HON'BLE SRI JUSTICE P.S. NARAYANA W.P.No.4303 of 2008 Date : 3-11-2009 Between : Saka Pulla Rao and others .. Petitioners and The District Collector, Panchayat Wing, Eluru, West Godavari District and others .. Respondents HON'BLE SRI JUSTICE P.S. NARAYANA W.P.No.4303 of 2008 ORDER: 1. This Court issued rule nisi on 29-2-2008 and on 11-3-2008 in W.P.M.P.No.5607/2008, this Court granted interim direction as follows: “There shall be interim direction not to shift the construction of overhead tank in Sy.No.78 of Vemuluru Village, Kovvur Mandal, West Godavari District as per the Gram Panchayat Resolution No.90 dated 13-2- 2008”. 2. Respondents 1 and 2 filed W.V.M.P.No.1286/2008 to vacate the said interim order. 3. The 3rd respondent also filed counter affidavit. 4. The 4th respondent was impleaded as per the order made by this Court on 9-4-2008 in W.P.M.P.No.11230/2008. 5. At the request of the Counsel on record Sri Amarendra Kumar, the learned Counsel representing the petitioners, the learned Assistant Government Pleader for Panchayat Raj representing the respondents 1 and 2 and Sri A.V. Sesha Sai, Counsel representing the 3rd respondent and Sri Satyanarayana, representing the Writ Petition itself is being disposed of finally. 6. The Writ Petition is filed for a writ of mandamus declaring the action of the respondents in not completing the overhead tank in R.S.No.78 of Vemuluru village, Kovvur Mandal, West Godavari District as illegal, arbitrary and contrary to the provisions of Gram Panchayat Act and consequently to direct the respondents to complete the said overhead tank as per the resolution of the Gram Panchayat dated 13-2-2008 and pass such other suitable orders. 7. Sri Amarendra Kumar, the learned Counsel representing the writ petitioners had taken this Court through the contents of the affidavit filed in support of the Writ Petition and also further had taken this Court through the Gram Panchayat resolution and further had drawn the attention of this Court to Section 246 of A.P. Panchayat Raj Act, 1994, in short hereinafter referred to as “Act” for the purpose of convenience, and would maintain that in the light of the facts and circumstances, the reliefs prayed for in the Writ Petition to be granted. The learned Counsel also had taken this Court through the contents of the respective counter affidavits and also the reply affidavit and would maintain that unless and until the Government exercises the power under Section 246 of the Act aforesaid, the resolution of the Gram Panchayat to be given effect to. The Counsel also placed reliance on certain decisions. 8. Per contra, the learned Assistant Government Pleader for Panchayat Raj had taken this Court through the contents of the counter affidavit and would maintain that in view of the public interest, in the light of several representations in this regard, such decision had been taken. 9. Sri A.V. Sesha Sai, the learned Counsel representing the 3rd respondent had taken this Court through the contents of the counter affidavit and specifically pointed out to the stand taken in para-4 of the counter affidavit of the 3rd respondent. 10. The learned Counsel representing the 4th respondent also had made certain submissions explaining the stand of the villagers. 11. Heard the Counsel, perused the affidavit filed in support of the Writ Petition, the counter affidavits and the reply affidavit and also the material placed before this Court. 12. The reliefs prayed for in the Writ Petition by the writ petitioners already had been specified above. The 1st writ petitioner had sworn to the affidavit filed in support of the Writ Petition and it is stated that the 1st petitioner was elected as Ward Member 6, the 2nd petitioner was elected as Ward Member 8 and the 3rd petitioner was elected as Ward Member 11 of Vemuluru Gram Panchayat, Kovvur Mandal, West Godavari District and all the petitioners belong to Scheduled Caste community. It is further stated that in Vemuluru Gram Panchayat limits there is a colony of New Harijanapeta for the said colony people and they representing so many times before the officials for providing drinking water to the colony people and hence the Government sanctioned an amount of Rs.9.25 lakhs under the ufnds of Ambedkar Jeevanadhara Padhakam for construction of overhead tank storage capacity of 40,000 Litres. 13. It is also further stated that after allotment of the funds for the construction of overhead tank, the Gram Panchayat entrusted the construction of overhead tank to the 2nd respondent for identification of place and execution of work. On the said request the 2nd respondent conducted field inspection and submitted a proposal stating that the land in R.S.No.78 of Gram Panchayat, Vemuluru is suitable for construction of the overhead tank and storage of water. After verifying the proposals submitted by the 2nd respondent, the Gram Panchayat had passed Resolution No.90 on 13-2-2008 and unanimously accepted the construction of overhead tank in R.S.No.78 of Vemuluru Gram Panchayat for providing protected water supply to the residents of New Harijanapeta of Vemuluru village. After passing of the resolution, the Gram Panchayat started the work of construction of the overhead tank and spent more than Rs.1 lakh by laying basement. 14. It is also further stated that some of the rival groups in the village, with an intention to stop the construction of the overhead tank approached the political people and also the local Minister who directed the District Collector not to proceed with the construction of the overhead tank in R.S.No.78 of Vemuluru village. On such intervention, the District Collector/1st respondent instructed the respondents 2 and 3 not to proceed with the construction of the overhead tank. It is further stated that for the last several years the residents of New Harijana colony had been facing lot of problems due to lack of protected drinking water and during the summer season there would be no water for drinking purpose. Further it is stated that once the Gram Panchayat passed a resolution without cancelling the same the respondents are bound to provide protected drinking water to the residents of the colony. But the 1st respondent, under the influence of the local Minister directed the respondents 2 and 3 not to proceed with the construction of the overhead tank for providing drinking water to the New Harijanpet. Further it is stated that being the elected Ward Members of the Gram Panchayat, the petitioners approached this Court seeking appropriate direction to the respondents to complete the overhead tank and provide protected drinking water to the residents of New Harijanpet before commencement of the summer season. The action of the 1st respondent in instructing the respondents 2 and 3 not to proceed with the construction of the overhead tank in Sy.No.78 of Vemuluru village is highly illegal, arbitrary and contrary to the provisions of the Gram Panchayat Act. If the respondents do not complete the overhead tank for providing drinking water to the residents of the New Harijanapet before the summer, the residents of the locality will suffer irreparable loss and hardship as they face the drinking water problem during the summer season. In such circumstances, the writ petitioners approached this Court praying for appropriate reliefs. 15. A copy of the resolution of the Gram Panchayat also had been placed before this Court. 16. In the counter affidavit filed by the 2nd respondent it is averred that the work of construction of Overhead Service Reservoir was proposed at Vemuluru village, Kovvur Mandal, West Godavari District under Ambedkar Jeevandhara Programme with an estimated cost of Rs.9.25 lakhs vide Memo No.18/DEE3/AJD/2007 dated 19-4-2007 by the Chief Engineer, RWS, Hyderabad and the following items had been proposed in the sanctioned estimate: A. 40000 ltrs. capacity OHSR with 9.55 Mts. staging B. Drilling of Borewell with Rotary to the depth of 90 Mts. C. PVC Pipeline of 360 Mts. length. Further it is stated that for entrusting the said work, tenders were called vide tender notice No.6/HD/2007-08 dated 5-11- 2007 and one B.V. Prasad, Contractor, Kovvur who remained the lowest tenderer had accepted the work @ 19% less than the estimated rates and he was handed over the site situate in R.S.No.78 in Vemuluru village for execution of the said works. The contractor had entered into an agreement with the officials vide No.63/2007-08 dated 4-2-2008. The stipulated time for completion of the work was four months. The site had been marked in R.S.No.78 of Vemuluru village as suggested by the Gram Panchayat. 17. It is also further stated that in the meantime certain villagers of Doraiah Cheruvu colony belonging to Vemuluru village made a representation to the M.L.A. Kovvur to construct the proposed Overhead Service Reservoir at Doraiah Cheruvu and upon receiving the representation by the local M.L.A. the Executive Engineer, RWS, Kovvur had forwarded the same to the District Collector, West Godavari District who had instructed the Revenue Divisional Officer, Kovvur to conduct a joint inspection along with the Executive Engineer in Doraiah Cheruvu colony and submit a report. Accordingly the Revenue Divisional Officer along with the Executive Engineer had inspected the Doraiah Cheruvu and submitted a report Roc.No.247/08(P) dated 26-2-2008 which revealed that in Vemuluru village there are two existing Overhead Service Reservoirs and a third one now proposed under Ambedkar Jeevandhara is not actually in S.C. locality which is about 50 Mts. away from it and the old S.C. habitation had already been provided with water tap connections. The place proposed by the Hon’ble M.L.A. Kovvur had also been inspected which is called as Doraiah Cheruvu colony and actually the same lies between Kovvur and Vemuluru and is about 1.5 K.M. from Vemuluru with around 280 houses out of which 60 families belong to S.C. community. Further it is stated that Doraiah Cheruvu is also connected with water supply from Overhead Service Reservoir from main village and about 12 public connections are there in the colony. Though the said place is also not fully an S.C. locality, keeping in view the fact that the existing Overhead Service Reservoirs are sufficient for the main village it was felt that the third Overhead Service Reservoir can cater to the needs of the residents of Doraiah Cheruvu colony. Further it is stated that Vemuluru is a Indiramma Model Village in Phase I and the land adjacent to the existing colony had been identified and the same is now at the stage of Draft Declaration to provide house sites to about 250 people. 18. Further it is also stated that the Revenue Divisional Officer had identified and recommended Doraiah Cheruvu colony which is mostly an S.C. community inhabiting locality and it is distant from the main village. Further it is stated that the placement orders the Overhead Service Reservoir at Doraiah Cheruvu will be more purposeful and useful where the communal poramboke land is available. It is also further stated that basing on the report submitted by the Revenue Divisional Officer, the District Collector had directed the Executive Engineer, RWS, Kovvur on 10-3-2008 to take necessary action to relocate the construction of the Overhead Service Reservoir basing person which the Executive Engineer, RWS, Kovvur had issued a letter vide Roc No.DB/Ambedkar Jeevandhara/2008 dated 12-3-2008 to one B.V. Prasad, contractor, Kovvur who remained the lowest bidder to execute the works at Doraiah Cheruvu of Vemuluru village. 19. It is also further stated that the contention of the petitioner that the residents of of Vemuluru village will sustain irreparable loss if the Overhead Service Reservoir is not constructed in Vemuluru village is not tenable and the same is baseless as there are two existing Overhead Service Reservoirs in the Vemuluru village and Doraiah Cheruvu is situated far away from the main village and water is supplied through pipelines from Vemuluru village only as there is no existing Overhead Service Reservoir and hence the construction of the Overhead Service Reservoir will be more fruitful and feasible at Doraiah Cheruvu. It is further stated that there is an upcoming housing scheme for Economically Backward People and about 250 house colony is proposed to be constructed by the Government under Indiramma programme. In such circumstances it is stated that in the interest of Vemuluru village and the public the said stand is being taken. 20. The undernoted material papers also had been placed before this Court : (i) Lr.Rc.No.DB/AJD/200, dated 8-3-2008 of Executive Engineer, RWS Division, Kovvur. (ii) Letter dated 23-2-2008 of P.Venkata Krishna Rao (iii) Representation of the villagers of Vemuluru, Kovvur Mandal, W.G. District. (iv) Telegram No.O.R./8’20/A20/Kovvur/8/3/08/240 words issued by Sarpanch, Gram Panchayat, Vemuluru. (v) Lr.Roc.No.DB/Ambedkar Jeevandhara/2008 dated 12-3-2008 of Executive Engineer, RWS Division, Kovvur. (vi) Lr.Roc.No.247/08(P) dated 26-2-2008 of Revenue Divisional Officer, Kovvur. 21. In the counter affidavit filed by the 3rd respondent, several of the facts narrated in the affidavit filed in support of the Writ Petition in a way had been affirmed. 22. In the reply affidavit filed by the writ petitioners several factual details had been reiterated. It is further stated that as per Section 80 of the A.P. Panchayat Raj Act all the public water courses, springs, reservoirs, tanks, cisterns, fountains, wells and other water works shall vest in the Gram Panchayat and hence the Gram Panchayat passed the resolution for providing land in Sy.No.78 of Vemuluru village for construction of the overhead tank. It is further stated that it is true that the residents of Doraiah Cheruvu colony, with an intention to shift the overhead tank from Harijan colony to General colony approached the local M.L.A. and they influenced the Revenue Divisional Officer and got the report in their favour. Even as per the counter affidavit, the 2nd respondent admitted that Doraiah Cheruvu colony is not actually in S.C. colony and the said Scheme is only meant for S.C. colony for providing protected drinking water and hence the shifting of the overhead tank from New Harijan colony to Doraiah Cheruvu is not permissible under law unless the resolution passed by the Gram Panchayat is cancelled by the Government under Section 246 of the A.P. Panchayat Raj. 23. The resolution passed by the Gram Panchayat and also several of the proceedings inclusive of the representations already had been referred to above. 24. Section 246 of the A.P. Panchayat Raj Act dealing with Power to cancel or suspend resolution of a Gram Panchayat, Mandal Parishad or a Zilla Parishad reads as hereunder:- (1) The Government may either suo motu or on a reference made to them by the Executive Officer or Mandal Parishad Development Officer or as the case may be, the Chief Executive Officer, in the manner prescribed by order in writing cancel any resolution passed by a Gram Panchayat, Mandal Parishad or a Zilla Parishad or any Standing Committee of a Zilla Parishad if in their opinion such resolution, (a) is not legally passed; or (b) is in excess or abuse of the powers conferred by or under this Act, or any other law; or (c) on its execution is likely to cause danger to human life, health or safety or is likely to lead to riot or affray. (2) The Government shall, before taking action under sub section (1), give the Gram Panchayat, Mandal Parishad or the Zilla Parishad as the case may be, an opportunity for explanation. (3) If in the opinion of the District Collector, immediate action is necessary to suspend a resolution on any of the grounds referred to in Clause (c) of sub section (1), the may make a report to the Government and the Government may, by order in writing, suspend the resolution. 25. In Eguvakamma Kandriga Gram Panchayat, S. R. Puram Mandal, Chittoor District vs. District collector, chittoor [1]a Division Bench of this Court at paras 7 and 8 held : “Sub-section (3) of Section 246 of the act provides and enables the District collector to make a report to the government that in his opinion immediate action is necessary to suspend a resolution on any of the grounds referred to in clause (c) of sub-section (1) of Section 246 of the Act and the Government may, by order in writing, suspend the resolution. Thus the power of the Government to cancel the resolution or suspend the same, in case of urgency, is not in dispute. But, in the instant case on hand, the government did not exercise any such power, but the District Collector interfered with the resolution passed by the Gram panchayat. In our considered opinion, the collector could not have interfered with the resolution of the Gram Panchayat. It was always open to him to make a report to the government if the conditions were satisfied for making such a report requiring the government's interference in the matter in exercise of its power under Section 246 of the Act.” 26. Unless and until the Government is interested in exercising the power by virtue of Section 246 of the Act, till then the Resolution of the Gram Panchayat to be given effect to. It may be that if the Government is convinced that the Resolution of the Gram Panchayat, if to be given effect to, may cause prejudice to the public of the Gram Panchayat, the Government is at liberty to take appropriate decision in accordance with law. 27. Subject to the above observation, this Court is of the considered opinion that the writ petitioners are bound to succeed and accordingly the respondents 1 to 3 are directed to complete the overhead tank in Vemuluru village, Kovvur Mandal, W.G. District, in accordance with law unless otherwise the Government is inclined to exercise the power under Section 246 of the Act aforesaid. 28. Accordingly, subject to the above observation, the Writ Petition is hereby allowed to the extent indicated above. No costs. _________________ Justice P.S. Narayana Date : 3-11-2009 AM [1] 2004(2) ALD 299