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2022 DIGILAW 1330 (AP)

Onum Sreenu v. State Rep By Principal

2022-11-18

VENKATESWARLU NIMMAGADDA

body2022
ORDER : 1. The present writ petition is filed to declare the construction being made by respondent Nos.7 and 8 on water body, which is a prohibited place, without approval of the 6th respondent-Grampanchayat and the inaction of the 6th respondent in not implementing the resolution No.34 dated 23.06.2021 passed by it for removal of the said construction, as illegal and arbitrary. 2. Heard learned counsel for the petitioners, learned Government Pleader for Panchayat Raj appearing for respondent Nos.1 and 3, Sri I.Koti Reddy, learned Standing Counsel for the 6th respondent-Gram Panchayat, and Sri S. Sridhar, learned counsel for respondent Nos.7 and 8. 3. In nutshell, the case of the petitioners is that the petitioners are the residents of Rolugunta Village and there is a tank called “Yamalamma Banda Tank” on the eastern side as well as a hillock on the western side of the said village. The rain water from the hillock flows through the Government poramboke land situated in Sy.No.259 of the village. There are two vankas/streams for the free flow of the water from the 2 NV,J W.P. hillock. But, some part of rain water from the hillock flows through a drainage canal. The free flow water course after crossing the house of one Pilli Raju takes turn towards North- Eastern side and goes behind the house of one Pilli Govinda, who partly occupied the water course on the South-western side of his house. The water course/stream travels between the houses of Pilli Raju and Pilli Govinda since there is a gap of about 30-35 feet and it is being formed as natural stream/vanka for flow of water from hillock to Yamalamma Banda Tank. So, it is a water body and any kind of constructions on the said site are prohibited. While so, recently respondent Nos.7 and 8 started making construction of a house within the bunds of stream/vanka, which is a water body, without obtaining any permission from the 6th respondent and the said construction would cause obstruction to free flow of water course coming from the hillock and also causing hindrance to the free flow of water into Yamalamma Banda Tank. It is also the case of the petitioners that on 02.06.2021 the petitioners and others submitted representations to the official respondents. It is also the case of the petitioners that on 02.06.2021 the petitioners and others submitted representations to the official respondents. Considering the representations, the 6th respondent issued notice to respondent Nos.7 and 8 on 21.06.2021 requiring them not to make any construction on the water body. In spite of the same, respondent Nos.7 and 8 are proceeding with the illegal construction. Then, the 6th respondent passed a resolution on 23.06.2021 directing the Executive authority to remove the illegal construction being carried out by respondent Nos.7 and 8. Even after issuing the notice dated 21.06.2021 as well as the resolution of the 6th respondent dated 23.06.2021, the Executive authority of the 6th respondent neither initiated action nor removed the illegal constructions being carried out by respondent Nos.7 and 8 within the bunds of water body/natural vanka. Hence the writ petition. 4. By an order dated 12.07.2021, after hearing both sides, while ordering notice before admission, this Court directed respondent Nos.7 and 8 not to proceed with the construction. 5. Respondent Nos.3 and 6 filed separate counter affidavits stating that the 7th respondent was granted possession certificate by the Tahsildar with regard to the site of an extent of 3 cents in Sy.No.259 of Rolugunta Village. Thereafter, without obtaining permission from the 6th respondent, the 7th respondent commenced construction of a RCC building at the said site. After receipt of said information, the 6th respondent passed a resolution on 23.06.2021 whereunder the 6th respondent took a decision for initiation of action. Pursuant to the same, the 3rd respondent issued a notice dated 21.06.2021 to the 7th respondent directing her to stop the construction of the building. Subsequently, the 7th respondent made an application dated 25.06.2021 seeking building permission and the same was rejected by the 6th respondent on 12.07.2021. The 7th respondent stopped construction of the building. As of now, no construction is being carried out by the petitioner. 6. The 5th respondent also filed a counter affidavit wherein it is stated that the subject land in Sy.No.259-1A is classified as hill poramboke, which is an extent of Acs.226.28 cents, according to the diglot of Rolugunta village. The Government made a layout for some part of the land for the purpose of allotting house sites to the houseless poor. In the said layout, plot No.25 was allotted to the 7th respondent. The Government made a layout for some part of the land for the purpose of allotting house sites to the houseless poor. In the said layout, plot No.25 was allotted to the 7th respondent. The rain water from the said hillock flows into Yamalamma Tank through the drainage canal which was constructed in front of the said layout and adjoining to plot No.25 of respondent No.7. During enquiry made by the Mandal Revenue Inspector, Rolugunta, it is revealed that the 7th respondent constructed a house on a part of the drainage canal illegally without the permission of the Grampanchayat. Thereby, the Panchayat Secretary issued a notice to the 7th respondent to remove the illegal construction made on drainage canal and he has to take action against the 7th respondent and to see it that there is no hindrance to the free flow of water from hillock into Yamalamma tank. 7. The 7th respondent filed a counter affidavit stating that the drainage canal is passing between her house and the main road and to enter into the subject property, she has to cross the drainage and then enter into the subject property. In order to avoid clogging of the drainage canal, she constructed a culvert at her own cost and she never did anything to stop the free flow of water course and on the other hand she made a provision for free flow of water. The site where the 7th respondent is making construction does not fall within the definition of water body in between the bunds as alleged. More so, the site on which she is making construction was granted by the revenue authorities by way of a possession patta under G.O.Ms.No.546 dated 30.06.1997. The writ petition is filed out of political equations/vengeance. There are no merits in the writ petition and the same is liable to be dismissed. 8. A perusal of the revenue record shows that the subject construction is within the notified water body and respondent Nos.7 and 8 did not obtain any permission for such construction from the competent authority. Further, in view of the resolution dated 23.06.2021 and as per Section 121 of the A. P. Panchayat Raj Act, 1994, the Executive authority of the 6th respondent-Grampanchayat is under statutory obligation to remove the illegal construction made by respondent Nos.7 and 8. Further, in view of the resolution dated 23.06.2021 and as per Section 121 of the A. P. Panchayat Raj Act, 1994, the Executive authority of the 6th respondent-Grampanchayat is under statutory obligation to remove the illegal construction made by respondent Nos.7 and 8. In his counter affidavit, the 5th respondent categorically stated that the 7th respondent constructed a house on a part of the drainage canal illegally without obtaining permission from the Panchayat authorities. Moreover, the rain water from the hillock flows into Yamalamma tank through the drainage canal which was constructed in front of the layout and adjoining to plot No.25 of the 7th respondent. As such, she made constructions into the drainage/water flown area. 9. It is settled principle of law that the constructions on water bodies/water courses cannot be allowed, in view of the law laid down by the Hon’ble Apex Court in Intellectuals Forum, Tirupathi Vs. State of A.P. and Others, [ (2006) 3 SCC 549 ], wherein it is held at paragraph Nos.82, 83, 84, 86 and 96 as under: “82. Article 48-A of the Constitution mandates that the State shall endeavour to protect and improve the environment to safeguard the forests and wildlife of the country. Article 51- A of the Constitution enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment and including forests, lakes, rivers, wildlife and to have compassion for living creatures. These two articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these principles in making laws and further these two articles are to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the Constitution including Articles 14, 19 and 21 of the Constitution and also the various laws enacted by Parliament and the State Legislatures. 83. On the other hand, we cannot also shut our eyes that shelter is one of the basic human needs just next to food and clothing. Need for a national housing and habitat policy emerges from the growing requirements of shelter and related infrastructure. 83. On the other hand, we cannot also shut our eyes that shelter is one of the basic human needs just next to food and clothing. Need for a national housing and habitat policy emerges from the growing requirements of shelter and related infrastructure. These requirements are growing in the context of rapid pace of urbanization, increasing migration from rural to urban centres in search of livelihood, mismatch between demand and supply of sites and services at affordable cost and inability of most new and poorer urban settlers to access formal land markets in urban areas due to high costs and their own lower incomes, leading to a nonsustainable situation. This policy intends to promote sustainable development of habitat in the country, with a view to ensure equitable supply of land, shelter and services at affordable prices. 84. The world has reached a level of growth in the 21st century as never before envisaged. While the crisis of economic growth is still on, the key question which often arises and the courts are asked to adjudicate upon is whether economic growth can supersede the concern for environmental protection and whether sustainable development which can be achieved only by way of protecting the environment and conserving the natural resources for the benefit of humanity and future generations could be ignored in the garb of economic growth or compelling human necessity. The growth and development process are terms without any content, without inkling as to the substance of their end results. This inevitably leads us to the conception of growth and development which sustains from one generation to the next in order to secure “our common future”. In pursuit of development, focus has to be on sustainability of development and policies towards that end have to be earnestly formulated and sincerely observed. As Prof, Weiss puts it, “conservation, however, always takes a back seat in times of economic stress”. It is now an accepted social principle that all human beings have a fundamental right to a healthy environment, commensurate with their well-being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that present as well as the future generations are aware of them equally. 86. The judicial wing of the country, more particularly this Court, has laid down a plethora of decisions asserting the need for environmental protection and conservation of natural resources. 86. The judicial wing of the country, more particularly this Court, has laid down a plethora of decisions asserting the need for environmental protection and conservation of natural resources. The environmental protection and conservation of natural resources has been given a status of a fundamental right and brought under Article 21 of the Constitution. This apart, the directive principles of State policy as also the fundamental duties enshrined in Part IV and Part IV-A of the Constitution respectively also stress the need to protect and improve the natural environment including the forests, lakes, rivers and wildlife and to have compassion for living creatures. 96. The appeals are disposed of with the following directions: With regard to Peruru tank (i) No further constructions to be made. (ii) The supply channel of Bodeddulu vanka needs to be cleared and revitalized. A small check dam at Malapalli to be removed to ensure the free flow and supply to the tank.” 10. In Hinch Lal Tiwari Vs. Kamala Devi, [ (2001) 6 SCC 496 ], in paras 12 and 13 of its judgment, the Hon’ble Supreme Court held as under: “12. On this finding, in our view, the High Court ought to have confirmed the order of the Commissioner. However, it proceeded to hold that considering the said report the area of 10 biswas could only be allotted and the remaining five biswas of land which have still the character of a pond, could not be allotted. In our view, it is difficult to sustain the impugned order of the High Court. There is concurrent finding that a pond exists and the area covered by it varies in the rainy season. In such a case no part of it could have been allotted to anybody for construction of house building or any allied purposes. 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. 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.” 11. In Yegireddi Radha Vs. Manal Praja Parishad Development Officer, [(2021) 6 ALT 418 (DB)], in paras 12 and 13 of the judgment, a Division Bench of this Court held thus: “9. It is nobody's case that such conversion had been done before the construction of Village Secretariat Building/Grama Sachivalayam Building, Rythu Bharosa Kendram, Health Sub- Centre/Health and Wellness Centre in Survey No. 50-3 were undertaken. On the other hand, it is contended various constructions i.e., school, veterinary hospital etc., were already standing in Survey No. 50-3 and accordingly, the construction of Village Secretariat Building/Grama Sachivalayam Building, Rythu Bharosa Kendram, Health Sub-Centre/Health and Wellness Centre was undertaken in the said site. We are of the opinion where the land in question is classified as ‘tank’, mere existence of other constructions thereon cannot be a justification to permit new constructions to be made in survey number classified as tank’. Furthermore, no permission to make such construction had been obtained from the appropriate authorities including 3rd respondent herein. Accordingly, we are of the opinion that respondent Nos. 12 and 14 had acted contrary to law in undertaking unauthorised construction of Grama Sachivalayam and other buildings in Survey No. 50-3 which is classified as tank land. 10. The Writ Petition is disposed of directing that the respondents shall desist from continuing further constructions in Survey No. 50-3 of Uddavolu village which is classified as tank land. 12 and 14 had acted contrary to law in undertaking unauthorised construction of Grama Sachivalayam and other buildings in Survey No. 50-3 which is classified as tank land. 10. The Writ Petition is disposed of directing that the respondents shall desist from continuing further constructions in Survey No. 50-3 of Uddavolu village which is classified as tank land. In the event, the respondents choose to shift the site of the buildings from Survey No. 158 of Uddavolu village, it shall be open to the said respondents to approach the 3rd respondent for necessary permission and allotment of any other plot in accordance with law.” 12. The law laid down by the Hon’ble Apex Court is also followed by this Court and upheld the law in a catena of judgments. Therefore, under the present circumstances, this Court has no other option except to follow the same to safeguard the drainage canal in question. However, due to the persistent developmental activities over a long time, much of the natural resources of lakes and tanks were lost, and considered irreparable. This, though regrettable, is beyond the power of this Court to rectify. More so, the alleged house site patta for plot No.25, which is within the water body area, is not permitted in view of the law laid down by the Hon’ble Apex Court. 13. In view of the observations and findings to keep the ecological balance and the principles of preservation of the natural water courses, lakes, canals and other types of water bodies and to achieve the object of Article 58(d) of the Constitution of India, the present writ petition is liable to be allowed. 14. Accordingly, the Writ Petition is allowed and the Executive Authority of the 6th respondent-Grampanchayat is directed to implement resolution No.34 dated 23.06.2021 passed by the Grampanchayat, Rolugunta, for removal of the illegal construction made by respondent Nos.7 and 8 on the water body, within a period of four (4) weeks from the date of receipt of a copy of this order. There shall be no order as to costs. As a sequel, Miscellaneous Petitions pending, if any, shall stand closed.