of this Court dated 2.2.2012, the second respondent-the Principal Secretary to Government in Municipal Administration & Urban Development Department, Government of AP., has filed a counter affidavit. It is submitted therein that Durgam Cheruvu, Khajagunta Cheruvu, Kukatpalli, Banda Cheruvu, Malkajigiri, have been fenced with chain link mesh and GHMC will take up work of fencing of 50 lakes, which are prone for encroachment of priority basis and the Government would require six months’ time in so far as other balance of tanks out of 501 lakes ( 176 lakes within the jurisdiction of GHMC). In so far as Ramanchapur Pedda Cheruvu which is subject matter of taken up case is concerned, no time bound schedule of programme for conserving, maintenance (including fencing) and protecting the lake has been mentioned. The Commissioner of GHMC (Respondent No.3) filed separate Counter. The time bound schedule of programme is very conspicuous by its absence in the entire counter affidavit except bringing to the notice of this Court certain past events and action taken by GHMC. The HMDA has filed a separate action plan and it is also silent as to the action proposed to be taken by Lake Protection Committee except stating in para 14 thereof that a plan has been prepared for 325 lakes in the erstwhile HUDA. In view of the above, we direct the GHMC to come forward ‘with action taken report’ after completing fencing of Ramanthapur Pedda Cheruvu without further waiting for any formalities. Indeed, HMDA has annexed a status report in so far as Ramanthapur Pedda Cheruvu is concerned. As per this, the FTL Pillers were fixed at least by 20.4.2010 and therefore, there would not be any difficulty for taking up fencing work immediately. A week’s time is granted to complete the work and submit report. Call this case on 16.2.2012.” Pursuant to the aforesaid orders of the Division Bench of this Court only, the respondent authorities have undertaken the work of fencing the lake on war-footing basis. It is stated that the aforesaid Writ Petition is pending adjudication and if any of the petitioners herein are aggrieved of the action of the respondents in fencing their plots which was undertaken pursuant to the aforesaid orders, it is always left open to them to get impleaded in the aforesaid Writ Petition and assail that part of action by which the petitioners are aggrieved. It is brought to the notice of this Court that the similarly situated plot owners in the aforesaid survey numbers filed impleadment petition in the aforesaid pending Writ Petition seeking to implead them as respondents 7 to 41. However, as the respondent authorities have already been directed by the Division Bench of this Court through the aforesaid orders to complete the fencing work without further waiting for any formalities, as per the FTL limits fixed during the joint survey conducted by the officials of the Irrigation, Revenue and Survey Departments, the respondent authorities have undertaken the work to complete in a time bound manner to duly comply the directions of the Division Bench. Having due regard to the fact that the said Writ Petition, namely, W.P.No.30067 of 2011, is pending consideration before a Division Bench of this Court and in the light of the discussion made herein above, the contentions of the petitioners merits no consideration and the same cannot be countenanced in these Writ Petitions. However, as stated hereinabove, it is open to the petitioners either to get impleaded in the said Writ Petition or approach the competent Civil Court in this regard, if they are so advised. For the foregoing reasons, I do not find any merit in these Writ Petitions, which are liable to be dismissed. The Writ Petitions are accordingly dismissed. The miscellaneous petitions, if any pending, shall also stand dismissed in consequence. There shall be no order as to costs. WRIT PETITION No. 8947 OF 2008: In this Writ Petition, the petitioners assailed the action of the respondent authorities in not granting construction permission pursuant to their building applications on the ground that their plots would fall in the submergence of the Full Tank Area of Pedda Cheruvu in Ramanthapur village. It is the case of the petitioner that similarly situated persons who have plots in the subject survey numbers have approached this Court by way of Writ Petition No. 16397 of 2004 and batch and this Court disposed of those Writ Petition directing the respondent authorities therein to receive and consider their applications subject to giving an undertaking that the constructions that may be undertaken by them would be at their own risk and they would not claim compensation for the building or for the other eventualities in case of risk or acquisition for preserving the land for full tank level. The present Writ Petition is pending adjudication before this Court from the year 2008. It appears that the petitioners have not deligently pursued the matter in the proper perspective. However, a Division Bench of this Court in Writ Petition No. 30067 of 2011, which was filed with a view to protect the subject tank, inter alia directed the respondent-GHMC authorities by its order dated 2.2.2012 to take necessary steps to prevent any construction in any lake or within the distance as may be decided or already decided by the authorities and further, to withhold granting of permissions to any construction, residential / commercial / institutional/ official constructions, even if such applications are made to them until further orders. Since the subject plots of the petitioners are situated in the Survey Nos. 42,43 and 44 of Ramanthapur Village, wherein the subject lake is situated and Writ Petition No. 30067 of 2011 which pertains to said lake is still pending adjudication, this Court is not inclined to pass similar orders as were passed in Writ Petition No. 16397 of 2004 and batch. For