THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.27740 OF 2008 AND WRIT PETITION No.5756 OF 2009 Date: 07.09.2009 In WRIT PETITION No.27740 OF 2008 Between: Kilaru Maha Laxmi and another … Petitioners And The Vijayawada Muniipal Corporation, Rep., by its Commissioner, Vijayawada, Krishna District. … Respondents In WRIT PETITION No.5756 OF 2009 Between: M.V.Ranga Rao and 3 others. … Petitioners And The Vijayawada Muniipal Corporation, Rep., by its Commissioner, Vijayawada, Krishna District and another. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.27740 OF 2008 AND WRIT PETITION No.5756 OF 2009 COMMON ORDER : The petitioners in W.P.No.27740 of 2008 claim to be the absolute owners of Ac.1-00 of land each situated in Sy.Nos. 359/3 & 359/1 respectively of Gunadala Village (presently known as Currency Nagar) of Vijayawada. This writ petition is filed aggrieved by the alleged action of the rsepondents – Vijayawada Municipal Corporation – in trespassing into the land of the petitioners and attempting to lay a cement concrete open drainage of 8 mts. width without following due process of law as arbitrary and illegal. The petitioners in W.P.No.5756 of 2009 claim to be the absolute owners of House bearing Door Nos.48-11-5-11, 48-11/5-11, 48-11/5-9B and Flat No.G2 of Hiranmayee Apartments, Door No.48-11-7-8, Currency Nagar, Vijayawada. They are also aggrieved by the alleged action of the Vijayawada Municipal Corporation in constructing open drain of 20 feet width in Currency Nagar area without folloiwng due process of law. Since common questions of fact and law arise for consideration, these two writ petitions are heard together and decided by this common order. It is alleged by the petitioners in both the writ petitions that the staff of the respondent Corporation had high-handedly trespassed into their land and started digging across the land for the purpose of laying cement concrete drainage of 8 mts. (24 feet) width and 6 feet depth. It is contended that the said action of the respondent Corporation is not in accordance with law and by virtue of the proposed construction of the drainage, more than one-fourth of the land belonging to the petitioners would be affected resulting in huge loss and hardship to the petitioners. That apart, there is every chance of demolition of the existing structures and ingress and egress of the petitioners’ houses will also be totally blocked. Separate counter-affidavits have been filed on behalf of the Corporation stating that the Corporation proposed the construction of drain with 20 feet width and 6 feet depth in Currency Nagar area to connect from Vijayanagar Colony to Gunta Tippa drain area at a length of 3.6 kms. The said drain is being constructed under JNNURM Scheme. It is also explained that a detailed report for the construction of the said drain along with designs and plans was submitted and same were scrutinized and approved by the project sanctioning authority. It is also stated that the drain is proposed to be constructed along 60 feet wide road portion site left by the petitioners. The said portion is also earmarked as a road while selling a portion of the site as house plots. Since the proposed drain is not covered by any land or building as contemplated under Section 293 of the Hyderabad Municipal Corporations Act, 1955 (for short, ‘HMC Act, 1955’), the question of issuing notice or payment of compensation does not arise. It is also alleged that the petitioners had unauthorizedly converted their land into a layout and sold away the plots and their plea in the writ petitions that the said land is an agricultural land is absolutely false. It is also pleaded that this drain is being constructed to drain out the storm water from the catchment areas covering 580 hectares. The total length of drain is 3.2 kms. and it has already been completed upto 2.64 kms. It is a major outfall drain which is essential to drain out the storm water for the benefit of 40,000 to 50,000 population living in the area getting submerged in rain water for days together causing health hazards. It is also explained that the design of the drain is such that it will not allow any seepage/leakage of the drain water to the surrounding areas as the walls are constructed with concrete mix and the bed has been constructed with 3 layers. The work was grounded during March, 2008 on upstream side and so far 80% of the work has already been completed. The execution of the drain work is strictly in accordance with the sanctioned plan and there is no deviation at all. No damage has been caused to the private properties or buildings of the petitioners in any manner whatsoever. I have heard the learned counsel for both the parties. Section 293 of the Hyderabad Municipal Corporations Act, 1955, which is made applicable to the Vijayawada Municipal Corporation runs as under : “293. Powers for making drain:-- (1) The Commissioner may carry any municipal drain through, across or under any street, or any place laid out as or intended for a street, or under any cellar or vault which may be under any street, and after giving reasonable notice in writing to the owner or occupier, into, through or under any land whatsoever within the city or, for the purpose of outfall or distribution of sewage, without the city. (2) The Commissioner may enter upon and construct any new drain in the place of an existing drain in any land where in any municipal drain has been already lawfully constructed or repaired or altered any municipal drain so constructed. (3) In the exercise of any power under this section, as little, damage as can be, shall be done, and compensation shall be paid by the Commissioner to any person who sustains damage by the exercise of such power. “ As could be seen, the Commissioner is competent to carry any municipal drain across or under any street after giving reasonable notice in writing to the owner or occupier. It is made clear that in exercise of the said power, as little, damage as can be, shall be done, and compensation shall be paid by the Commissioner to any person who sustains damage by the exercise of such power. However, it is contended on behalf of the Corporation that the said provision has no application at all since only that portion of the site which is earmarked as a road is being utilized by the Corporation. It is a disputed question of fact which cannot be enquired into and decided by this court in exercise of writ jurisdiction under Article 226 of the Constitution of India. At any rate, having regard to the undisputed fact that there was no opportunity to the petitioners to make their representation before commencing the work in question in their lands, without expressing any opinion as to the rival claims made by the parties with regard to the nature of the land in question and the site sought to be utilized for the construction of the proposed drain, I deem it appropriate to dispose of the writ petitions permitting the petitioners herein to submit their objections against the construction of the drainage in question within a period of four weeks from today to the Commissioner, Vijayawada Municipal Corporation. If any such objections are raised within the time specified above, the Commissioner shall consider the same and pass appropriate orders after calling for a factual report from a responsible officer. Such exercise shall be completed as expeditiously as possible preferably within a period of four weeks from the date of receipt of objections from the petitioners. Till such time, status quo obtaining as on today in all respects shall be maintained. Both the Writ Petitions are accordingly disposed of. No costs. _____________ G. ROHINI, J. Dt. 07.09.2009 gbs