Mohammed Azeemuddin Khan vs The State Of Telangana
2025 Latest Caselaw 3192 Tel

Telangana High Court

Mohammed Azeemuddin Khan vs The State Of Telangana on 19 March, 2025

            HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

      WRIT PETITION Nos.15678 of 2022 and 30653 of 2024

COMMON ORDER:

The issue involved in both the writ petitions is intrinsically

interconnected and therefore, they are taken up and heard together

and are being disposed of by this common order.

2. W.P.No.15678 of 2022 is filed seeking the following relief:

"...to issue a Writ most appropriately a Writ of Mandamus declaring the impugned Notice No.D/365/2020, dated 14/03/2022 issued by respondent No.4 in respect of petitioners property bearing Nos.329/1, 329/2 and 329/3 situated at Attapur Village, Rajendra Nagar Mandal, Ranga Reddy District, T.S. admeasuring 6 acres 10 gts., as illegal, void, ultra virus and unconstitutional in the interest of justice...

3. W.P.No.30653 of 2024 is filed seeking the following relief:

"...to issue a Writ, Order or Direction more particularly one in the nature of a Writ of Mandamus declaring the action on the part of the respondent No.2 in not considering the representation dated 20.08.2024 made by the petitioner herein for conducting appropriate and in-depth enquiry regarding the illegal and unauthorized construction made by the unofficial respondents herein on the land belongs to FTL /Buffer Zone Land of Mir Alam Tank in Sy.Nos.293, 329/1, 329/2, 329/3 to an extent of Acres 6.10 gts., situated at Pahadi Mir Mahmood Sahab, Attapur Village, Rajendranagar Mandal, Ranga Reddy District, Telangana and thereby to demolish the same as unjust, arbitrary, capricious and also in only violation of principles of natural justice, consequently direction may be given to the respondents to consider the same at the earliest and to pass..."

4. Considered the submissions of learned counsel for the

respective parties and perused the record.

5. For the sake of convenience, W.P.No.15678 of 2022 is taken up

as leading case to decide the lis in these two cases.

6. The case of the petitioners in W.P.No.15678 of 2022 is that

they are the owners and possessors of the property to an extent of

Ac.6-10 gts in Sy.No.3296/1, 329/2 and 329/3 situated at Attapur

Village, Rajendrangar Mandal, having purchased vide sale deed

bearing document No.8213/1993 dated 12.08.1993. It is their case

that claiming the said property as Waqf property, Writ Petition (Public

Interest Litigation) No.286/2020 was filed on the file of this Court

and in pursuance of the orders passed in the said WP (PIL), without

identifying the encroachments on the waqf land, the respondent

No.4-Tahsildar treating the land of the petitioners as Full Tank Level

(FTL) of Miralam Tank has issued the impugned Notice

No.D/365/2020 dated 14.03.2022 under the provisions of the

Telangana Water, Land and Trees Act, 2002 (for short, "WALTA Act").

It is also case of the petitioners that their names have been recorded

in Dharani Portal as pattadars in Sy.Nos.329/2 and 329/3 and in

view of conflicting entries in the revenue records and the waqf records

and in the absence of conducting survey, the respondent No.4 is not

having any power under the provisions of WALTA Act, to issue notice

for removal of the encroachments.

7. The W.P.No.30653 of 2024 is filed by a resident of the locality

claiming himself as social activist, stating that the respondents in the

writ petition are allowing illegal encroachments over the FTL/buffer

zone of Miralam Tank in Sy.Nos.293, 329/1, 329/2 and 329/3 to an

extent of Ac.6-10 gts situated at Pahadi-Mir-Mahmood-Saheb Attapur

Village (subject property of W.P.No.15678 of 2022). It is the case of

the petitioner that the Miralam Tank is a registered Irrigation tank

under the provisions of Hyderabad Irrigation Act, 1357 Fasli and in

terms of the orders passed in WP (PIL) No.286/2020, a joint survey

has been conducted and even after identifying the encroachments

over the subject land, same were not removed and the said action is

causing disusal of the tank and the feeder channels to the tank do

not have any direct source of surface water from the nearby localities

and thereby the water storage level is reduced in the tank and

causing severe ground water problems in the inhabitants of the

locality.

8. Mr. Mohd. Qureshi, learned Senior Counsel appearing for the

petitioners in W.P.No.15678 of 2022 has submitted that the property

in Sy.Nos.293, 329/1, 329/2 and 329/3 situated at Attapur Village,

Rajendranagar Mandal, belongs to the petitioners as they have

purchased the same under registered sale deeds and the waqf board

without proper verification of the records, has addressed letter vide

No.93/RR/PROT/GEN/2022 dated 09.03.2022 stating that the said

property is notified as waqf property as per Gazette No.6A dated

09.02.1999 in the name of Dargah Hazrat Mir Mohd Saheb and joint

survey conducted in terms of the orders passed in WP (PIL)

No.286/2020, no notice was issued to the petitioners and the said

joint inspection survey is not binding on the petitioners. It is further

submitted that any survey conducted by the joint inspection, does

not take away any existing rights nor it creates any rights and even if

it is found that the petitioners are not having any valid title, the

respondents cannot evict the petitioners without following due

process of law. It is further submitted that as per the provisions of

the Wakf Act, 1955, the waqf board is the competent authority for

removal of encroachments and said powers cannot be delegated to

the Tahsildar and as such, the Tahsildar is not having power or

jurisdiction to invoke the provisions of WALTA Act, 2002 for removal

of the encroachments.

9. Mr.Mohd.Imtiyazuddin, learned counsel for the petitioners in

W.P.No.30653 of 2024 submitted that the property in Sy.Nos.293,

329/1, 329/2, 329/3 to an extent of Ac.6-10 gts is covered by

Miralam Tank (water pond). It is further submitted that the

petitioners in W.P.No.15678 of 2022 by creating forged and fabricated

documents are trying to encroach upon the FTL of the tanks and as it

is evident from the joint inspection dated 23.08.2021 conducted in

terms of the orders passed by the Division Bench of this Court in WP

(PIL) No.286/2020, the lands referred above are in encroachment of

various persons and the respondents with a malafide intention are

not protecting the communal property. It is also submitted by the

learned counsel that as per Section 24 of the Telangana Land

Revenue Act, 1317 Fasli, all rivers, streams, tanks, ponds, canals,

lakes are vested in the State and the persons disputing the nature of

the land or vesting of the said property have to establish their rights

by approaching the competent Civil Court. It is further contended

that Section 3 of the Telangana Irrigation Act, 1357 Fasli defines

"irrigation work" which includes, (i) all kuntas, reservoirs, tanks,

anicuts, canals, their distributaries, channels and sluices

constructed, maintained or controlled are properties of the

Government.

10. Sri Kowturu Pavan Kumar, learned Standing Counsel for

respondent No.2 in W.P.No.30653 of 2024 has submitted in W.P.(PIL)

No.286 of 2020, WP No.24260 of 2008 and batch and W.P.No.23829

of 1987, this Court specifically directed to take appropriate steps for

erecting fence and for removal encroachments of lakes/tanks. In

compliance with the said directions, joint inspection team consisting

of irrigation and revenue officials have conducted inspection and

submitted a report on 23.08.2021. It is further submitted that as per

the said report, the lands in Sy.No.293, an extent of Ac.3-14 gts, and

in Sy.No.329/1, 329/2 and 329/3, an extent of Ac.2-36 gts, are

under encroachment and covered by Guest House with compound

wall, falling in FTL/buffer zone of Miralam Tank and a notice was

also issued to the petitioners in W.P.No.15678/2022, who failed to

submit any reply duly enclosing the documents in support of their

claim.

11. The State with a laudable object constituted HYDRAA vide

G.O.Ms.No.99, Municipal Administration and Urban Development

(GHMC.I) Department, dated 19.07.2024 for implementation of

various provisions under the provisions of the Telangana Land

Revenue Act, 1317 Fasli, the Hyderabad Metropolitan Development

Authority Act, 2008, the Greater Hyderabad Municipal Corporation

Act, 1955, of the Telangana Irrigation Act, 1357 Fasli and the WALTA

Act, 2002 for removal of encroachments from the tanks or tank beds

or rivers or river beds or from the water bodies situated in the State

of Telangana. The constitution of HYDRAA was upheld by a

Judgment passed by this Court in batch of cases and the same has

attained finality.

12. Section 3(a) of the Act, 1357 Fasli, defines "irrigation work",

which includes the following:

"(a) "irrigation works" include,-

(i) all kuntas, reservoirs, tanks, anicuts, canals, their distributaries, channels and sluices constructed, maintained or controlled wholly or partly by or with the consent of the Government for the supply, conveyance or storage of water;

(ii) all construction works, embankments, structures, supply and escape channels, connected with the aforesaid water reservoirs, tanks, anicuts, canals, and their distributaries, pipes and sluices and all roads constructed for the purpose of facilitating the construction or maintenance of the said water reservoirs, tanks, anicuts, canals, distributaries, and their channels, pipes and sluices;

(iii) all drainage works and flood embankments;

(iv) any part of a river, stream, lake, natural water reservoir or drainage channel, to which the Government may apply the provisions of section 6 or the water of which has been used before the commencement of this Act for the purposes of any existing irrigation work;

(v) all lands appropriated by the Government for the purposes of water reservoirs, tanks, anicuts, canals and their distributaries, pipes and sluices and all buildings, machinery, fences, gates and other erections on such lands;

(vi) all pumping sets which are owned or constructed or maintained or controlled wholly or partly by the Government and not handed over to any person. "

13. The Hon'ble Supreme Court in Jagpal Singh vs. State of

Punjab and others 1 held as follows:

"Para 23: Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorised occupants of the Gram Sabha/Gram Panchayat/poramboke/shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show-cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. Regularisation should only be permitted in exceptional cases e.g. where

(2011)11 SCC 396

lease has been granted under some government notification to landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."

14. In Hinch Lal Tiwari v. Kamala Devi 2, the Hon'ble Apex Court

observed as follows:

Para 13: It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites."

15. In Intellectuals Forum v. State of Andhra Pradesh 3 , the

Hon'ble Apex Court observed as follows:

"88. However, some of the environmental activists, as noted in The Environmental Activities Handbook authored by Gayatri Singh, Kerban Ankleswaria and Colins Gonsalves, that the Judges are carried away by the money spent on projects and that mega projects, that harm the environment, are not condemned. However, this criticism seems to be baseless since in Virender Gaur v. State of Haryana [(1995) 2 SCC 577] this Court insisted on the demolition of structure which have been constructed on the lands reserved for common purposes and that this Court did not allow its decision to be frustrated by the actions of a party. This Court followed the said decision in several cases issuing directions and ensuring its enforcement by nothing short of demolition or restoration of status quo ante. The fact that crores of rupees were spent already on development projects did not convince this Court while being in a zeal to jealously safeguarding the environment and in preventing the abuse of the environment by a group of humans or the authorities under the State for that matter.

91: It is true that the tank is a communal property and the State authorities are trustees to hold and manage such properties for the

(2001) 6 SCC 496

(2006) 3 SCC 549

benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body."

16. There is no dispute that the subject lands are covered by the

Miralam Tank and if they form part of FTL, tank beds, buffer zone,

fall within the definition under Section 3 (a) of the Act, 1357 Fasli, as

irrigation work, the irrigation officers or the revenue officers are

competent for removal of the encroachment irrespective of any

objections being made by the persons in possession of the said lands.

The only grievance of the petitioners in W.P.No.15678 of 2022 is that

instead of issuing the proceedings by the waqf board, which is the

competent authority, the impugned notice issued by the Tahsildar

invoking the powers of WALTA Act, is without jurisdiction. As seen

from the material placed on record, no notice was issued to the

petitioners by the joint inspection team and in view of dispute with

regard to classification and nature of lands, ends of justice would be

met the impugned notice No.D/365/2020 dated 14.03.2022 issued

by the respondent No.4-Tahsildar, is set aside.

17. For the aforesaid reasons, the impugned notice vide

Proceedings No.D/365/2020 dated 14.03.2022 issued by the

Tahsildar is set aside. The officials of Irrigation department, Revenue

Department, Municipal Authorities and HYDRAA are directed to

conduct joint inspection of the subject properties in Sy.Nos. 293,

329/1, 329/2, 329/3, Pahadi Mir Mahmood Sahab, Attapur Village,

Rajendranagar Mandal, Ranga Reddy District, after issuing notice to

the waqf board as well as the petitioners and considering the

objections, if any, with regard to notifying the properties as waqf

properties and claim of the petitioners as pattadars, and if it is found

in the survey that the property is notified as waqf, the waqf

authorities shall remove the encroachments of the Miralam Tank by

following the guidelines issued by the Hon'ble Apex Court in Re:

Directions in the matter of demolition of structures 4 and

Rajendra Kumar Barjatya And Another vs. U.P. Avas Evam Vikas

Parishad and others 5. Otherwise, if it is found that the subject land

is a tank land as defined under the provisions of the Irrigation Act,

1357 Fasli, the authorities are directed to remove the encroachments.

If necessary, the police authorities are directed to extend security to

the Officers of the Irrigation, Revenue, HYDRAA, and Municipal

departments for implementation of the above directions and for

protection of the subject tank. It is needless to observe that if right

and title of the petitioners in W.P.No.15678 of 2022 and their lands

within FTL/buffer zone is disputed/denied by the concerned official

respondents, the petitioners are at liberty to approach the competent

Civil Court and seek appropriate relief, in accordance with law.

18. Accordingly, both the writ petitions are disposed of.

2024 SCC OnLine SC 3291

Civil Appeal No. 14604 of 2024 dated 17.12.2024

As a sequel, the miscellaneous petitions pending, if any, shall

stand closed. No costs.

_________________________________ JUSTICE C.V.BHASKAR REDDY Date: 19.03.2025 EDS