IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.NO.27237 OF 2009. Date:21.12.2009 Between:- M/s.Telugu One Foundation, a Non Government Organization, rep.by its President/Managing Trustee Sri S.Chakradhar. ..Petitioner And The Government of Andhra Pradesh, rep.by Collector, Krishna District and others. .. Respondents ORDER:- This Court issued Rule Nisi on 16.12.2009. 2. Counter affidavit had been filed by respondent No.2 and the relevant record had also been produced by him. 3. Heard Sri T.Sharath, learned counsel representing petitioner. Heard the learned Assistant Government Pleader for Revenue and Sri M.Prabhakar Rao representing the respondents. 4. The writ petition is filed for a writ of mandamus to declare the action of respondent No.2 in issuing letter dated 27.09.2009, directing respondent No.3 to initiate action for stopping the construction of water plant without disclosing any source of information, without issuing any notice and without holding any enquiry; the consequent action of respondent No.3 in issuing letter dated 27.09.2009 and seizing the plant on 4.12.2009 and to declare the action of respondent No.2 in sealing the petitioner’s water plant as illegal, arbitrary and against the principles of natural justice and without jurisdiction, violative of Article 14 of the Constitution of India and for consequent direction to respondent Nos.2 and 3 to remove the seal of the water plant and put the petitioner in possession of the water plant and pass such other suitable orders. 5. It is the case of the petitioner that the petitioner is a voluntary organization formed with objects of taking up issues relating to health and education of public importance and extending support to resolve public issues and problems to the extent possible. With a view to achieve the purpose and objects of the organization, the petitioner had been undertaking several works to resolve and provide basic requirements such as providing clean drinking water supply using RO plants, helping young children affected with congenital diseases and by providing assistance for surgeries. As part of their social responsibility, the petitioner help to raise gap funding to those little children to get their lives back. Till date, over 150 children have been benefited under this programme. The foundation constructed 120 houses in the calamity effected areas of Divi Seema. Scholarship for over 1000 poor girl students studying various courses have been provided. 6. It is further stated that while in pursuit of aims and objects of the organization, the petitioner had come across the drinking water problem being faced by the people of Challapalli village of Krishna District. The organization had made certain investigations in that village and found that the drinking water is unsafe for potable and the people in that village and neighbouring villages are facing acute drinking water problem. 7. It is further stated that being a non profit organization and looking for an opportunity to serve the public needs and requirements, the petitioner made a requisition to respondent No.4 with a request to give an opportunity to take up and resolve the problem of drinking water supply in the village by installing the water treatment plant. Respondent No.4, in response to the requisition dated 23.09.2009, by resolution No.82 passed by the extraordinary General Body meeting on 25.09.2009, temporarily permitted the petitioner to install the water plant on the left side open place with a small room located in the school premises of Shri Ramalingeshwara Rao Mandal Parishad Primary School. 8. It is also stated that immediately thereafter, the petitioner organization invested huge amount and installed the plant on war footing and started supply of water not only to the villagers of Challapalli but also to the neighbouring villages. Several newspapers also carried the news to that effect. Even during the recent floods, which occurred in the village, the petitioner organization successfully met the requirement of the flooded villages by supplying nearly 50,000 liters of RO water. The plant under dispute catered nearly 20,000 liters of RO water per day. Apart from the effected villagers, the Revenue and the Police officials on flood duty were utilizing the water served by the petitioner organization, which services rendered by the petitioner were known to the District Authorities. 9. It is further stated that as things stood thus, respondent No.2 addressed a letter dated 27.09.2009 to respondent No.3 directing respondent No.3 to stop the construction of water plant on the ground that the same was unauthorized. The letter of respondent No.2, dated 27.09.2009, does not disclose how the acts of the petitioner can be termed as unauthorized when respondent No.3 had resolved to grant permission for erecting the water plant. The contents of the said letter only speak that respondent No.2 learnt information that the petitioner organization is constructing the water plant without authority and the said letter does not disclose the source of having information and the said letter also doesn’t specify that any prior permission or consent of respondent No.2 is not obtained. Respondent No.2 directed respondent No.3 to stop the construction, which in fact was already completed and supply is also in progress. Respondent No.2 in the said letter also directed respondent No.3 to lodge a complaint with the police which was registered as Crime No.169 of 2009, dated 02.12.2009. Respondent No.3, vide proceedings dated 27.09.2009, directed the petitioner to stop the work. 10. It is further stated that the President of respondent No.4 had undertaken an indefinite hunger strike seeking no objection from respondent No.2 to run the water plant on temporary basis at a place delivered by respondent No.4 to the petitioner. On 3.12.2009 the fast was ended on the assurance that an alternate site would be provided. Though such assurance was given by respondent No.2, respondent No.3, under the cover of the proceedings issued by respondent No.2, clandestinely sealed the water plant thereby stopping the supply of clean drinking water to the villagers. 11. It is further stated that when the plant had been erected and drinking water is being supplied to the villagers, the public purpose for which the plant was erected is being executed, respondent No.2 without even applying his mind, ordered the plant to be removed. The action of respondent No.3, on the strength of the letter dated 27.9.2009 of respondent No.2, overlooking the fact that the permission had been accorded by respondent No.4 i.e., Mandal Parishad Committee, vide proceedings, dated 27.09.2009, is illegal. The letter dated 27.09.2009 of respondent No.2 itself is illegal and without jurisdiction. 12. It is further stated that the petitioner was advised to state that respondent No.4 exercised power under Section 162 of the Andhra Pradesh Panchayat Raj Act, 1994, which is sovereign duty visa vis the duty to construct, maintain water works for supply of water for washing, bathing and protected water for drinking purposes. The petitioner was advised to state that the power had been exercised for mitigating the drinking water problem for common good of the villagers and there are no incidents of misuse or abuse of any powers least an allegation to that effect. Respondent No.2 has no power or jurisdiction to issue such orders without any enquiry and without issuing any notice to the petitioner before passing a drastic order of seizing the plant. Respondent No.3 got served a notice on 3.12.2009 and sealed the plant and conducted panchanama on 4.12.2009. The action of respondent No.3 in issuing letter dated 27.09.2009, on the strength of the letter dated 27.09.2009 of respondent No.2, is illegal, without power or jurisdiction and against the principles of natural justice and hence, the same is liable to be declared as illegal. 13. It is further stated that the petitioner installed the plant by spending huge amount of money and had taken up the project voluntarily for serving public cause. The respondents, though have granted permission for installing the plant for limited period, are bound to follow principles of natural justice before proceeding to take any action, by holding enquiry and by giving an opportunity to the petitioner. The petitioner had taken up the issue with respondent No.4. It was agreed to allocate alternative land, which assurance had not seen the light of the day. Till such time, the respondents makes arrangement the petitioner may be permitted to put to function the present unit and supply drinking water to the villagers. The respondents are not even thinking for a minute the public interest and necessities. 14. It is further stated that the action of respondent No.2 in issuing letter dated 27.09.2009 in ordering respondent No.3 to initiate action for stopping the construction of water plant without disclosing any source of information, without issuing any notice, without holding any enquiry, the consequent action of respondent No.3 in issuing letter dated 27.09.2009 and seizing the plant on 4.12.2009 is without power or jurisdiction, illegal, arbitrary and against the principles of natural justice and in violation of Article 14 of the Constitution of India. The petitioner’s water plant had been sealed on the strength of the direction of respondent No.2. Hence, the action of respondent No.2 is liable to be declared illegal, arbitrary and against the principles of natural justice and without jurisdiction and consequently, direct respondent Nos.2 and 3 to remove the seal of the water plant and put the petitioner in possession of the water plant. The petitioner had no other effective alternative remedy than approaching this Court by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. In such circumstances, the writ petitioner approached this Court and filed the present writ petition. 15. In the counter affidavit filed by respondent No.2, several of the averments have been denied and certain averments have been further explained. It is stated that in Challapalli village and Mandal, there is a Mandal Parishad Elementary School and the administration of the school is under the control of the Mandal Parishad Development Officer, respondent No.3 herein. The school is functioning properly with considerable strength of school going children. While so, on 25.09.2009, petitioner organization sought for permission for installation of purified drinking water plant in the school premises, as the Mandal Praja Parishad passed a resolution to hand over a part of school building to carry on its private business. On receipt of the said letter from respondent No.3, a report was called for from the Deputy Executive Engineer, Panchayat Raj, Pamarru and the Mandal Education Officer, Challapalli. It was reported by the Deputy Executive Engineer and the Mandal Educational Officer that the school is being functioning since 1974 and the properties of the local bodies cannot be alienated or leased out to private parties without the permission of the District Collector or the Government, as the case may be, and in the instant case, the Mandal Parishad, in contravention of the rules stipulated in G.O.Ms.No.215, dated 25.6.2001, as amended by G.O.Ms.No.323, dated 29.10.2001, leased out the premises to the petitioner. The relevant rule is hereby extracted for convenience. “Rule 5: Transfer by lease of immovable property vested in but not belonging to Gram Panchayat, Mandal Parishad and Zilla Parishad. No land belonging to Gram Panchayat, Mandal Parishad and Zilla Parishad or vested in by them, the Government shall be given on lease to any private individuals, association of private individuals or private organizations. Provided that such leases can be granted in favour of Government Departments and Government Organizations where the Government is having more than 50% share. Provided further that prior approval of the District Collector shall be taken with regard to such organizations in the case of Gram Panchayats and Mandal Parishads and whereas in the case of Zilla Parishads prior approval of the Government shall be obtained.” Thus, the rules does not permit to lease out the property of the local body to private organizations without prior approval of the District Collector or the Government, as the case may be. In the instant case, the Mandal Parishad, in contravention of the rules, passed a resolution and handed over part of the school building to the writ petitioner. The writ petitioner, even without waiting for the approval from the competent authority and without there being any lease agreement, occupied the premises illegally and dumped the machinery overnight for installation of the purified water plant. Having noticed the illegal encroachment of school building and the illegal activities through the reports of the Mandal Educational Officer and the Deputy Executive Engineer, the petitioner was asked orally not to proceed with the installation of any drinking water plant in the school premises. Even then, the petitioner is proceeding with the installation of the plant and therefore, the premises occupied by the petitioner was locked under police custody. Then, the petitioner and some supporters of the petitioner conducted a dharna in the village. In view of the situation prevailed in the village, the District Collector intervened and promised the petitioner to provide alternate site in the village for installation of his plant, as the same cannot be permitted in the school premises, in view of the inconvenience and disturbance that will be caused to the school children. To that effect, the District Collector instructed the Revenue Divisional Officer and the Tahsildar to see that an alternate site in the village shall be allotted to the petitioner immediately to shift his machinery forthwith. It was also instructed by the District Collector that the land chosen and opted by the writ petitioner should be allotted. Accordingly, the writ petitioner opted five places in the village and the Tahsildar, after due enquiry, recommended an extent of Ac.0-10 cents of land in R.S.No.27 of Challapalli village, which was opted by the writ petitioner. The same will be allotted to the writ petitioner immediately on receipt of their application. But the writ petitioner, without making any application for allotment of alternate land as agreed by him before the District Collector, filed the present writ petition suppressing the material facts. If the petitioner wants to render their services to the public, absolutely, there is no objection to any quarter for the so called public service. But the only objection is that no other activities will be permitted in the school premises, which will cause serious inconvenience to the school children. Moreover the writ petitioner, under the guise of public service, shall not be permitted to occupy the school premises, without prior approval of the competent authority to carry on his business. Hence, the writ petition is liable to be dismissed. 16. It is further stated that the Mandal Parishad has no power or jurisdiction to part with the property belonging to local bodies as contemplated under relevant rules and therefore, the resolution that was passed by the Mandal Parishad has no legal effect and the petitioner cannot claim any benefit under the guise of an illegal resolution. 17. It is further stated that it is totally incorrect to say that the petitioner has invested huge amounts. The petitioner occupied part of the school building and kept his machinery for installation of the purified water plant. That machinery can be shifted without any damage or loss to the alternate site that will be provided. 18. It is further stated that it is a fact that on 27.09.2009, basing on the reports submitted by the Mandal Educational Officer and the Deputy Executive Engineer, respondent No.3 was directed to stop the installation of water plant by the writ petitioner, as it is contrary to rules and will cause serious inconvenience to the school children. It is also a fact that inspite of the instructions to stop the installation, the petitioner is high handedly tried to install the plant and therefore, a police complaint was also made. 19. It is further stated that it is a fact that at the instance of the writ petitioner, respondent No.4 had undertaken a hunger strike and however, on intervention by the District Collector and on assurance of providing alternate site, the issue was pacified. Accordingly, the writ petitioner identified five places in the village and out of which, an extent of Ac.0-10 cents is sought to be allotted immediately on receipt of an application from the writ petitioner, which is evident from the proceedings of the Tahsildar, vide Rc.No.A.435/2009, dated 07.12.2009. The function of water plant was not yet started and therefore, the question of stopping the supply of the drinking water does not arise, as alleged by the petitioner. 20. It is further stated that it is false to say that respondent No.2, without any power or authority, directed respondent No.3 to stop the supply of drinking water. The plant itself was not installed in its full-fledge and absolutely, there is no supply of drinking water as alleged. After due enquiry and on the basis of the reports submitted by the Mandal Educational Officer and the Deputy Executive Engineer, respondent No.3 was directed to stop the illegal activities of the petitioner and respondent No.3, after issuing a notice to the writ petitioner, stopped the activities of installation of water plant under a panchanama. Absolutely, there is no illegality or irregularity in issuing the proceedings to stop the illegal activities. This is the stand taken in the counter of respondent No.2. 21. In the light of the specific stand taken in Paragraph No.4 of the counter affidavit of respondent No.2 and in as much as it is stated that in the facts and circumstances of the case, the request of the petitioner for providing alternative site would be favourably considered, this Court is of the considered view that the writ petition be disposed of with a direction to respondent No.1 to consider the request of the petitioner for allotment of alternate site, if any, in accordance with law. 22. The writ petition is disposed of accordingly. There shall be no order as to costs. _​_____________ P.S.NARAYANA, J 21st December, 2009 AMD