THE HONOURABLE SRI JUSTICE P.S.NARAYANA WEDNESDAY, THE NINETEENTH AUGUST, TWO THOUSAND AND NINE WRIT PETITION No. 17123 OF 2009 Between: Sagiraju Ranga Raju and Others. …Petitioners A N D The District Collector (Panchayat Wing), West Godavari District, Eluru and others …Respondents THE HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No. 11850 OF 2009 ORDER This Court issued rule nisi on 19-6-2009. 7th Respondent filed counter affidavit. The matter is coming under the caption for interlocutory, but at the request of the counsel on record, the writ petition is being disposed of finally. 2. Sri K. Satyanarayana Murthy, learned counsel appearing for the petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition and also prior orders made by this Court and would maintain that in the facts stated the writ petition is to be allowed. 3. Learned Additional Government Pleader for Panchayath Raj would point out to the order made in Writ Petition No. 828 of 2003 by this Court and also further would point out that the order made by the District Panchayath Officer, West Godavari District, dated 7-5-2009 and would maintain that in the light of the same, the Panchayath Secretary may be directed to take further steps in this regard in the light of those directions. 4. Sri Prasad, learned counsel representing 8th Respondent would contend that the present writ petition had been filed only with a view to further delay in providing the drainage facility. Learned counsel would also maintain that having received the deposit delaying the matter in such a fashion definitely cannot sustained. Learned counsel would also maintain that in the light of facts and circumstances, if the issue is further delayed, it is just and proper to direct the Grampanchayat to pay the interest on the amount which had been deposited. 5. Heard the counsel. 6. The writ petition is filed for writ of mandamus with the following prayers: a) Declare the action of the Respondents No. 6 and 7 in taking steps for construction of drainage at Bommarajuvari Street without obtaining resolution of the Gram Panchayat or approval of the Grama Sabha as per the Proceedings No. 635/2009-A 3 (P), dated 7-5-2009 of the 2nd Respondent is arbitrary, illegal, discriminatory and violative of Article 4 and 21 of the Constitution of India and also violative of Procedure laid down as per Gram Panchayat Act and ; b) consequently direct the respondents not to take any steps for construction of drainage till the resolution passed by the Gram Panchayat/Gram Sabha and also by obtaining permission and estimated cost of the out let from the Divisional Engineer ( Irrigation and Drains) and only after the total cost is deposited by the Respondent No.8 and pass such other and further order or orders as this Hon’ble Court may deem fit and proper in the circumstances”. 7. 1st Petitioner has sworn to the affidavit filed in support of the writ petition, it is stated that all the petitioners belong to Arthavaram village and resident of Bommirajuvari Street of Arthavaram Gram Panchayat. The writ Petitioners are challenging the action of the Respondents 6 and 7 in taking steps for construction of drainage at Bommarajuvari street without obtaining resolution of the Gram Panchayat or approval of the Grama Sabha as per the Proceedings No. 635/2009-A 3(P),dated 7-5-2009 of the 2nd respondent is arbitrary, illegal, discriminatory and violative of Article 14 and 21 of the Constitution of India and also violative of Procedure laid down as per Gram Panchayat Act. 8. It is also stated that Arthavaram village is a minor Gram Panchayat consisting of 3,800 population. Out of the above mentioned population of Gram Panchayat voters are about 2,440 only. It is further stated that all the residents of the village are mainly depending upon agricultural income for eking their livelihood. The majority of the village population belongs to Kshatriyas community. The villagers maintained their own toilets by keeping sanitation in the village without causing inconvenience to their neighbours and most of the villagers are maintaining soak pits. It is stated that as the width of internal roads of Gram Panchayat having 6 to 8 feet only. Some of the internal roads are about 6 feet only. All village roads are connected to R & B main road. 9. Further it is stated that the income of the Gram Panchayat is about Rs. 2.0 lakhs i.e. collection from water cess, house tax including income derived from auction of grass, fish tanks, etc. The Gram Panchayat is maintaining certain contingent staff like, sweeper, electrician, tank watcher, Pump Operator, for maintenance of street lights, sanitation and to supply drinking water to the villagers apart from Part Time Junior Assistant-cum-Bill Collector for which the Gram Panchayat is incurring expenditure to maintain staff of the Gram Panchayat. 10. It is also further averred that Sri Sagiraju Sita Rama Raju (R-8) a resident of Bommarajuvari street, Arthavaram village who contested for the Sarpanch post in the Panchayat Elections and defeated in the elections. As such he developed rivalry against the villagers as well as the residents of Bommarajuvari street with a view to create nuisance by leaving water used in his house on the road without maintaining any soak pit in his house. It is stated that due to grudge against Sri S.Trinadha Raju and other members of the village the Respondent No.8 made representation to the Panchayat Raj department to provide drainage to his street though there is a no necessity with a view to create nuisance at Bommarajuvari Street. On the basis of resolution of the Panchayat dated 12-8-2003 the department had directed the Assistant Engineer to submit the feasibility report to the department. As per the instructions of the department, the Assistant Engineer conducted survey and informed the Panchayat Secretary that there is no feasibility or necessity for providing drainage in Bommarajuvari street. The Assistant Engineer ( R.W.S.) mentioned in his report that since the road width is 6 feet and there is no out let system existing in the village and majority of the villagers are maintaining soak pits and majority of the residents of Bommarajuvari Street are not interested for drainage facility as they are having soak pits. 11. It is stated that Respondent No.8 kept silent all these years, but for the reasons best known to him he filed a Writ Petition without mentioning the correct fact before this Court. This Court was pleased to dispose of the writ petition on 25-11-2008 with the following direction:- “Having heard the learned counsel for the petitioners as well as the respondents and keeping in view the willingness expressed by the first petitioner to bear the entire expenditure for construction of drainage I deem it appropriate to dispose of the writ petition with a direction to the District Panchayat Officer, Eluru to make a proper enquiry personally or through an authorized senior officer into the dispute between the petitioners and the Gram Panchayat and pass appropriate orders for construction of the drainage in the street in question keeping in view the undertaking given by the 1st petitioner to bear the expenditure for constructions of the drainage. Such exercise shall be completed after hearing the petitioners as well as the Gram Panchayat as expeditiously as possible preferably within a period of three months from the date of receipt of a copy of the order”. 12. It is also stated that in pursuance of the observation made by this Court, the District Panchayat Officer has instructed the Divisional Panchayat Officer to conduct an enquiry and submit report. In turn the Extension Officer (Panchayat Raj and Rural Development) has submitted a report to the District Panchayat Officer by stating that he has issued notices to 24 residents of Bommirajuvari Street. For that 20 residents have attended the enquiry. Out of the 20 residents, 17 have represented that they are not interested for providing drainage in the street in view of maintenance of soak pits by them. They informed that if the drainage is constructed they may be put to lot of inconvenience since there is no out let for connecting the drainage and also if the drainage is provided on both sides, the existing road about 6 feet would be further reduced to 4 feet which is not suitable for their street people as there is a regular movement of cattle and vehicles and there are chances that the cattle may fell into the drain and their legs may be damaged and the drainage may likely to be collapsed. Apart from this there is no outlet system and thereby the water will be stagnated and further the residents may be unable to live due to bad smell of the used water and caused to develop mosquitoes and flies. 13. It is further stated that taking into consideration of the report submitted by the extension Officer (PR & RD) Ganapavaram, the 2nd respondent has issued Proceedings vide Rc. No. 635/2009-A3 (P) dated 7-5-2009 by issuing certain instructions to the Divisional Panchayat Officer, Eluru, Assistant Engineer RWS Ganapavaram and the Panchayat Secretary, Arthavaram, West Godavari District. It is further stated that surprisingly without taking into consideration of the report submitted by the extension Officer (PR & RD) the 2nd respondent has issued the proceedings with some guidelines and directed to take necessary action for construction of drainage because of the political pressure extracted by the unofficial respondent through the local M.L.A. 14. Further it is stated that 2nd respondent had directed the Panchayat Secretary for construction of drainage without obtaining estimate and report from the Divisional Engineer ( Irrigation and Drains) about the estimated cost to provide out let system for the entire village. It is needless to mention here that no drainage system existing in the village. It is only on the pressure extracted by the unofficial respondent, the Respondents 6 and 7 are taking steps for construction of drainage to the Bommarajuvari Street though majority of the residents of the said street are not willing for construction of drainage. It is stated that there is no public interest is involved in construction of drainage except the private interest of the unofficial respondent. It is stated that though the unofficial respondent is having site to maintain soak pit in his house, instead of maintaining soak pit, with a view to harass the residents of that particular street, he used to leave his used water on the village road. If the drainage is constructed the petitioners have to face lot of sanitation problems as there is no out let. Unless the Gram Panchayat provide drainage with out let by obtaining the Technical sanction and grant from the Panchayat Raj Department, it is not possible to provide out let. 15. It is averred that it is needless to mention that if the Grampanchayat is willing to make construction of drainage, they have to provide under ground drainage and also direct the Respondent No.8 to deposit the cost towards construction of drainage including out let after obtaining permission and estimated cost from the Divisional Engineer ( Irrigation & Drains). Then only the Gram Panchayat can take steps for construction and also only after receipt of the total expenditure of outlet and drainage from Respondent No.8. In the above said circumstances, the writ petition had been filed praying the relief stated supra. 16. 7th Respondent filed counter affidavit. In para 2 of the counter affidavit, it is stated that there is no drainage system provided by the Gram Panchayat in the village. However, in the year 2003 the 8th respondent approached this Court by way of filing W.P.No. 828 of 2003 seeking a direction to provide drainage channel on the side of the cement road situated at Bommiraju Vari Street. However, on the undertaking given by the 8th respondent that the entire cost for laying the drainage line be bare by him, this Court directed the Gram Panchayat to lay the drainage line as expeditiously as possible. In pursuance of the directions of this Court in the above W.P. which has became final, the District Panchayat Officer vide his proceedings Rc.No. 635/2009/A3, dated 7-5-2009 directed the Gram Panchayat to lay the drainage line subject to condition of depositing Rs.1,90,000/- by the 8th respondent with the Gram Panchayat which is the estimated cost prepared by the Asst. Engineer, RWS. Accordingly, the 8th respondent deposited the entire amount to the General funds of the Gram Panchayat. In pursuance of the proceedings of the District Panchayat Officer, an urgent meeting of the Gram Panchayat was called for on 23-7-2009 and in the said meeting majority members resolved to implement the orders of this Court by laying the drainage line in Bommiraju Vri Street and however, one ward member descended the same. Questioning the proposed action, the present writ petition is filed. 17. Further it is stated that Grampanchayat passed resolution on 23-7-2009 to implement the orders of this Court by laying the drainage line and also the proceedings of the District Panchayat Officer dated 7- 5-2009. The writ petitioners without challenging the earlier orders of this Court and the consequential orders of the District Panchayat Officer, filed the present writ petition questioning the consequential proposed action of the Gram Panchayat. Therefore, the writ petition is liable to be dismissed on this ground alone. As admitted by the writ petitioners there is a specific direction from this Court to lay a drainage line in Bommiraju Vari Street which has became final. 18. Further it is a fact that the District Panchayat Officer conducted an enquiry through the Divisional Officer and on the basis of the enquiry report and the estimated costs prepared by the concerned Asst. Engineer, directed the Gram Panchayat to lay the drainage line in implementation of the orders of this Court. It is absolutely false to say that there is no space for providing drainage line along the road margin. Space is available to lay the drainage line along road margin and no inconvenience is caused to anybody if the drainage line is provided. 19. The relevant portion of the order in the writ petition No.828 of 2003 reads as hereunder:- “Having heard the learned counsel for the petitioners as well as the respondents and keeping in view the willingness expressed by the 1st petitioner to bear the entire expenditure for construction of drainage I deem it appropriate to dispose of the writ petition with a direction to the District Panchayat Officer, Eluru to make a proper enquiry either personally or through an authorized senior officer into the dispute between the petitioners and the Gram Panchayat and pass appropriate orders for construction of the drainage in the street in question keeping in view the undertaking given by the first petitioner to bear the expenditure for construction of the drainage. Such exercise shall be completed after hearing the petitioners as well as the Gram Panchayat as expeditiously as possible preferably within a period of three months from the date of receipt of a copy of this Order. The writ petition is accordingly disposed of. No costs.” 20. The order made by the District Panchayat Officer, West Godavari, dated 7-5-2009 had been relied on and the said order is reads as here under:- “Proceedings of the District Panchayat Officer, West Godavari:;Eluru Present: Sri V.Nagarjuna Sagar, M.Sc., Rc.No.635/2009-A3 (Pts) Date 7-5-2009 Sub:Order of the Hon’ble High Court of A.P.in W.P.No. 828 of 2003 for construction of drainage in Arthavaram Gram Panchayat – Ganapavaram Mandal – Enquiry Report – Orders Issued – Reg. Ref: 1. Order dated 25-11-2008 of the Hon’ble High Court Of A.P. 2. This office Proceedings Rc.No. 635/2009 A3 (Pts) dated 19-2-2009. 3. V.P.R.No. 159/2009 A1 (Pts) dated 25-4-2009 of the Divisional Panchayat Officer, Eluru. ***** Hon’ble High Court of A.P. ordered in W.P.No. 828/2003 for construction of permanent drainage in Bommarajuvari Street of Arthavaram Gram Panchayat, Ganapavaram Mandal as the petitioners of the writ petition have agreed to bear the expenditure of construction of drainage. Hence, after due enquiry necessary orders have been issued. On this subject the Divisional Panchayat Officer, Eluru was asked vide reference 2nd cited above for enquire into the matter, under 3rd reference three the same has been submitted. Assistant Engineer (R.W.S.) Ganapavaram has prepared an estimate for Rs.1,90,000/- for drainage construction and on observation of the orders of the Hon’ble High Court petitioners have agreed to bear the expenditure for construction of drainage. On the subject it was explained that the Gram Panchayat has resolved that 30% of expenditure will be borne from people contributions. Divisional Panchayat Officer in his report has explained that now also the drainage construction expenditure will be borne by the villagers. In view of the above and also by taking the circumstances into consideration, it was approved that construction of drainage in Bommarajuvari Street of Arthavaram village, Ganapavaram Mandal on the following terms and conditions:- 1. Estimates are to be prepared by the Mandal Engineer for construction of drainage along with out let for drainage water and rain water without stagnating anywhere. 2. Petitioners and the residents of the said village have agreed to stated above the drainage construction estimated amount shall be deposited within one month to the Gram Panchayat and within the stipulated period if the amount is not deposited to the Gram Panchayat, the petitioners have also to make their own arrangements like others. 3. Mandal Development Officer, Assistant Engineer ( R.W.S.) and Panchayat Secretary, shall form a committee to take up the work, complete it duly obtaining technical sanction departmentally, maintain record and make payments. 4. To obtain prior approval from the Divisional Engineer, Irrigation and Drainage Division for construction of out let before construction of drainage. 5. The amounts deposited for construction of this drainage shall not be utilized otherwise. Sub-Treasury Officer, Tadepalligudem is requested to honour the cheques for withdrawal of amounts for construction of drainage only from the amounts deposited by the petitioners. Panhayat Secretary, Gram Panchayat, Arthavaram is instructed to intimate the action taken on this account will be intimated to this office. Sd/o V. Nagarjuna Sagar District Panchayat Officer, West Godavari, Eluru” 21. Section 45 of A.P. Panchayat Raj Act also had been relied upon and referred to by the learned counsel representing 8th Respondent. 22. In the said proceedings referred to above, the Panchayat Secretary, Grampanchayat, Arthavaram was instructed to intimate the action taken on this aspect to the said office. It appears the said order had been made in the light of the view expressed by this Court in W.P.No. 828 of 2003. In the light of the same, this Court is of the considered opinion that this writ petition be disposed of with a direction to the 7th respondent to take further steps in the light of the proceedings of the District Panchayath Officer, West Godavari, Eluru, the 2nd respondent herein in the proceedings Rc.No.635/2009-A3(Pts), dated 7-5-2009 at an early date. 23. Accordingly, this writ petition is disposed of. No order as to costs. ______________________ Justice P.S. Narayana 19th August, 2009. KM THE HONOURABLE SRI JUSTICE P.S.NARAYANA WRIT PETITIN No. 11850 OF 2009 19th August, 2009.