THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 18926 OF 2011 ORDER : 1. This Writ Petition is filed seeking to issue a writ of mandamus declaring the action of the respondents in seeking to construct storm water drainage under UIDSSMT Scheme under Agreement No.08/09-10, dated 16.6.2009 pertaining to Survey No.197 and 205 (including sub numbers), Sharadanagar of Gollaguda Revenue Village, Kesarajupalli Grampanchayat, Nalgonda Mandal and District as illegal and arbitrary and consequently direct the respondents not to undertake the work in the aforesaid land. 2. The averments, in brief, of the affidavit filed in support of the Writ Petition may be stated as follows: The petitioners 1 to 4 are owners, title holders and possessors of plot nos. 31, 22, 23 and 18 respectively, in Sharadanagar forming part of Survey nos. 197 and 205 of Gollaguda Revenue Village, Nalgonda District within the limits of Kesarajupalli Grampanchayat, having purchased the same under registered sale deeds in the year 2003. The Grampanchayat sanctioned a lay-out for Sharadanagar. Second respondent-municipality proposed construction of storm water drainage under Investigation, Survey, Design, Proportion of Detailed Estimates and Execution of comprehensive Storm Water Drainage Schedule (UIDSSMT) and the first respondent- government accorded sanction therefor. The fifth respondent was the successful bidder therefor and the contract agreement dated 16.6.2009 was entered into under Engineering, Procurement and Construction (EPC) scheme. There is already 8 feet wide drain abutting plot no.2 in the lay out which turns towards east and joins the main canal. To the west of the lay-out, there is a private school by name Surdas Bhavan (blind school). There is a separate entry to the said school towards south of their premises. The owner of plot nos. 2 and 3 could influence the officials in the name of blind school and for themselves and got altered design of the whole scheme. Now, the 40 feet road shown in GREEN colour in the plan annexed is proposed to be converted into a drain of 18 feet. There is a proposal to take the turn to the left between plot nos. 22 and 10 and then connect to the drain towards extreme north. This is proposed to be done by deducting 8 feet width open canal. If the extended drain is extended by another 10 feet by taking over the land, unnecessary bends can be avoided and it would entail in reduction of expenditure for the State. In 40 feet and 30 feet road, if 18 feet storm water drain is dug, the entire plots abutting this would be rendered useless and it would be a great risk to respondents including the old aged and children, apart from resulting in huge expenditure besides involving technical difficulties. This is a sanctioned lay out and the common areas vest with the concerned grampanchayat, and unless grampanchayat permits or appropriate acquisition is done, the respondents 1 to 4 could not have embarked upon the said scheme when particularly the land does not belong to second respondent municipality. Hence, the action of the respondents is illegal and arbitrary. 3. The second respondent filed counter affidavit denying the averments made in the writ affidavit and stating inter alia as follows: House plots as stated by the petitioners are not covered in any approved layout. The Government accorded administrative sanction for the work of ‘construction of storm water drainage’ in the second respondent municipality and the work was awarded to the fifth respondent. It is proposed to construct a 10 feet drain from Peddabanda stadium road to blind hostel and 16 feet drain from blind hostel to railway bridge under the Nalgonda Storm Water Drainage Scheme. The drain from Peddabanda road to blind school at existing culvert was completed and construction of remaining drain portion from blind school to railway bridge was proposed through the land of blind hostel and through private lands and proposals for acquiring land therefor was sent to the Revenue Divisional Officer, Nalgonda. The General Secretary of Development and Welfare Association of the Blind, Andhra Pradesh, SURDAS Bhavan, Blind School Nalgonda submitted a representation to the third respondent on 6.6.2011 stating that the organization is working for the blind by the blind with donations from donors, philanthropists and with partial aid from the Government of India, and requested not to acquire the land of the blind school and hostel. To safeguard the future of the blind school on humanitarian grounds and to minimize the cost of land acquisition, it is proposed to construct the 10 feet drain from Surdas Bhavan (Blind Hostel) to ‘Y’ junction through left side of 40 feet road to a length of 66 meters to connect it to the already constructed 16 feet drain to Railway Bridge for safe passage of storm water duly retaining the existing drain of 5 feet adjacent to the blind hostel. The scheme was taken up to facilitate functional efficiency of health status and to achieve optimum economic and healthy living standards of the people of Nalgonda. There are no unnecessary bends in the proposed construction as this drain is passing along with public road. The plots abutting nala will not be rendered useless but will be provided with proper drainage facility. If the construction of the proposed drain is stopped, the plots of the petitioners and others will be submerged by the storm water coming through the drain which was constructed from Peddabanda road to Sudas Bhavan as there is no safe passage. Hence, it is prayed to dismiss the Writ Petition. 4. The fourth respondent filed counter affidavit on his behalf and on behalf of the respondents 1 and 3 denying the averments made in the writ affidavit and reiterated the averments in the counter affidavit of the second respondent. It is further stated that the proposed drain is passing through left side of 40 feet and 30 feet roads and not through the private lands and that it is not passing through the plots of the petitioners and there is no inconvenience to them, and that acquisition of the land is not necessary for the said purpose. Hence, it is prayed to dismiss the Writ Petition. 5. The petitioner filed reply affidavit stating as follows: There is an approved lay-out and all the plots were laid in accordance with it. In the event of rights of third parties being affected, the respondents are required to put them on notice and their lands have to be acquired in accordance with law. The respondents colluded with the owners of the land covered by the blind hostel. As the originally proposed drainage was adjacent to compound wall of the blind school, no inconvenience would have been caused to anybody. If the existing storm water drain which is adjacent to the blind school is expanded, future of the blind school would not be adversely affected and it would have resulted in minimum acquisition of land to an extent of 1926 square meters, out of which land of blind school is only 476 square meters. The proposed construction would be expensive. The respondents can always lay the storm water drainage canal in accordance with law after taking into account the difficulties, inconvenience and the representations of the petitioners into account. Owners of plot nos. 31 and 32 also would be affected as they have to pass through the roads for reaching their plots and proposed houses, and all plots would be rendered useless and unfit for human habitation by virtue of the proposed constructions. 6. It is the contention of the learned counsel for the petitioners that owners of plot nos. 2 and 3 influenced the official respondents in altering the alignment of the drainage; that by virtue of the scheme of storm water drainage, 40 feet road shown in the approved layout plan is proposed to be converted into drain of 18 feet, and the entire plots abutting the drain would be rendered useless; that, because it is an open drain, it would likely to cause great risk to the persons who may use the road; that recently, the petitioners came to know that the respondent no.5 was awarded contract on 16.6.2009. It is his further contention that the common areas and roads in the sanctioned lay out would be vested with the grampanchayat, and unless it permits, the respondents 1 to 4 have no power to implement the scheme through the common areas and roads; therefore, the entire action of the respondents 1 to 4 is illegal and hence, he prays to issue a mandamus declaring the agreement dated 16.6.2009 as illegal and arbitrary. 7. On the other hand, learned Government Pleader appearing for the respondents 1, 3 and 4 and the learned Standing Counsel appearing for the second respondent contended that under G.O. Ms. No.64, Municipal Administration and Urban Development (A1) Department, dated 17.1.2008, the Government accorded sanction for the work of construction of storm water drainage in Nalgonda municipality; that the work was awarded to the fifth respondent and the design of the scheme has been approved by the Superintending Engineer, and the drain from Peddabanda stadium road to blind school up to existing culvert was completed and the remaining drain from blind hostel to railway bridge through the land of blind hostel is yet to be completed; that the proposed drain is passing through left side of 40 feet road and 30 feet road and not through the lands of petitioners; that width of the drain is 10 feet and the alignment of the drain was changed to minimize the cost of land acquisition, and hence, he prayed to dismiss the Writ Petition. 8. Counsel for the unofficial respondents contended that previously the drain was going through blind school; that General Secretary of the Development and Welfare Association of the Blind gave a representation not to acquire the land belonging to blind school as it was given by donors and also to safeguard the future of the blind school, and considering the same and also to minimize cost of land acquisition, the acquisition of the land belonging to the blind school was not taken up, and there are no unnecessary bends in the proposed drainage so that the water can pass opposite to the plot of the petitioners, and that drain is not passing through the land of the petitioners or in front of the land of the petitioners, and hence, he prayed to dismiss the Writ Petition. 9. The Government of Andhra Pradesh issued G.O. Ms. No.64, Municipal Administration and Urban Development (A1) Department, dated 17.1.2008 according administrative sanction for construction of storm water drainage in Nalgonda Municipality, whereunder it is proposed to execute major and medium storm water drains of 25.203 KMs length including 26 Nos. of culverts covering the entire town of Nalgonda as per the Central Public Health and Environmental Engineering Organisation (CPHEEO) at a cost of Rs.3760.00 lakhs. The work was entrusted to the fifth respondent for execution under Engineering, Procurement and Construction (EPC) system. Designs were calculated considering the intensity of rain fall and residential density of the population. An agreement was entered into between the respondents 4 and 5 on 16.06.2009 vide agreement No.8/2009-10, which is being challenged by the petitioners. 10. Under the aforesaid scheme, it is proposed to construct 10 feet drain from Peddabanda Stadium road to blind hostel and 16 feet drain from blind hostel to railway bridge. The first phase viz. drain from Peddabanda road to blind school at existing culvert was completed. There was a proposal to construct the remaining drain portion from blind school to railway bridge through land of blind hostel and private lands and the second respondent submitted proposals to the Revenue Divisional Officer, Nalgonda for acquiring 1920 square meters of land. The General Secretary of the Development and Welfare Association of the Blind, Andhra Pradesh, Surdas Bhavan, Blind School, Nalgonda submitted a representation stating that the organization is working for the blind persons with the donations from donors, philanthropists and with partial aid from the Government of India and requested not to acquire the land of the blind school and hostel being run by the society. The request was considered on humanitarian grounds and to safeguard the interest of blind school in Nalgonda and also to minimize the cost of the land acquisition, it is proposed to construct a 10 feet drain from Surdas Bhavan to ‘Y’ junction through the left side of the 40 feet road to a length of 66 meters and then to the drain to the left to 30 feet road with a length of 85 meters to connect it to the already constructed 16 feet drain to railway bridge for safe passage of storm water duly retaining the existing drain of 5 feet adjacent to the blind hostel. 11. It is the case of the respondents that the proposed drain is passing through left side of 40 feet road and 30 feet road and not through the petitioners’ lands, and if the storm water is not drained properly, it would cause stagnation of water and inundate the low lying areas. It is the case of the official respondents that the scheme is taken up to facilitate the functional efficiency of the of the health status and to achieve optimum economic and healthy living standards of the people of Nalgonda. The petitioners claim to be owners of the plot nos. 31, 22, 23 and 18 respectively. The proposed drain admittedly is not passing in front of the plot nos. 22 and 23. The person who filed affidavit on behalf of the other petitioners, is not affected by this drain because his house plot is facing towards road wherein there is no proposal to dig the drain. The petitioner no.2 claims to be owner of plot nos. 22 and 23. He has not filed any affidavit giving justifiable reasons as to in what manner the proposed drain would cause injustice or hardship, to him. Admittedly, the proposed drain would not pass in front of these two plots. The existence of right is implicit for the exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Ordinarily, a person who is not aggrieved by the discrimination complained of, cannot maintain a Writ Petition. Neither the legal right nor legally protected interest of the second petitioner has been adversely affected with regard to slight change of alignment of storm water drainage. 12. Learned counsel for the petitioners relied on a decision in SIEL Foods and Fertilizers Industries v. Union of India[1], wherein it is held thus: “It, therefore, follows that such land dedicated by private owners to the community, if required for any other purpose, or is diverted to any other use by DDA (as, for example, for putting up constructions or for sale or lease for development or construction), the land owner will be entitled to compensation. But, so long as the land remained as lung space/green area, there is no question of any payment to the owner, as compensation or otherwise.” Basing on the above decision, it is contended that in the lay-out, as the land is shown as a road, it cannot be used for any other purpose except for the use as a road. That is a case where the land which has to be surrendered is to be retained as a green belt and open space and not to be sold, constructed or developed by Delhi Development Authority. From the above decision, it is also clear that certain extent of land will be at the disposal of the community at large and therefore the Delhi Development Authority shall not exploit it either for commercial use or for construction of any residential flats. Therefore, in the facts and circumstances of the case, it was held by the Apex Court that if the land is retained for a particular purpose, it shall be used for that purpose. 13. The learned counsel for the petitioners also relied on a decision in Pt. Chet Ram Vishist (dead) by LRs. V. Municipal Corporation of Delhi[2], wherein it is held thus: “Reserving any site for any street, open space, park, school etc. in a lay-out plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner cases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or seling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned lay-out plan. But the question is, does it entitle the Corporation to claim that the land so sepcified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred in the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for parks and school was an order for transfer without there being any sanction for the same in law.” It is a case where when the petitioner therein applied for sanction of the plan for construction activities with a condition that open space for park school, etc. was transferred to Corporation free of cost. So, that question does not arise in the case on hand because it is not a case of municipality asking the land to transfer to it free of cost. 14. The learned counsel for the petitioners also relied on a decision in Karnataka Industrial Areas Development Board v. C.Kenchappa & others[3], wherein it is held thus: “We are also clearly of the considered view that it should be made mandatory for the allottee to obtain necessary clearance for the Project from the Karnataka State Pollution Control Board and the Department of Ecology and Environment before execution of the agreement. Consequently, we direct the appellant to incorporate his condition in the letter of allotment requiring the allottee to obtain clearance before putting up any industry. The condition has to be mandatory.” The above decision has no application to the facts of the present case. 15. The stretch of major and medium storm water drain to be executed is about 25 KMs in Nalgonda area. It is not for any commercial purpose. If the drain is not constructed, certainly there will be stagnation of water in low lying areas, in which event, there is every likelihood of causing health hazards. The alignment of the drain is most important factor to be taken into consideration for the purpose of free flow of drain water. Therefore, the public purpose is the paramount consideration which has to be taken into consideration when compared with the inconvenience that may be caused to a few individuals like the petitioners. If the drain is to be passed by the side of the road, as proposed, the question of acquiring the land from the private persons may not arise. The alignment was changed considering the representation of the management of the blind school. There was a small drainage passing through the blind school. If the drainage is converted into a big one as a part of this project, necessarily the land of the blind school has to be acquired and the Government has to pay compensation for such acquisition. It is not in dispute before this Court that for construction of the blind school and hostel, majority of the land is donated by donors and philanthropists. In such circumstances, it is not proper for the Government to acquire the land belonging to the Surdas Bhavan (blind school). Further more, if the proposed drain is to pass through blind school, it would cause danger to the lives of the blind persons who have to stay in the hostel. Precisely, for these reasons, the official respondents considered the representation of the management of the blind school and had taken a decision to lay the drainage by the side of the road. No doubt, the entire road is earmarked for road purpose. But, the authorities are not converting any part of the road for commercial purpose. In the interest of general public and the persons who are living in the low lying areas, the scheme is prepared thereby the drain water would not cause any health hazards and inconvenience to the people. Even the present proposed drain which is going to be laid by the side of the road would not pass right in front of the plot of the second petitioner. So also, no right of the other petitioners is being affected in any manner. 16. The whole contention of the learned counsel for the petitioners is that since the place where the drain has to be laid, is shown as a road in the sanctioned lay out and as the land in question lies within the grampanchayat area, the municipality has no authority to lay the drainage. According to the learned counsel for the petitioners, the lands are situated in Gollaguda Revenue Village. The Panchayat Secretary of Kesarajupalli village, vide letter No.03/GP/Kesarajupalli/2011, dated 14.07.2011 informed the second respondent that the approved lay out plan in respect of survey nos. 197 and 205 of Gollaguda revenue village in Kesarajupalli grampanchayat does not fall within the limits of the grampanchayat. Therefore, in the absence of any prima facie proof that the land through which the proposed drainage line is to be laid, lies within the panchayat limits of Gollaguda revenue village, the question of vesting of the rights with the panchayat does not arise, and consequently, the authorities who have taken decision to lay the drain, need not obtain any permission from the grampanchayat. No doubt, the petitioners filed copy of the resolution passed by the Sarpanch in-charge for approval of the lay-out, but the Panchayat Secretary of Kesarajupalli village informed the second respondent that the approved lay out plan in respect of survey nos. 197 and 205 of Gollaguda revenue village in Kesarajupalli grampanchayat does not fall within the limits of the grampanchayat. Whereas the plan submitted by the official respondents would indicate that the proposed drain lies within the Nalgonda municipality. Therefore, the question whether the panchayat has given its approval for digging storm water drain or not, cannot be decided in view of the fact that there is dispute as to whether the land in which the disputed drain is proposed to be laid, lies within the municipality or grampanchayat. 17. It is also the contended by the learned counsel for the petitioners that when the Government had already initiated proposals for acquisition of the land and sufficient funds are available, the Government would have laid the drainage as per the original alignment. A proper explanation has been given by the official respondents stating that the alignment was slightly changed so as to pass through by the side of the road and for not acquiring the land belonging the private persons. Therefore, the case of the petitioners that the rights of the petitioners would be affected adversely by the acts of the respondents, cannot be accepted. Admittedly, the drain is being laid by the side of the road and so the question of