HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.15246 of 2014 Date: 19-09-2014 Between:
Toka Samudralu and 7 others .. Petitioners AND The Government of Andhra Pradesh, Represented by its Secretary, Department of Irrigation, Secretariat, Hyderabad and 13 others .. Respondents HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.15246 of 2014 ORDER:
This writ petition is filed for a mandamus declaring the action of the respondents 2 to 9 in proposing to construct a bridge across Surepalli Medium Drain at KM 1.350 in Bhattiprolu Mandal, Guntur District without considering the representation of the petitioners dated 03-03-2014 as arbitrary and illegal.
2. The case of the petitioners is that all the petitioners are residents of Rachuru village, Bhattiprolu Mandal, Guntur District, and are farmers by avocation and belonged to backward class and that they owned small extents of wet lands along with the said Surepalli Medium Drain and cultivating the lands from a long time. It is stated that for approaching the above said lands, they have to cross the said Surepalli Medium Drain and they do not have proper access during most of the year. In the year 2009-2010, the respondents have decided to modernize Krishna Delta and as part of the same, it is learnt that Surepalli Medium Drain is being widened and also a bridge across the said Surepalli Medium Drain was also sanctioned at KM 1.500 at a cost of about Rs.30.00 lakhs, but no provision for access to the said bridge has been made in the said scheme as on either side of KM 1.500, private patta lands are existing and the contract was awarded to the 13th respondent-M/s. SEW Infrastructure Limited under package No.25/DR/KDS/G/2009-10. It is also stated that during the said process, the respondents 10 to 12 and their joint family members, submitted a representation on 06-04-2013 to the respondents requesting for shifting of the drain from KM 1.500 to 1.350 alleging that there is no access to the bridge if constructed at KM 1.500, as they owned nearly 50 acres of lands in Survey No.90 to 101, 103 to 107 and 222 on either sides of the said Surepalli Medium Drain at KM 1.350 and that acting on the said representation, the 6th respondent shifted the construction of the said bridge from KM 1.500 to KM 1.350 vide proceedings in reference Memo No.SE/DB/JTO-1/31ER, dated 17-07-2013 and were about to commence the construction. It is further stated that the petitioner and others have raised objections with the 2nd respondent vide representation dated 30-07-2013 stating that the said proposed bridge KM 1.350 also has no access as the lands on both sides of the said bridge are patta lands owned by the respondents 10 to 12 and their family members and that acting on the said representation dated 30-07-2013, the 2nd respondent directed the 3rd respondent to enquire and take appropriation decision on the said issue and consequently, the 3rd respondent inspected the site and found that though the bridge at KM0.350 was proper, but the respondents 10 to 12 raised objection stating that the lands in Survey Nos.88 and 96 are though Government lands were assigned to schedule casters farmers and there would be no access to the said bridge at 0.350 also. Thereupon, the 3rd respondent requested for a survey by the 5th respondent- Tahsildar, as to the said objection and the 5th respondent conducted enquiry and submitted a report on 30-06-2013 asserting that part of the said extents are under assignment and occupation of members belonging to Scheduled Caste and that the enquiry conducted by the 5th respondent and the consequential report of the 5th respondent are without notice to the petitioners and the affected farmers. It is further stated that basing on the said report dated 03-06-2013, the 6th respondent addressed letter dated 22- 02-2014 stating that if the said occupants of the Government land in Survey Nos.88 and 96 give consent for forming an approach through the said land up to the existing donka, they would examine the construction of the bridge at KM 1.350 and that when the respondents were again about to start the construction at the disputed point of KM 1.350, the petitioners submitted representation to the District Collector on 03-03-2014 and requested for constructing the said bridge at KM 0.350 as no consent of any individual is required and no land acquisition proceedings is involved and consequently, the said construction was stopped and the said representation is pending with the 2nd respondent. It is further stated that when the 3rd respondent with his subordinates commenced the digging of foundations of the said bridge at the disputed point of KM 1.350, the petitioners submitted an application on 02-08-2013 to the 7th respondent under Right to Information Act, 2005 for furnishing concerned documents and obtained the same. It is further stated that even the 14th respondent has also passed resolution that the bridge should be constructed over the cart track in between Sy.Nos.88 and 96. Aggrieved by the action of the respondents 2 to 9 in proposing to construct a bridge across Surepalli Medium Drain at KM 1.350 in Bhattiprolu Mandal, Guntur District without considering the representation of the petitioners dated 03-03-2014, the present writ petition is filed.
3. Initially, this court ordered notice to respondents 10 to 12 and even though the notices were served on them none appeared for them, as such this Court granted interim stay on 17-06-2014.
4. Respondents 6 to 9 filed their counter stating that the Government has approved Modernization programme in Krishna Delta System under Package No.25/DR/KDS/G/2009-10 on Bhattiprolu Main Drain Basin and a single lane bridge was sanctioned at KM 1.500 Surepalli Medium Drain and at this chainage of the Medium Drain, there is one Irrigation Channel named as “Rachur Direct Channel” which is crossing through an open through aqueduct, serving an ayacut of 576 acres of wet land belongs to Rachur village and if the foundations for the above bridge was excavated at this point, the existing Irrigation Structure i.e. aqueduct definitely collapse causing non-supply of water to the entire 576 acres of wet crops under the above Irrigation Channel. They stated that as there is no road/donka crossing at this point, the villagers of Pallekonda have pleaded to construct the bridge nearby i.e. at KM 1.350 of Surepalli Medium Drain for which, the ayacutdars, the respondents 10 to 12, on both sides of the drain have voluntarily offered 9.0 width of their own lands and that the respondents have formed road in the above land from Pallekonda to Dhlipudi Donka on the north side along Surepalli Medium Drain and that the site was inspected by the higher officials and necessary orders were passed by shifting the structure from KM 1.500 to KM 1.350 of Surepalli Medium Drain vide Memo No. Superintending Engineer/DB.JTO-1/319ER, dated 17-07-2013. They further stated that the Regulator-cum-single lane Bridge at KM 0.000 and Single Lane Bridge at KM 2.800 of Surepalli Medium drain was sanctioned in this package and execution of these two structures were almost completed and for starting the execution of the structure at KM 1.350 was opposed by the villagers of Rachuru and requesting to construct the same at KM 0.350 of Surepalli Medium Drain connecting the S.Nos.88 of Pallikonda village land S.No.96 of Rachuru village duly passing resolution in their Gram Panchayat, whereas the president of Pallekonda Gram Panchayat has represented in Prajavani petitions on 16-09-2013 and 20-01- 2014 to the District Collector Guntur, to construct the above structure at KM 1.350 only. It is further stated that the Survey Nos.88 and 96 of Pallikonda and Rachuru villages are surveyed by the Mandal Surveyor for field boundaries and it was observed that the entire land in these two survey numbers are cultivating some other crops and that both these two survey numbers are located not adjacent to each other and that the Tahsildar, Bhattiprolu Mandal vide Rc.No.273/2013, dated 03-06-2013 has given report that part of both survey numbers lands were assigned for some people and the balance land on both survey numbers are occupied and cultivated by some scheduled caste people and some of these lands are encroached by poor people and represented not to construct the structure at KM 0.350 as they will lose their little income from that land which will hamper their lively hood very highly and that it is not possible to construct the structure at KM 0.350 duly connecting the Survey Nos.88 and 96 and that newly constructed bridge at KM 0.000 of the drain was also within 0.500 KM distance from the requisite site of Rachuru village and the same information was also intimated to the Rachuru villagers on their Prajavani petition to the District Collector, Guntur. It is further stated that the Superintending Engineer addressed letter dated 22-02-2014 to the Ex-member of ZPTC stating that the lands in Sy.Nos.88 and 96 are assigned to third parties and if they give their consent, the possibility of construction of bridge at 0.350 would be examined and the land holders have not given their consent. It is further stated that the construction activity was already commenced and almost 55-60% of the work has been completed and that the resolution of the Gram Panchayat would not have any impact on the decision of the authority to shift the construction of bridge. The respondents further stated that the respondents 10 to 12 have voluntarily surrendered their lands vide notarized affidavits and that they have provided access which is sufficient for transport of vehicles and that huge expenditure would be incurred if the bridge is constructed at 1.350 KM and the respondents 6 to 9 denied that the same is for the benefit of respondents 10 to 12 and sought for dismissal of the writ petition.
5. The respondents 10 to 12 filed counter reiterating the contentions of the respondents 6 to 9. It is stated that the respondents 10 to 12 undertake to provide access to the bridge on both sides by providing 9ft. width on the northern side of the drain from Dhullipudi to Pallekonda donka and in the southern side from the structure and all along the Surepalli Medium Drain common road to all the users and that the respondents 10 to 12 undertake that they would not claim any compensation or any benefits for the land voluntarily given by them and the respondents would also execute registered document in favour of the Government foregoing their right over the land provided for access to the bridge if necessary. It is also stated that the petitioners have no locus standi to challenge the policy decision of the departments and that the decision is in the best public interest and would in no way cause any hardship or damage to the petitioners and that the petitioners have voluntarily given up their lands at the proposed chainage. The respondents 10 to 12 sought for dismissal of the writ petition.
6. Learned counsel for the petitioners vehemently contends that shifting of construction of bridge at 1.50 KM from 0.350 KM is only for the benefit of respondents 10 to 12 and the proposed bridge cannot be constructed at the expense of State Exchequer for the benefit of respondents 10 to 12. He contends that the action of the respondent authorities in shifting the bridge from 0.350 KM to 1.350 KM is arbitrary and malafide benefiting the respondents 10 to 12. He further contends that the same situation exists at 1.350 KM as that of at 0.350 KM, as such, by shifting the same from 0.350 KM to 1.350KM would not serve any purpose. He further contends that the construction of bridge at 1.350KM without providing legally valid access is arbitrary and illegal and that the private lands of respondents 10 to 12 are situated on either side of the bridge and they have not surrendered the lands as per law and only consented for construction of bridge on the notarized non-judicial stamp papers, which cannot be deemed to be valid consent in favour of the Gram Panchayat so that all the farmers and others will have access to the bridge. He further contends that though the bridge is 4.5 metres wide i.e. 15ft., the respondents 10 to 12 have only given the purported consent only for 2.75 metres (9 feet) that too not up to the Dhulipudi to Rachur road as such incurring of such huge expenditure from the public funds for the benefit of only respondents 10 to 12 is arbitrary and malafide action of the respondents 6 to 9. He further contends that any arbitrary action on the part of the Government cannot be countenanced and the courts should declare such action as arbitrary. In support of his contentions, the learned counsel for the petitioners relied on Kumari Shrilekha Vidyarthi and others v.
[1]
State of U.P. and others , A.P. Aggarwal v. Govt. of NCT of
[2]
Delhi and another , and Man Singh v. State of Haryana and
[3]
another .
7. Learned Government Pleader for Irrigation contends that the respondents authorities have considered the options for shifting the structure from KM 1.500 to KM 1.350 of Surepalli Medium Drain by taking various factors into consideration. More so, the respondents 10 to 12 have also given consent for providing road for access to the said bridge, more so, the respondents authorities, who are technically qualified have considered various options and shifted the construction of bridge from KM 1.500 to KM 1.350. He also contends that there was Rachur Direct Channel crossing the Drain through an open trough aqueduct serving an ayacut of 576 acres of wet land belongs to Rachur village and if the foundations for the above bridge was excavated at this point, the existing irrigation structure i.e. aqueduct definitely collapses causing non-supply of water to the entire 576 acres of wet crops under the above irrigation channel. He further contends that the regular-cum-single lane bridge at KM 0.000 and Single Lane Bridge at KM 2.800 of Surepalli Medium drain were sanctioned and execution of these two structures were almost completed and that the newly constructed bridge at KM 0.000 of the drain is very near to 0.350 chainage. He vehemently contends that the petitioners have no enforceable right to state that the bridge has to be constructed at a particular place.
8. Learned counsel for the respondents 10 to 12, while reiterating the submission of the learned Government Pleader, stated that the respondents 10 to 12 will execute necessary documents for conveying the lands which are proposed to be surrendered and that they undertake to provide the same as road for having access at KM 1.350.
9. In the instant case, though the petitioners himself prayed for writ of mandamus declaring the action of the respondents 2 to 9 in proposing to construct a bridge across Surepalli Medium Drain at KM 1.350 in Bhattiprolu Mandal, Guntur District without considering the representation of the petitioners dated 03-03-2014, the learned counsel for the petitioners confined his arguments to the issue that the respondents 6 to 9 at the expenses of the State cannot construct the bridge at 1.350 KM only for the benefit of the respondents 10 to 12. But, in the counter, the respondents 10 to 12 have categorically stated that when the chainage was proposed on 1.350 KMs, they voluntarily given their consent to forego their lands which is necessary for access of general public to the bridge and submitted notarized affidavits to the said effect. The respondents 10 to 12 have also categorically stated that they undertake to provide access to the bridge on both sides by providing 9 feet width on the northern side of the drain from Dhullipudi to Pallekonda donka and that they further undertake that they would not claim any compensation or any benefits for the land voluntarily given by them. A perusal of the counter affidavits clearly shows that the respondent authorities have considered various aspects for shifting the bridge from 1.500KMs to 1.350 KMs, while considering the representation of the villagers. Though the learned counsel for the petitioners cited various precedents stating that the action of the respondent authorities have to be struck down on the ground that they are found to be arbitrary, there is no dispute regarding the same, but as contended by the learned Government Pleader for Irrigation and the learned counsel for the 3rd respondent, the petitioners have no legal right to state that the bridge has to be constructed at a particular place. The pleadings of the respondents 6 to 9 and the respondents 10 to 12 clearly go to show that the respondents have considered several aspects including the availability of approach road and taken a decision for shifting the construction of the bridge. In the counter affidavit of respondents 6 to 9 in para 4 (j), it is stated that respondents 10 to 12 have voluntarily surrendered their lands and they have submitted notarized affidavits to the said effect, if required necessary registered documents would be executed for conveyance of lands from respondents 10 to 12 and it is also stated that respondents 10 to 12 have provided access which is sufficient for transport of vehicles and that huge expenditure would incurred, if the bridge is constructed at 1.350 KMs and that the same is for the benefit of respondents 10 to 12 is devoid of any merit and that 9 feet width provided by the respondents 10 to 12 is enough for transport of vehicles. There cannot be any roving enquiry in a writ jurisdiction whether the action of the respondent authorities in shifting the site for construction of bridge is justified or not. As such, the decisions relied on by the learned counsel for the petitioners are not relevant for deciding the issue in the writ petition. The reasons given by the respondents 6 to 9 for shifting the bridge in the counter affidavits cannot be rejected on the ground that different view is possible and it is for the respondent authorities to consider the technical aspects and form an opinion and I do not think that this court should conduct a roving enquiry and take a different view.
10. In view of the above facts and circumstances and the stand taken by the respondents 6 to 9 in the counter affidavit, I do not see any valid reason in interfering with the decision taken by the authorities by exercising power of judicial review under Article 226 of the Constitution of India.
Accordingly, the writ petition is dismissed without costs. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
A. RAJASHEKER REDDY, J Date: 19-09-2014
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[1] (1991) 1 Supreme Court Cases 212
[2] (2000) 1 Supreme Court Cases 600
[3] (2008) 12 Supreme Court Cases 331