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2022 DIGILAW 374 (AP)

Potla Venkateswarlu v. State of Andhra Pradesh

2022-04-01

R.RAGHUNANDAN RAO

body2022
JUDGMENT R. Raghunandan Rao, J. - The petitioner is a resident of Thumrukota Gram Panchayat, Rentachintala Mandal, Guntur District. 2. It is the case of the petitioner that the 4th respondent-Thumrukota Gram Panchayat, by a resolution dated 12.11.2021 had granted land admeasuring ac.0.09750 cents in Sy.No.344-B to members of unidentified individuals who belong to the Muslim Minority Community, for construction of a Shadikhana. The petitioner contends that such a grant of land is not permissible as there is a community well in the said land and the well, which serves the water needs of the people in times of drought, cannot be damaged by any construction made in such lands. 3. The 4th respondent has filed a counter affidavit. In this counter affidavit, it is stated that the well mentioned by the petitioner had dried up a long time back and was posing a danger to the cattle and children in the area. Due to which, this well had been filled up earlier with earth with a view to construct a Shadikhana. The 4th respondent also contended that the resolution passed by the Panchayat on 12.11.2021 only accepts the request to construct a Shadikhana and cannot be treated as an allotment of land for the Shadikhana. 4. Sri I.Koti Reddy, learned standing counsel for the 4th respondent-Gram Panchayat submits that a perusal of the resolution would show that there has been no grant of land to anybody and only a general approval of the proposal for construction of a Shadikhana has been given. He would submit that as of now there is no well existing in the land as it has been filled up. He would submit that there are no merits in the case filed by the petitioner and the same requires to be dismissed. 5. Sri K.Indraneel Babu learned counsel, appearing for the petitioner would submit that the resolution while ostensibly, granting permission for construction of a Shadikhana is actually a resolution allotting land for such purpose. He would submit that such an allotment is not permissible. 5. Sri K.Indraneel Babu learned counsel, appearing for the petitioner would submit that the resolution while ostensibly, granting permission for construction of a Shadikhana is actually a resolution allotting land for such purpose. He would submit that such an allotment is not permissible. He would also rely upon the decision of the Hon'ble Supreme Court in the case of Hinch Lal Tiwari vs. Kamala Devi and Others (2001) 6 SCC 496 ., to contend that any water body including a well cannot be used for any other purpose and even if the said water body falls into disuse the same would only have to be revived and restored and no other activity can be taken up in the said land. 6. a perusal of the resolution dated 12.11.2021 would clearly show that it is only a resolution permitting the construction of a Shadikhana. It is neither a resolution allotting any land nor can such an intent be read into that resolution. In the circumstances, the contention of learned counsel for the petitioner to that extent would have to be negatived. The Hon'ble Supreme Court in Hinch Lal Tiwari vs. Kamala Devi and Others was considering the case of water bodies such as lakes, tanks and ponds which are nature's bounty and which cannot be altered or used for other purpose as any such usage could lead to ecological disaster. The finding in the said judgment is that an existing pond was sought to be allotted for construction of house building etc. In the said circumstances, the Hon'ble Supreme Court had observed that such allotments and change of usage of existing natural water bodies and tanks cannot be allotted for other purpose in non-abadi sites. 7. In the present case, the well is situated in a populated area and has fallen in disuse. It is not a natural water body whose closure is going to affect the ecological balance of the area. In the circumstances, the law laid down by the Hon'ble Supreme Court would not be applicable to the present facts of the case. 8. as far as permission for construction of Shadikhana is concerned, this Court would agree with the contention of the learned counsel for the petitioner that a Gram Panchayat resolution accepting a proposal for construction cannot be treated as a permission given under the provisions of the act. 8. as far as permission for construction of Shadikhana is concerned, this Court would agree with the contention of the learned counsel for the petitioner that a Gram Panchayat resolution accepting a proposal for construction cannot be treated as a permission given under the provisions of the act. The Rules governing grant of permissions under the Panchayat Raj act have been issued under G.O.Ms.No.67, (PR & RD) dated 26.02.2002. These rules require any proposed construction to be taken up only after appropriate applications in the prescribed form along with relevant documents are presented to the Gram Panchayat and thereafter, building permission is given in the prescribed form. an informal approval by way of a Gram Panchayat resolution cannot take the place of a permission that is to be given in a prescribed manner under the rules. The informal permission given by the gram panchayath in the above manner cannot be used for constructing a shadikhana. 9. In the circumstances, this writ petition is disposed of leaving it open to the 4th respondent-Gram Panchayat to consider any application filed for construction of a Shadikhana in accordance with the rules and to pass orders on such application in accordance with law. Till then the 4th respondent gram panchayath cannot permit the construction of the shadikhana. 10. There shall be no order as to costs. 11. as a sequel, pending miscellaneous petitions, if any, shall stand closed.