THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.3808 of 2009 June 01, 2010 Between: Kagita Venkata Narayana Rao, S/o.Ramdasu … Petitioners And The District Collector, Machilipatnam, Krishna District And others ... Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.3808 of 2009 ORDER: The petitioner is a Ward member of Chinnapuram Gram Panchayat of Machilipatnam in Krishna District. He filed instant writ petition aggrieved by the inaction of respondents 1, 2 and 4, namely, the District Collector, District Panchayat Officer (DPO) and the Revenue Divisional Officer (RDO) respectively, in not taking action against third respondent, namely, Chinnapuram Gram Panchayat, for allegedly constructing Gram Panchayat building by encroaching the tank bed land of Tavvamma Cheruvu (the Tank, for brevity). This Court while admitting writ petition on 25.2.2009 passed interlocutory orders in WPMP No.4962 of 2009 prohibiting Gram Panchayat from making any construction in the area covered by the Tank in the village while observing that, “it shall, however, be open to the Gram Panchayat to construct the office building in an area not covered by any tank.” Fifth respondent, who is the Sarpanch, moved WVMP No.592 of 2010 for vacating the interim order and the DPO filed counter affidavit. In view of this, though interlocutory matters are listed, the matter itself is heard and is being disposed of finally. The petitioner’s case is as follows. Initially a site was identified for construction of Gram Panchayat building. It was accessible to all the villagers. Third respondent, however, laid foundation stone for construction of the building near the Tank by encroaching the tank bed land. The petitioner asserts that the Tank is being used for washing clothes, cleaning the cattle and for growing fish. He alleges that the site for construction of the building was changed as earlier site belonged to M/s.J.Chalapathi Rao, J.Venkatapparao and D.Balabhaskar Rao, who are relatives of the Sarpanch. It is also his case that on 02.2.2009 Sarpanch convened meeting, which was attended by five Ward members. A resolution was passed to construct the building near the Tank. Petitioner applied for a copy of the resolution No.1354/07, dated 25.1.2009, under the Right to Information Act, 2005, and the same was denied to him. He further alleges that Sarpanch is acting with vested interest and doing disservice to the villagers and, therefore, present writ petition is filed. The counter affidavit of fifth respondent and the counter affidavit of DPO reveal the following case of respondents. The Gram Panchayat passed resolution on 11.10.2001 to construct office building at a place adjacent to the Tank abutting R&B road. It could not be constructed due to paucity of funds. In 2002 yet another resolution was passed to construct the Gram Panchayat building adjacent to elementary school and R&B road. There is no resolution passed in 2005. When the construction of building was commenced, as per 2002 resolution, writ petition being W.P.No.21625 of 2002 was filed challenging the resolution proposing construction of building adjacent to elementary school. There was a pit between the wall of the Tank and R&B road. As per the resolution dated 19.4.1975, Gram Panchayat filled the pit with mud and constructed the wall. Therefore the land adjacent to R&B road was selected as the proper site to construct Gram Panchayat building and proposals were sent. The District Collector vide proceedings dated 25.1.2009 accorded sanction for construction of Chinnapuram Gram Panchayat building at a cost of Rs.5,00,000/-. The Sarpanch convened the meeting on 02.2.2009. Though the petitioner received notice, he did not attend the meeting. The work was entrusted to Village Works Committee on 09.2.2009 and major part of the work was completed by engaging a contractor. Substantial portion of the work was completed and no part of the tank bed land is encroached. All other allegations made by petitioner are denied. The counsel for petitioner vehemently submits that the construction of office building and any other building in the land forming part of water bodies is prohibited by the Government and, therefore, Gram Panchayat cannot be allowed to go ahead with construction. It is also submitted that the water in the Tank is being used for drinking purpose and if access is denied to the villagers, the very purpose of the Tank would be lost. Per contra, the counsel for Sarpanch and Assistant Government Pleader for Panchayat Raj submit that the resolutions were passed way back in 1991 and 2002 and there was no resolution now passed to construct Gram Panchayat building near the Tank. Both of them submit that the building is constructed adjacent to the Tank and no part of the tank bed land is lost. They deny other allegations. They also submit that when the building is almost completed, the petitioner, who is a Ward member, without attending the meeting, chose to file the writ petition making all false allegations. The Sarpanch filed counter affidavit along with WVMP No.592 of 2010 on 10.2.2010. The DPO also filed counter affidavit on 26.2.2010 with supportive averments. Though the counter affidavits are filed in February 2010, petitioner did not choose to file reply affidavit denying the allegations. It is well settled that when the averments made in the affidavit are not controverted by opposite party, they should be presumed as admitted (see C.S.Rouji v State of Andhra Pradesh[1], Bharat Singh v State of Haryana[2], Naseem Bhanu v State of Uttar Pradesh[3] and Lohia Properties v Atmaraman Kumar[4]). Further, it has been brought to the notice of this Court that the petitioner herein filed a contempt case being CC No.300 of 2009 alleging that the interim order of this Court dated 25.2.2009 has been dispatched by the respondents by proceeding with the construction. This Court disposed of/closed the contempt case making the following observations. This Court, no doubt, granted interim stay of construction, that too, by stipulating certain conditions. Though it is alleged in the affidavit filed in support of the contempt case that the slab was laid after the interim order of this Court, it is silent as to the exact date. The third respondent states that by the time the orders of this Court were received, the slab was already laid. It is also represented that no part of the tank was filled for construction of the office. These aspects, however, need to be decided in the writ petition. Once, it emerges that the building has already been constructed, it cannot be said that there was any deliberate contempt on the part of the third respondent. (emphasis supplied) In view of the finding recorded by this Court, it stands concluded that the building has already been constructed. Furthermore, the petitioner has not placed any material before this Court to show that construction has been taken out by the Gram Panchayat in the land forming part of the tank bed. In the absence of any such proof, this Court is not inclined to accept the writ petition containing frivolous and unsupported averments. In the result, the writ petition is dismissed with exemplary costs quantified at Rs.10,000/- (Rupees ten thousand only). The costs shall be paid by the petitioner to the District Legal Services Authority, Krishna at Machilipatnam, within a period of one month from the date of receipt of a copy of this order. If the costs are not paid within the said period, it shall be open to the District Legal Services Authority to execute this order as a decree of the Court. ______________ (V.V.S. RAO, J) June 01, 2010 YS [1] AIR 1964 SC 962 [2] AIR 1988 SC 2181 [3] 1993 Supp (4) SCC 46 [4] (1993) 4 SCC 6