THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE SRI JUSTICE V SURI APPA RAO Writ Petition No.18941 OF 2010 AND 4219 OF 2011 DT.23.3. 2011 WP 18941 OF 2010 Between: Water Users Association, Kallakuri and ors … Petitioner And State of A.P. Rep by its Secretary, Irrigation Dept, Hyderabad and ors … Respondents Counsel for the Petitioner: Sri J PRABHAKAR Counsel for respondent: G P for Irrigation & G P for Home The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE SRI JUSTICE V SURI APPA RAO Writ Petition No.18941 OF 2010 AND 4219 OF 2011 COMMON ORDER : (Per Sri V Eswaraiah,J) Since common questions arise for consideration in these two writ petitions, they are taken up together for disposal by this common order. W.P. No. 18941 of 2010 is filed by Water Users’ Association, Kallakuru and others to declare the action of the respondents 2 to 4 in not taking any action for safeguarding the property admeasuring about 80 cents in R.S.No. 433 Elurupadu (Yelurupadu) village, Kalla Mandal of Narsapur Revenue division and under the Undi Sub Division (PWD Irrigation), West Godavari district as illegal and for a consequential direction to respondents 1 to 7 to safeguard the same free from encroachments. W.P. No. 4219 of 2011 is filed questioning the inaction of the respondents in restraining the 4th respondent and his henchmen in making unauthorised construction of Church in Government (Irrigation) Poramboke land to an extent of Ac.0.31 ¼ cents in R.S. No. 433, Elurupadu village, Kalla Mandal, West Godavari district as illegal and consequently to direct the 4th respondent not to make further constructions in the disputed site. The undisputed facts are that the third respondent/ Executive Engineer, Irrigation Department, Godavari Western Division, Nidadavolu Mandal, West Godavari district vide proceedings No.E/GW/NDD/CB/1C.2/17/9M dated 31.12.2008 accorded permission to one Mr.Datla Rama Raju/ 8th respondent herein to enjoy the usufruct of gross by division for the Fasli 1481 to 1420 (3 years subject to the following conditions; “1.. The department is at liberty for cancellation of the lease now accorded at any time without assigning any reasons there of subject to necessity of the land as and when required and due to any public violation. 2.. The lease now permitted in favour of the lessee should not be sub leased to any other, and at the time of inspection by this department authorities, the enjoyment should be in absolute possession of the applicant only, and any deviation is found, this department is empowered to cancel the lease. 3.. The lessee should pay an amount of Rs.165/- per year promptly duly obtained the D.D. in favour of Pay and Accounts Officer, Drainage Schemes (Irrigation wing) Eluru, West Godavari district without fail, otherwise the lease can be cancelled.” While so, the writ petitioners and other villagers, noticed that 8th respondent in violation of the terms of lease granted vide proceedings dated 31.12.2008, alienated the subject property in favour of one Mr.Mohd.Ismail/9th respondent herein, who in turn making arrangements for construction of a church therein. Since the subject land belongs to Irrigation Department and lease was granted to 8th respondent only to use the usufruct of gross subject to certain conditions and in violation of which the land being alienated to 9th respondent, to safeguard the said government land, the petitioners herein brought the illegality committed by respondents Nos. 8 and 9 to the notice of the Executive Engineer, Irrigation Department, Godavari Western Division, Nidadavolu Mandal, West Godavari /third respondent and also made complaints on various dates. The grievance of the petitioners is that unless the subject lands are free from encroachments, it would be difficult for free flow of water and ensure a canalized flow and for optimum use of water during floods and or drought. Since no tangible action is taken, the present writ petition is filed. The Tahsildar/5th respondent filed a counter on his behalf and also on behalf of the District Collector/2nd respondent stating that on 2.8.2010 the Sub Inspector of Police, Kalla Police station furnished information to the Sub Divisional Executive Magistrate and Revenue Divisional Officer, Narsapur that a complaint was received from the Assistant Engineer, Irrigation Section, Undi stating that lease in respect of Irrigation Poramboke land in R.S.No. 433 was granted to one Datla Ramaraju from time to time, the last renewal being on 31.12.2008 renewed the lease upto 30.6.2011 and that the lease holder sold the land admeasuring Ac.0.31 ½ cents to one Mohammad Ismail who started construction of church. It is further stated that the Sub Inspector of Police, Kalla Police Station based on the complaint, registered Crime No. 88 of 2010 dated 1.8.2010 under Section 147, 427 read with section 34 of IPC. That as per the instructions of Revenue Divisional Officer, he has caused an enquiry and satisfied that the dispute is likely to cause breach of peace in and around the subject area and local limits and issued orders under section 145 (1) of Criminal Procedure Code in M.C. No. 15 of 2010 dated 5.8.2010 directing both the parties to appear before him on 10.8.2010 with respective claims and connected documents. While so, said Mohammad Ismail /Vice President of Jesus Christ Prayer Fellowship has filed a suit for perpetual injunction in O.S. No. 324 of 2010 before the Senior Civil Judge, Bhimavaram and the same is pending and no interim orders were granted. It is thus contended that the official respondents 1 to 7 have taken all the efforts in the interest of safeguarding the public property. The 8th respondent filed a counter affidavit, inter-alia stating that an extent of 0.50 cents of land in R.S. No. 433 of Irrigation poramboke at Elurupadu village besides the V & E canal bund is in his possession since 1954 with the permission of Irrigation Department and that he is paying the necessary taxes and lease amount and lease is being granted in his favour by the third respondent from time to time and the same is still subsisting. While so, one Mudundi Thrimurthulu Raju and his wife Smt M Parvathi filed a suit in O.S No. 57 of 2010 against him for permanent injunction in respect of land to an extent of Ac.0.20 cents out of leased land of Ac.0.50 cents with false averments. That the third respondent issued proceedings dated 10.8.2010 canceling the lease granted in his favour and directed him to hand over the possession of the property, for which he has submitted his explanation dated 20.8.2010 requesting to permit him to continue till the expiry of lease period. Subsequently, proceedings were issued by the Assistant Engineer directing him to vacate the land and that he has submitted a representation dated 8.9.2010 to relieve him from the said land. It is also stated that the Mandal Executive Magistrate, Kalla has initiated proceedings under Section 145 (1) of Criminal Procedure Code directing him and others not to enter the land in question till the disposal of the case. It is thus contended that he has never permitted any person on the said land nor alienated the same to the 9th respondent. The 9th respondent/Mohammad Ismail also filed a counter affidavit stating that the subject canal leads from Akiveedu to Elurupadu villages and bund of canal is called as Venkayya Vayyeru Canal bund and a portion of bund is formed with single track road providing access to Akiveedu and that there is open land ranging from Ac.0.50 cents to Ac.2.00 cents where 14 temples and 3 churches were constructed in the past. He further stated that he has constructed one church with thatched roof about 15 years ago in the said place and since the rood was dilapidated, he replaced the same with water proof cloth over pillars and iron roof frame and at that time the 8th respondent offered to sell the said site claiming to be absolute owner of the same and then the church which is commonly called ‘Jesus Christ Prayer Fellowship’ and registered under the A.P. Societies Registration Act, 2001 has purchased an extent of Ac.0.31 ¼ cents under possessory agreement of sale dated 31.3.2010. It is further stated that the society has filed a suit in O.S. No. 5118 of 2010 on the file of the Senior Civil Judge, Bheemavaram against the Deputy Executive Engineer, Irrigation Department, Undi Mandal, West Godavari District/4th respondent and the Tahsildar, Kalla Mandal, West Godavari district/5th respondent herein seeking permanent injunction and the same is pending. Though Mohammed Ismail/9th respondent who happens to be the Vice President of the ‘Jesus Christ Prayer Fellowship’ is made as party respondent in the writ proceedings, the petitioners have also filed an interlocutory application in W P M P No. 26892 of 2010 seeking to implead the ‘Jesus Christ Prayer Fellowship’ A society registered under the Societies Act, XXXV of 2001 rep by its Secretary, as respondent No.10 and the said WPMP is ordered today. Now coming to the second writ petition in W P No. 4219 of 2011 filed by Viswa Hindu Parishad, Vijayawada, it is stated that Datta Ramaraju/8th respondent in W P 18941 of 2010 took the poramboke land on lease from the Assistant Engineer, Irrigation Section, Undi, West Godavari District, out of which Mohammed Ismail/4th respondent ( 9th respondent in W P No. 18941 of 2010) is in possession of an extent of Ac.0.31 ¼ cents in R S No. 433 of Irrigation Poramboke at Elurupadu village, Kalla Mandal, West Godavari district and bent upon construction of a church therein unauthorisedly. Then some of the villagers of Elurupadu village took objection for the same and made complaints to the Tahsildar, who took the assistance of second respondent /Sub Inspector of Police, Kalla Police Station, Kalla Mandal, West Godavari district to maintain status quo over the subject site and later the Mandal Executive Magistrate, Kalla issued prohibitive order in M.C.No. 15 of 2010 dated 4.2.2011 under section 145 (1) of Criminal Procedure Code restraining all the parties not to enter the disputed site till final decision is made thereto. It is alleged that in spite of the prohibitive orders dated 4.2.2011 the 4th respondent herein /Mohammed Ismail made foundations for constructions of the church and aggrieved thereby a representation dated 18.2.2011 is filed before the Tahsildar/5th respondent and that no action is taken, hence the present writ petition to declare the inaction of the official respondents in restraining the 4th respondent and his henchmen in making unauthorised construction of church in Government (Irrigation) Poramboke land as illegal and without jurisdiction and consequently direct the 4th respondent not to make further constructions at disputed site. Heard Mr J Prabhakar, learned counsel appearing for the writ petitioners in W.P. 18941 of 2010 and Mr.C.C.S.Sastry, learned counsel for petitioner in W.P.No.4119 of 2011, learned Government Pleader for Home, learned Government Pleader for Irrigation and Command Area Development and learned Government Pleader for Revenue. Admittedly, the so called vendor of 9th respondent i.e. 8th respondent Mr.Datla Rama Raju himself stated in his counter affidavit that lease in respect of land admeasuring of Ac.0.50 cents of land in R.S No. 433 of Irrigation poramboke is being granted to him from time to time for a period of three years and that he is regularly paying the lease amount and taxes and that the present lease is subsisting upto 30.6.2011. According to 8th respondent, the lease in question was cancelled and later he filed representation dated 8.9.2010 to relieve him from the said lands from the date of such representation. Therefore the 8th respondent /lessee is not claiming any lease hold rights or any other right whatsoever. It is also pertinent to note that the terms of lease granted in favour of 8th respondent/lessee which were renewed vide proceedings dated.31.12.2008 for the Fasli 1418 to Fasli 1420 i.e., for three years ending as on 30.6.2011, in clear terms prohibit transfer of property. The lease conditions prohibit the lessee from sub leasing or alienating the subject land in any manner, therefore the 8th respondent/lessee has no right or authority to transfer the said land in favour of third party, i.e., the 9th respondent. In fact, the 8th respondent/lessee, himself has no right or authority to alienate the subject land, as such, the 9th respondent who stated to have purchased an extent of Ac.0.33 ¼ cents of land, as well do not have any right, title or interest over the said property. It is to be noted that even the leasehold rights are not alienable, leave alone, the possessory or ownership rights. Therefore, the 9th respondent has no legal and enforceable right or interest over the subject property and he is only an encroacher of the Irrigation poramboke land and it is well settled that encroachers cannot be permitted or allowed to make any constructions whatsoever. There is no doubt that the subject land is Irrigation poramboke and the lease granted in favour of the 8th respondent is cancelled and he himself relieved from the subject land, therefore, the 9th respondent is not entitled to claim any right or authority to be in possession or for construction of any structure. For the foregoing reasons, we are of the opinion that the Irrigation poramboke land in R S No. 433, Yelurupadu village, Kalla mandal, Narsapur Revenue Division, West Godavari district, is requires to be protected in the interest of public at large. Hence, the writ petitions are allowed and the official respondents are directed to prevent Mr.Mohd.Ismail/ 9th respondent and Jesus Christ Prayer Fellowship/impleaded respondent No.10 in W P No.18941 of 2010 from making any illegal constructions in the subject Irrigation poramboke land and the official respondents are directed to take appropriate steps in accordance with law to protect the subject Irregation poramboke land from unauthorised occupations. No costs. _____________ V ESWARAIAH,J ________________ V SURI APPA RAO,J DATE: 23.3.2011 TVK THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE SRI JUSTICE V SURI APPA RAO Writ Petition No.18941 OF 2010 AND 4219 OF 2011 DT.23.3. 2011