G.Manjulamma v. Punganur Municipality, Chittoor District, Rep.By Its

THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Writ Petition No.3818 of 2009 ORDER:

This writ petition is filed seeking the following relief/s: "For the reasons stated in the affidavit accompanying, this Hon'ble court may be pleased to issue a Writ, Order, or Direction, more particularly one in nature of Writ of Certiorari to call for the records pertaining to Impugned Notice dt.21-2-2009 of the 1st respondent and quash the same after declaring the same as illegal, arbitrary, against Principles of Natural Justice, Politically motivated and consequently restrain the Respondents 1 & 2 from interfering with the construction work in pursuance of building permission granted by the 1st respondent vide B.A.No.137/06/G1, Dt.23-9-2006, in the interests of justice and pass such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case." (Reproduced verbatim)

2. I have heard the submissions of the learned counsel for the writ petitioner and the learned Government Pleader for Irrigation appearing for the 2nd respondent and the learned Standing Counsel appearing for the 1st respondent-Punganur Municipality. I have perused the material record.

3. The case of the writ petitioner as set out in the affidavit filed in support of the writ petition, in brief, is this:

The writ petitioner is the owner of a land of an extent of Ac.1-87 cents situated at Melupatla village having purchased the same under a registered sale deed dated 30.11.1995 bearing document no. 2861 of 1995. She wanted to construct a hotel along with a community Hall-cum-Conference Hall in her said land. Between the said land of the petitioner and the MBT road, there is a small canal near MPDO's office, i.e., at 23/8 km., on National Highway, which is called Rayala Cheruvu Morava Vanka ('RCMV', for brevity). As there was no approach road to her land, the petitioner had submitted an application to the Mandal Revenue Officer for giving feasibility report for constructing a culvert across the RCMV, which is a Government

poramboke, so as to construct a culvert at the expense of the petitioner to facilitate easy flow of traffic. Culverts were constructed across the RCMV at two places, viz., one at Kothindla High School to reach Dhobi Colony and another at a place adjacent to the land of a private party. The said culvert was constructed by the owner of the adjacent land, a private party, more for his own benefit. The Municipality had also proposed to construct a culvert across RCMV at another place to facilitate ingress and egress to the land of the petitioner. A feasibility report was issued by the 4th respondentTahasildar after obtaining opinion from the Deputy Executive Engineer, Panchayat Raj sub-division.

The Deputy Executive Engineer had caused an enquiry and had seen the pros and cons concerning the construction of a culvert and had opined that the construction of a culvert over RCMV is feasible if the vent provided is equal to full width of the river with a Deck slab height 1.2 meters over the adjacent road and if constructed at right angles to the flow direction near (28-12-8) household. In pursuance of the said report and after analyzing the spot, the 4th respondent (Tahasildar) had issued a certificate dated 20.01.2005 vide C.No.133 of 2005.

In the said certificate addressed to the Commissioner of Punganur Municipality, the Tahasildar had specified that the construction of a culvert is very much necessary and that the same would facilitate free passage of vehicles and also in the vehicles joining the by-pass road and that the same would be very much accessible to the court premises and Dhobi colony road. The petitioner had applied to the Punganur Municipality, along with the certificate issued by the 4th respondent and the letter of the Deputy Executive Engineer of Panchayat Raj, for a building permission. The petitioner had paid Rs.42,350/- to the Municipality for building permission and under various other heads of accounts. The petitioner had also submitted along with her application, the proposed building plan and the site plan.

The municipal authority has got the same redrawn by a licensed surveyor of the Punganur Municipality, by name, Vayunandan Rao. The proposed constructions were clearly earmarked in the site plan and the construction to be undertaken was specifically shown in thick line.

and the Government Poramboke land, where the Punganur Municipality wanted the petitioner to construct the culvert. The municipal authority granted approval and permission for the hotel building as well as the culvert, vide proceedings B.A.No.137/06/G1 dated 23.09.2006. In the site plan, it is specified that permission is given to construct culvert across a catchment area, in the Government Poramboke to an extent of 804.72 Sq. meters with 12.19 meters wide culvert.

Thus, permission was given to construct petitioner's building on condition of constructing the culvert, which is beneficial for the public including the petitioner as the petitioner will have a clear approach road for her proposed hotel. The permission given to the petitioner is not the first of its kind and the municipality has given such types of permissions earlier. A private party has also constructed a culvert at his own cost on the same vanka at another place. However, as the petitioner is not having sufficient funds to complete the hotel building, she could not raise the construction prior to March 2007. On 11.03.2007, the petitioner had purchased pipes of sufficient sizes as per the specifications of the Mandal Revenue Officer basing on the recommendations of the Executive Engineer of Panchayat Raj.

The said pipes for the culvert were purchased at the cost of Rs.2,99,500/- from Sri Srinivasa Spun Pipes Company, Settipalli, Renigunta and were got transported to Punganur on 11.03.2007 itself. The petitioner wanted to complete the construction of the culvert before completing the construction of her hotel. However, she could not construct the culvert, though pipes were ready. As such, she had applied for a loan from State Bank of India; and a loan in a sum of Rs.75,00,000/- was sanctioned vide letter dated 31.01.2009 and the petitioner has received the loan amount. The petitioner had then started excavating the soil for constructing the culvert. Water will not be present in the Morava Vanka during the whole year and no water can be stored in it.

The name 'vanka' itself denotes that it is a canal and it is not a river much less Koundinya River. The husband of the petitioner had contested for the post of Ward Member in the year 2003 as an independent candidate and was declared elected by a majority of two votes. On re-counting, the husband of the petitioner was declared as defeated.

the Congress party.

He is now the Chair person of the Punganur Municipality. Due to political rivalry, he wants to see that trouble is created for the construction of the hotel of the petitioner. On account of the rivalry with the husband of the petitioner, he intends to take revenge by causing obstruction to the construction of culvert. He wants to see that the petitioner's property/hotel does not have any approach road. Thus instigated, the respondents 1 and 2 had caused issuance of notice dated 21.02.2009 through the 1st respondent-Punganur Municipality directing the writ petitioner to stop the construction by stating that the construction in the river is illegal and that the construction of culvert is being made without any permission. In the said notice/order, which was received on 21.02.2009 through the 1st respondent, the petitioner was directed to stop the construction (Bridge or access to her site) though permission was given by the 1st respondent to raise the construction after getting the feasibility report from the departments concerned.

Even without verifying as to whether the petitioner was constructing the culvert as per the permission accorded or a Bridge, the said notice was issued merely on the basis of a letter dated 21.02.2009 from the 2nd respondent and on the ground that the petitioner was constructing a bridge across Koundinya River and that the construction of the same without taking permission from the Irrigation Department is impermissible. It was purposely stated that the place where the Municipality has permitted the petitioner to construct a culvert is Koundinya River, when the same is only a small canal through which water flows to Koundinya River from other tanks like Royala cheruvu when there is excess water. This is a canal through which excess water from Royala cheruvu flows and joins Koundinya River.

The 1st respondent does not have any power to now direct the petitioner to stop the construction as she was having a valid building permission, and, as the said permission was given after obtaining no objection certificate from the revenue authorities. The vanka is not a major irrigation canal requiring the petitioner to obtain permission from the Irrigation Department.

constructing the culvert, the Municipality at the instance of the irrigation department cannot now direct the petitioner to stop the construction on the ground that it has given permission on the basis of the NOC issued by the Mandal Revenue Officer and not on the basis of the letter of the irrigation department. The petitioner is not raising a bridge; but is only constructing a culvert, which is not only for her exclusive use but also for the use of the public. The impugned notice is politically motivated; and it was issued, for extraneous reasons at the behest of the chairperson/3rd respondent, without jurisdiction or power and is illegal, arbitrary and against the principles of natural justice. Hence, it is liable to be declared as such and the respondents 1 and 2 are to be restrained from interfering with the construction work undertaken by the petitioner in pursuance of the building permission granted by the 1st respondent, vide proceedings B.A.No.137/06/G1 dated 23.09.2006.

4. The 1st respondent-Municipality had filed a counter affidavit stating that the fact that the husband of the petitioner had contested in the elections held in the year 2003 and that he was declared defeated by a margin of two votes after recounting have nothing to do with the present case and that the respondent-Municipality has given permission to the petitioner for construction of the building only, but, not for the construction of the culvert and that the petitioner has just commenced and carried on the construction of the building upto the basement level as on 21.06.2011 and that the building permit, which was given on 23.09.2006 had expired on 22.09.2009, and that, therefore, the writ petition is liable to be dismissed.

5. The then Executive Engineer of the Irrigation Department representing the 2nd respondent had filed a counter affidavit stating as follows: The averment in the writ petition that there is a small canal between the land of the petitioner and the MBT road near 23/8 KM on National Highway is not correct. The said canal is a big one of a width of 22 meters; there will be more flow of water when Rayala cheruvu overflows. The culverts at two places were constructed by the Punganur Municipality for the convenience of the public at large. No private people have constructed any

culvert over RCMV, which is also known as Koundinya River. The fact that the 4th respondent had issued the feasibility report after getting the opinion of the Deputy Executive Engineer, Panchayat Raj of Punganur and the further fact that the Punganur Municipality has not proposed to construct the subject culvert have come to the knowledge of this respondent after going through the records of the Punganur Municipality. The 1st respondent had addressed a letter dated 21.02.2009 to this respondent stating that no permission is accorded to the petitioner for construction of a bridge across the Koundinya River and had requested to take necessary action in respect of the illegal construction.

Accordingly, this respondent, i.e., the Deputy Executive Engineer, Irrigation had visited the place and instructed the petitioner not to make illegal constructions and had also directed to close the excavated pits on the very same day. The Deputy Executive Engineer, Panchayat Raj Sub Division has no jurisdiction to give any opinion and to permit the construction of culvert on the Koundinya River. The certificate dated 20.01.2005 is not tenable since he is not the competent authority. As per the letter dated 21.02.2009 addressed by the 1st respondent, no permission is accorded for construction of the culvert. It is true that there will be no water during the whole year but, there will be heavy flow of water in rainy season and also as and when the Rayala cheruvu over flows.

This court by interim orders, while suspending the notice of the 1st respondent dated 21.02.2009, had permitted the petitioner to make construction subject to her giving an undertaking that in the event the writ petition is dismissed, she herself would voluntarily remove the construction made by her and shall not claim any equities. The notice was issued not to make construction across Koundinya river/Rayala cheruvu Moravu Vanka near MPDO office, Punganur. The illegal construction of the culvert is highly objectionable as it causes obstruction for free flow of water from RCMV. The Koundinya River is under the control of this respondent's department. The letters and certificates were obtained by the petitioner only by misrepresenting the facts to the authorities, who have no power to issue such permission.

The culvert is only intended exclusively for the plot of the petitioner.

Bangalore and hence, do not require the way proposed by the petitioner. It is not correct to state that the culvert is also for the benefit of the public. The construction of the culvert on the Kaundinya River is illegal. The proposed culvert obstructs the flow of water from Rayala cheruvu and hence, causes damage to the property of the public in rainy season.

6. The writ petitioner having filed two reply affidavits in reply to the counters of respondents 1 and 2 had reiterated the case pleaded in the writ petition. In the reply affidavits, it is inter alia contended as follows: 'The 1st respondent cannot contend that no permission was granted for construction of the culvert or claim that in the plan, access is shown to the plot as approach road to the site of the petitioner. The name RCMV itself denotes that it is a small canal. Through the said canal, excess water from Rayala Cheruvu flows, when in floods, to Laddigam Cheruvu and it is not the Koundinya River. No documents are filed to show the origin and course of the River. RCMV is a canal and not a river and it takes water from Rayala Cheruvu, in case of over flow of water.'

7. The learned counsel for the parties made submissions in line with the pleadings, which are extracted supra, in detail.

8. In view of the pleadings and the submissions, the questions that would fall for determination are - 'Whether the writ petitioner is entitled to construct the culvert in question over the RCMV as being claimed by the writ petitioner?' And, if so, whether the notice issued is liable to be declared as illegal, arbitrary and against the principles of natural justice?' 8.1 I have carefully gone through the material papers. I have given earnest consideration to the submissions of the learned counsel for the parties. I have carefully perused the approved plan showing the proposed construction of Sri Krishna hotel and community hall-cum-conference hall, which was submitted by the petitioner to the Municipality for approval, and which was approved on 23.09.2006. I have also perused the copies of the sketch plan of Rayala cheruvu Vanka filed by the petitioner, the copies of the photographs

of the property in dispute and the plans of Field nos.119, 121, 124, 98 and of the check dam filed as additional material papers by the writ petitioner. 8.2 Be it first noted that this Court had granted the following interim order on 26.02.2009.

"The petitioner states that she had obtained permission from the Municipal authorities for construction of a building as well as culvert vide permission B.A.No.137/06/G1, dated 23.09.2006, and taking into consideration the fact that there is no road to her site and also adjacent sits, she was permitted to lay a road. Now, it is her grievance that the respondents issued the impugned notice stating that she is making illegal construction by digging earth and laying a bridge/approach road. The matter was moved yesterday by way of lunch motion and it was adjourned to today for getting instructions by the learned Standing Counsel for the first respondent Municipality. But, no instructions are reported by the learned Standing Counsel.

Having regard to the facts and circumstances of the case and considering the fact that the plan submitted by the petitioner was sanctioned and she was permitted to make constructions as per the said plan, I consider it appropriate to permit the petitioner to make constructions, subject to her giving an undertaking that in the event that the writ petition is dismissed, she herself will voluntarily remove the construction made by her and shall not claim any equities. Accordingly, the impugned order is suspended, subject to the above.

Post after four weeks for filing counter-affidavit." [Reproduced verbatim] 8.3 It is not in dispute that pursuant to the interim order, the culvert in question has already been constructed by the writ petitioner. It is also not in dispute that subsequent to the interim orders, the writ petitioner had also filed an undertaking affidavit on 26.02.2009 as directed in the interim orders of this Court. Therefore, the vital question that falls for consideration is - 'Whether in the facts and circumstances of the case, the culvert constructed by the writ petitioner can be allowed to stay or be directed to be removed at the cost of the petitioner and without claiming any equities, as per the interim orders and the undertaking given by the writ petitioner? This court on critical examination of the facts and the submissions has to now pass an appropriate order having

regard to the facts, the circumstances and the subsequent event. 8.4 I have critically analyzed the contents of the material documents. 8.5 The issues in the present writ petition revolve round the culvert in question over the RCMV, which was constructed by the writ petitioner, pursuant to the interim orders of this Court. 8.6 The writ petitioner contends that the culvert was constructed over RCMV, a vanka and not a river.

According to the writ petitioner, the RCMV is only a small canal passing through Government Poramboke land in front of the hotel-cum-conference hall, which was constructed by the petitioner in her property, and that water will not be present in the Morava Vanka during the whole year and that no water can be stored in it and that the name 'vanka' itself denotes that it is a canal and it is not a river much less Koundinya River and that the RCMV is a canal, through which excess water from Rayala cheruvu flows and joins Koundinya river.

In the reply affidavit filed in reply to the counter affidavit of the 2nd respondent, it is, however, urged by the petitioner that through this canal, excess of water from Rayala Cheruvu flows, when in floods into Laddigam Cheruvu and that this canal is not Koundinya River and that this canal takes water from Rayala Cheruvu, if there is any over flow of water from Rayala Cheruvu. On this aspect, the contention of the 2nd respondent is that RCMV is also known as Koundinya River and that RCMV is not a small canal and that it is a big one of a width of 22 meters and that there will be more flow of water when Rayala Cheruvu overflows.

The question 'whether RCMV is a canal or a river' apart, what is undisputed is that without permission from a competent authority, the subject culvert or any other culvert shall not be constructed over the subject RCMV or Koundinya river, by whatever name it may be called. Even according to the petitioner, she had obtained permission and approval for construction of her building and also the culvert by showing both of them in the site and building plan submitted for approval along with the application for permission and that permission and approval were granted in respect of the building subject to the condition that the petitioner shall construct the culvert.

'Whether the Municipality is competent or not to accord such permission for construction of a culvert' apart, since the petitioner claims that permission and approval were granted by the Municipality after obtaining feasibility certificate of the Tahasildar and the opinion of the Deputy Executive Engineer, Panchayat Raj Sub Division, the onus of proof is upon the petitioner to show that such permission for construction of the culvert was accorded by the Municipality. Therefore, the short question is as to whether the petitioner is having any permission from any authority, let alone a competent authority. The submission of the writ petitioner in this regard is as under: "Necessary approval and permission was granted for construction of the culvert by the 1st respondent-Municipality.

Before granting such permission for construction of culvert, the proposed building/site plan showing the proposed culvert, which was submitted by the petitioner, was got re-drawn by a licenced surveyor of the Municipality. Further, the Municipality has called for a feasibility report. A feasibility report was issued by the 4th respondent-Tahasildar after obtaining opinion from the Deputy Executive Engineer, Panchayat Raj sub-division. The Deputy Executive Engineer had caused an enquiry and had seen the pros and cons concerning the construction of a culvert and had opined that the construction of a culvert over RCMV is feasible if the vent provided is equal to full width of the river with a Deck slab height 1.2 meters over the adjacent road and if constructed at right angles to the flow direction near (2812-8) household.

In pursuance of the said report and after analyzing the spot, the 4th respondent (Tahasildar) had issued a certificate dated 20.01.2005 vide C.No.133 of 2005. In the said certificate addressed to the Commissioner of Punganur Municipality, the Tahasildar had specified that the construction of a culvert is very much necessary and that the same would facilitate free passage of vehicles and also in the vehicles joining the by-pass road and that the same would be very much accessible to the court premises and Dhobi colony road."

revenue authority and, hence, the respondents cannot be heard to say that there is no permission or approval for construction of the culvert.

On the other hand, the contention of the 2nd respondent, Deputy Executive Engineer, Irrigation Department is that the Deputy Executive Engineer, Panchayatraj and the Mandal Revenue Officer are not competent and do not have power or jurisdiction to issue the opinion and the feasibility certificate, which are being relied upon by the writ petitioner, and that the 1st respondent-Municipality is also not competent to approve any application for construction of a culvert over the RCMV/kaundinya River and that for construction of the culvert across the RCMV/Kaundinya River, which vests with Department of Irrigation and which is under the control of the Irrigation Department, necessary feasibility report and permission must be obtained from the competent officer of the Irrigation Department and that no private person is entitled to construct culvert across the RCMV, which is also known as Kaundinya River.

It is also the submission of the 2nd respondent that only after this writ petition is filed, the Irrigation Department has come to know about the feasibility report given by the Deputy Executive Engineer, Panchayatraj and the further fact that the proposed culvert is not being constructed by the Municipality. In fact, the Commissioner, Punganur Municipality had addressed a letter dated 21.02.2009 directing the writ petitioner to stop illegal constructions (Bridge or access to site). In the said letter, it was clarified that his office issued proceedings for building permission in G+1 Floors only, vide B.A.No.137/06/G1 dated 23.09.06 based on the NOC from the Mandal Revenue Officer, Punganuru, vide letter no.133/2005 dated 20.01.2005, but not to the bridge/construction in the Koundinya river.

The said Commissioner had also addressed a letter dated 21.02.2009 to the 2nd respondent (Deputy Executive Engineer, Irrigation Sub Division) stating that no permission is accorded to the petitioner for construction of Bridge across Koundinya River and requested to take necessary action in respect of illegal construction. 8.7 In this backdrop, a perusal of the approved plan of the writ petitioner would show that it contains an endorsement dated 23.09.

given only for construction of a building. It does not disclose that permission and approval were accorded for construction of the proposed culvert by the petitioner. The petitioner could not produce any document to show that Municipality had accorded permission for construction of the culvert over RCMV. Though it is pleaded in the writ petition that 'in the site plan, it is specified that permission is given to construct culvert across a catchment area, in the Government Poramboke to an extent of 804.72 Sq. meters with 12.19 meters wide culvert', no such site plan with the said specification is filed into Court. The approved plan, as already noted, does not contain any such specification in regard to permission given to construct the culvert.

Therefore, the petitioner, prima facie, could not show that permission and approval are accorded for construction of the subject culvert. Keeping aside the issue whether the Municipality was competent or not to issue any permission, it is manifest that the petitioner could not establish that the Municipality accorded permission or approval for construction of the culvert. It is not the case of the writ petitioner that permission was obtained from a competent officer of the Irrigation Department or any other competent authority.

8.8 Now, all the official respondents would contend that Irrigation Department is only competent to accord permission for construction of a culvert over RCMV/kaundinya River and that the permission and approval are accorded by the Municipality for construction of the building only in the land of the petitioner, but not for construction of the culvert over RCMV/Kaundinya River. The 2nd respondent further contends that it is not permissible for a private person to construct a culvert and that the officer of the Panchyat Raj Department and the Tahasildar of the Revenue Department are not the competent authorities to issue any opinion or certificate in regard to permission for construction of a culvert. The learned Government Pleader appearing for the 2nd respondent had placed reliance on the following unreported decisions:

(i) D.Venkataraju and others v. The State of Andhra Pradesh rep. by its Principal Secretary to Government, Irrigation

Department, Secretariat, Hyderabad[1] (ii) Choppa Laxmikar Reddy and others v. Executive Engineer, Irrigation & CAD and others[2] I have perused the citations. It is pertinent to mention that the learned counsel for the writ petitioner submitted that the ratios in the cited decisions are not applicable to the facts of the present case. She sought to distinguish the facts of the present case from the facts of the cited cases on the ground that in the cited cases, the subject matter is a temporary bridge whereas in the instant case, the subject matter is a culvert and not a bridge and that there is a lot of difference between the Bridge and a culvert proposed over a canal.

However, the citations are relied upon in support of the contention of the 2nd respondent that in all cases of construction of bridges or culverts or temporary bridges/bridges over rivers or canals, permission is required to be obtained from the competent authority of the Irrigation Department. Further, even in the letter dated 05.01.2005 addressed by the Deputy Executive Engineer, Panchayat Raj sub Division to the Tahasildar while stating about the feasibility the reference was made to the RCMV as a River. Having regard to the facts of the case, this Court is of the well-considered view that for construction of the subject culvert, necessary permission is to be obtained from the competent officer/authority of the Irrigation Department and not from the Municipality or an officer of the Panchayat Raj Department and the Tahasildar.

8.9 However, the writ petitioner, pursuant to the interim orders of this Court which are stated supra, had proceeded to construct the culvert and such construction is always subject to the undertaking given by the writ petitioner to the following effect:

"I submit that the above Writ Petition came up for admission on 25-22009 and was posted to 26-2-2009 for instructions. On 26-2-2009, the Hon'ble Court after hearing my counsel and the standing counsel for Punganur Municipality, was pleased to suspend the impugned order on condition of furnishing an undertaking that I will remove the culvert with my own costs, in case the Writ Petition is dismissed and if the construction is found to be illegal, without seeking any equities. Hence, I hereby submit this affidavit as an undertaking before this Hon'ble

court. I hereby undertake to remove the culvert with my costs, and will not seek any equities, in case the Writ Petition is dismissed and the construction is found to be illegal."

9. Having regard to the reasons already assigned, this Court finds that the construction of the culvert was made without permission either from the Municipality or any other competent authority like the officer of the Irrigation Department. As a sequel to the reasoned findings, it must be held that the writ petition is devoid of merit. The questions are accordingly answered against the petitioner. Be that as it may. Nevertheless, since the culvert is already constructed, this Court is of the well considered view that while dismissing the writ petition, certain directions, as stated infra, can be given in the interests of justice.

10.

Accordingly, the Writ Petition is dismissed with the following observations and directions:- Since the culvert is already constructed without obtaining the required permission from any competent authority, the writ petitioner, if so advised and if so desires, may submit a written representation within three weeks from the date of the receipt of a copy of this order to the competent officer/authority of the concerned Division of the Irrigation Department for retroactive/ex post facto approval of the action of the petitioner in regard to the construction of the subject culvert and seek ratification of the said action by undertaking in the representation to be submitted that she would follow the necessary, reasonable and lawful terms and conditions that may be imposed while granting the ratification sought for.

On such representation made, if any, by the petitioner, the same shall be considered and disposed of by the competent authority concerned within two months from the date of the receipt of such representation, however, in strict accordance with the procedure established by law and after satisfying itself in regard to the pros and cons, the quality of the construction and other technical requirements.

abiding the undertaking in the affidavit filed by her before this Court. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this writ petition shall stand closed.

_____________________ M. SEETHARAMA MURTI, J 20th January, 2016 RAR [1] W.P.No.24766 of 2014, dt.09.12.2014 [2] W.P.No.19730 of 2009, dt.03.02.2010