Potla Venkateswarlu, vs The State Of Andhra Pradesh
2022 Latest Caselaw 1608 AP

     HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

             WRIT PETITION No.4518 of 2022

ORDER:

The petitioner is a resident of Thumrukota Gram

Panchayat, Rentachintala Mandal, Guntur District.

2. It is the case of the petitioner that the 4th

respondent-Thumrukota Gram Panchayat, by a resolution dated

12.11.2021 had granted land admeasuring Ac.0.09750 cents in

Sy.No.344-B to members of unidentified individuals who belong

to the Muslim Minority Community, for construction of a

Shadikhana. The petitioner contends that such a grant of land

is not permissible as there is a community well in the said land

and the well, which serves the water needs of the people in

times of drought, cannot be damaged by any construction made

in such lands.

3. The 4th respondent has filed a counter affidavit. In

this counter affidavit, it is stated that the well mentioned by the

petitioner had dried up a long time back and was posing a

danger to the cattle and children in the area. Due to which, this

well had been filled up earlier with earth with a view to

construct a Shadikhana. The 4th respondent also contended that

the resolution passed by the Panchayat on 12.11.2021 only

accepts the request to construct a Shadikhana and cannot be

treated as an allotment of land for the Shadikhana.

4. Sri I.Koti Reddy, learned standing counsel for the 4th

respondent-Gram Panchayat submits that a perusal of the

resolution would show that there has been no grant of land to

anybody and only a general approval of the proposal for

construction of a Shadikhana has been given. He would submit

that as of now there is no well existing in the land as it has been

filled up. He would submit that there are no merits in the case

filed by the petitioner and the same requires to be dismissed.

5. Sri K.Indraneel Babu learned counsel, appearing for

the petitioner would submit that the resolution while ostensibly,

granting permission for construction of a Shadikhana is actually

a resolution allotting land for such purpose. He would submit

that such an allotment is not permissible. He would also rely

upon the decision of the Hon'ble Supreme Court in the case of

Hinch Lal Tiwari vs. Kamala Devi and Others1., to contend

that any water body including a well cannot be used for any

other purpose and even if the said water body falls into disuse

the same would only have to be revived and restored and no

other activity can be taken up in the said land.

6. A perusal of the resolution dated 12.11.2021 would

clearly show that it is only a resolution permitting the

construction of a Shadikhana. It is neither a resolution allotting

any land nor can such an intent be read into that resolution. In

the circumstances, the contention of learned counsel for the

petitioner to that extent would have to be negatived. The Hon'ble

(2001) 6 SCC 496

Supreme Court in Hinch Lal Tiwari vs. Kamala Devi and

Others was considering the case of water bodies such as lakes,

tanks and ponds which are nature's bounty and which cannot

be altered or used for other purpose as any such usage could

lead to ecological disaster. The finding in the said judgment is

that an existing pond was sought to be allotted for construction

of house building etc. In the said circumstances, the Hon'ble

Supreme Court had observed that such allotments and change

of usage of existing natural water bodies and tanks cannot be

allotted for other purpose in non-abadi sites.

7. In the present case, the well is situated in a

populated area and has fallen in disuse. It is not a natural water

body whose closure is going to affect the ecological balance of

the area. In the circumstances, the law laid down by the Hon'ble

Supreme Court would not be applicable to the present facts of

the case.

8. As far as permission for construction of Shadikhana

is concerned, this Court would agree with the contention of the

learned counsel for the petitioner that a Gram Panchayat

resolution accepting a proposal for construction cannot be

treated as a permission given under the provisions of the Act.

The Rules governing grant of permissions under the Panchayat

Raj Act have been issued under G.O.Ms.No.67, (PR & RD) dated

26.02.2002. These rules require any proposed construction to

be taken up only after appropriate applications in the prescribed

form along with relevant documents are presented to the Gram

Panchayat and thereafter, building permission is given in the

prescribed form. An informal approval by way of a Gram

Panchayat resolution cannot take the place of a permission that

is to be given in a prescribed manner under the rules. The

informal permission given by the gram panchayath in the above

manner cannot be used for constructing a shadikhana.

9. In the circumstances, this writ petition is disposed

of leaving it open to the 4th respondent-Gram Panchayat to

consider any application filed for construction of a Shadikhana

in accordance with the rules and to pass orders on such

application in accordance with law. Till then the 4th respondent

gram panchayath cannot permit the construction of the

shadikhana.

There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

____________________________ R. RAGHUNANDAN RAO, J.

01.04.2022 RJS

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

WRIT PETITION No.4518 of 2022

01.04.2022

RJS