Andhra Pradesh High Court - Amravati
B.Brahmananda Reddy, vs The State Of Andhra Pradesh, on 5 March, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.5196 OF 2020
ORDER:
This writ petition is filed to issue Writ of Mandamus, declaring the action of the third respondent in trying to dispossess or remove the petitioner's mineral water plant situated at D.No.11-42 in Survey No.406/C in 11th Ward of Bethamcherla, Kurnool District as arbitrary, illegal and contrary to Articles 21 and 300-A of the Constitution of India and consequently direct the respondents not to interfere with the mineral water plant situated at D.No.11-42 in Survey No.406/C in 11th Ward of Bethamcherla, Kurnool District.
The petitioner is the owner of an extent of 444-09 sq.yds with mineral water plant situated at D.No.11-42 in Survey No.406/C in 11th Ward of Bethamcherla, Kurnool District. With a view to provide potable drinking water to the residents of Bethamcherla Village, the petitioner started a mineral water plant in his own site with his own funds, after obtaining all permissions from the concerned departments and has been supplying drinking water with a view to do service. As the petitioner belongs to Telugu Desam Party and at the instance of local M.L.A, the third respondent is trying to take possession of mineral water plant from the petitioner without following any procedure and without any manner of right. Hence, the action of Respondent Nos. 2 & 3 is questioned on the ground that their acts are without any statutory support and requested to issue direction as prayed for.
MSM,J WP No.5196 of 2020 2 During hearing, learned counsel for the petitioner contended that the petitioner has obtained necessary permission from the concerned authorities, including registration with Executive Officer of Bethamcherla Gram Panchayat vide Certificate dated 16.08.2016 expressing No Objection to provide service connection to the house of the petitioner. Similarly, Common Application Form-I, Part A for establishment was also submitted to the Department of Industries, obtained permission by paying necessary fee and rent for the mineral water plant and that the respondents have no authority to interfere and take possession of the mineral water plant. Hence, it is contended that the action of the respondents is illegal and arbitrary.
Whereas, learned Standing Counsel for Bethamcherla Gram Panchayat opposed the petition on the ground that the petitioner has not obtained any permission from the Gram Panchayat for establishing such mineral water plant and in these circumstances, the authorities can interfere and can take possession of the water plant.
Establishment of mineral water plant is governed by the provisions of The Andhra Pradesh Water, Land and Trees Act, 2002 (for short 'WALTA Act '). According to the Rules under WALTA Act, it is the duty of the petitioner to inform establishment of water plant to the panchayat and the petitioner is required to obtain permission from the competent authority and the secretary cannot seize and close the mineral water plant in the site. At best, the Secretary of Gram Panchayat may take appropriate action for violation of Section 120 of Panchayat Raj Act which deals with the power of the MSM,J WP No.5196 of 2020 3 Panchayat to take appropriate action in the event of violation of any bye-laws. According to Section 120(1) of the Panchayat Raj Act, every person intending (a) to construct or establish any factory, workshop or work place in which it is proposed to employ-steam power, water power or other mechanical power or electrical power; or (b) to install in any premises any machinery or manufacturing plant driven by steam, water or other powers as aforesaid, not being machinery or manufacturing plant exempted by rules made in this behalf, shall, before beginning such construction, establishment or installation, obtain the permission of the Gram Panchayat in the prescribed manner for undertaking the intended work.
But, in the present facts of the case, it is not the case of the respondents that the petitioner violated Section 120 of the Panchayat Raj Act. Therefore, the Secretary of the Gram Panchayat can proceed if the petitioner violated Section 120 of the Panchayat Raj Act by following necessary procedure i.e. by issuing a show cause notice. But, it is not the case of the respondents in the present facts.
As on date, no notice was issued to the petitioner by the respondents. According to Section 8 of WALTA Act:
(1) All ground water resources in the State shall be regulated by the Authority, subject to any general or special directions issued in this behalf by the Government.
(2) On and from the date of commencement of this Act, the owners of all the wells including those which are not fitted with power driven pumps and water bodies in the State, shall register their wells/water bodies with the Authority in such manner as may be prescribed.
MSM,J WP No.5196 of 2020 4 According to Section 10 of WALTA Act, permission for well sinking near drinking water source is also required. But Section 15 of WALTA Act deals with closure of wells.
(1) Wherever it appears to the Authority that any well has been sunk or is being sunk or water has been extracted or is being extracted in contravention of any of the provisions of this Act, the Authority or any officer duly authorised by it in this behalf, may enter upon that land, remove obstruction, if any, close the pumping of the water, disconnect the power supply, seize any material or equipment used in connection with such extraction of water and take any such action, as may be required to stop such extraction and may by order require the owner or the person in possession of the well to close or seal off the well at his expense and in such manner as the Authority may specify in such order and such owner or person shall comply with such order.
(2) Where such owner or person fails to comply with any order made under sub- section (1), the Authority may after giving such owner or person due notice in that behalf enter upon the land and close or seal off the well and the cost incurred thereof shall be recoverable from such owner or person as arrears of land revenue.
Therefore, the authority as defined under Section 2 (1) read with Section 3, alone is competent to take action for violation of any provisions of WALTA Act. Section 7 deals with constitution of water, land and trees which is referred under sub-section (1) of Section 2 of WALTA Act and such authority alone is competent to take action for violation of provisions of WALTA Act, but not the Panchayat Secretary. Therefore, the contention of the petitioner that the Panchayat Secretary has no authority to take action under WALTA Act is sustained while rejecting the contention of the learned Counsel for respondent.
MSM,J WP No.5196 of 2020 5 The learned Assistant Government Pleader for Panchayat Raj, contended that when an appeal is provided under Rule 33 (1) of WALTA Act, which is efficacious remedy, the petitioner cannot approach this Court, invoking extraordinary jurisdiction of judicial review under Article 226 of Constitution of India. No doubt an appeal is provided under Rule 33 (1), only against the order passed by the designated officer. The respondents are not designated officers under the Rules and no appeal lies under Rule 33(1) against the order passed by the Panchayat Secretary or notice issued by Panchayat Secretary. Therefore, the contention of the learned Government Pleader for Panchayat Raj is hereby rejected, since no appeal is provided against the order passed by Panchayat Secretary under Rule 33(1) of WALTA Rules.
The action of the respondents in the writ petition is challenged on the ground that action of the respondents is without any authority under law and also violative of principles of natural justice. Trying to dispossess or remove the petitioners mineral water plant by the respondents without affording any opportunity to the petitioner to explain any violation of principles of natural justice. On the ground of violation of principles of natural justice and lack of authority, the petition is liable to be allowed declaring the action of the respondents as illegal, arbitrary and violative of principles of natural justice and lack of authority.
MSM,J WP No.5196 of 2020 6 In the result, writ petition is allowed, declaring the action of the respondents is without any authority under law and also violative of principles of natural justice. No costs.
Consequently, miscellaneous applications pending if any shall stand closed.
__________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:05.03.2020 sp