Andhra Pradesh High Court - Amravati
Anjali Charitable Trust, vs The State Of Andhra Pradesh, on 13 November, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.16060 of 2019
ORDER:
1. This writ petition under Article 226 of Constitution of India is filed, challenging the notice in Roc.No.01/2019 dated 27.09.2019, issued by 5th respondent, declare the same as illegal, arbitrary and without any authority, consequently set aside the same.
2. The petitioner is alleged to be Charitable Trust and Pratti Ravi Kiran Kumar is the founder trustee. The main object of trust is to fund poor pupil and propagation of education and such other activities including providing roads, bridges and safe drinking water facilities in the rural areas. To achieve the objects, the petitioner trust wanted to start R.O water plant at Nudurupadu village, as the water available in the village is hard water. With the noble idea, the petitioner trust established R.O water plant at Nudurupadu village by spending approximately an amount of Rs.4,00,000/- and started supplying, drinking water to the people of Nudurupadu village from 15.09.2019.
3. Though there is a public drinking water system in the village, the said water being supplied is not useful for domestic purpose and not fit for human consumption. With a view to provide pure drinking water to the people of Nudurupadu village, the petitioner trust started R.O water plant and supplying water to nearly 1000 people in the village by collecting, nominal amount of Rs.5/- per 20 liters of potable water. The trust is a non profitable trust, to meet the expenses of R.O water plant, the petitioner trust is collecting only Rs.5/- per 20 liters.
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4. While the matter stood thus, at the instance of some local leaders, 5th respondent issued notice Roc.No.01/2019 dated 27.09.2019, received by the petitioner on 03.10.2019, alleging that the petitioner is running mineral water plant, without any permission from the government and doing business and the same is contrary to the provisions of The Andhra Pradesh Panchayat Act, 1964 (for short 'the Act') and Andhra Pradesh Water, Land and Trees Act, 2002 (for short 'WALTA Act') and directed the petitioner to close the water plant or else the water plaint will be closed by 5th respondent.
5. The main contention of the petitioner is that the 5th respondent has no authority to issue such notice under the WALTA Act and thereby notice itself is illegal without any authority of law, consequently requested to set aside the same, while declaring the notice as illegal and arbitrary.
6. During hearing, the learned Counsel for the petitioner has drawn the attention of this Court to various provisions of WALTA Act, more particularly Sections 8, 10, 15 and Rule 10 of the Rules framed under the Act, to substantiate his contention that only the authority under the Act alone is competent to take appropriate action for closure of the wells under Section 15 of WALTA Act, but not the Panchayat Secretary and he placed reliance on judgment of Single Judge of High Court of A.P at Hyderabad in W.P No.34352 of 2014 dated 09.02.2016 between T. Sanjeevu v. State of Andhra Pradesh and others in support of his contention.
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7. Whereas the learned Assistant Government Pleader for Panchayat Raj, contended that appeal is provided under Rule 33 (1) of the Rules under WALTA Act and the Panchayat Secretary not only pointed out violation of the Act, but also WALTA Act. Even if the Secretary is not competent to take action under the provisions of WALTA Act, 5th respondent is entitled to take action under the provisions of the Act and thereby, the notice cannot be declared as illegal and arbitrary. The Standing Counsel for Panchayat Raj Sri Idamakanti Koti Reddy, contended that even to erect a well using machinery, permission under Section 120 of the Act is required and in the absence of any permission, the Panchayat Secretary is competent to take necessary action for removal of mineral water plant, running without permission and it cannot be held that the notice was issued without any authority of law and requested to pass appropriate order.
8. As seen from the notice in Roc.No.01/2019 dated 27.09.2019, issued by Panchayat Secretary, Gram Panchayat, Nudurupadu village, it is evident that the Panchayat Secretary not only pointed out erection of water plant, without obtaining any permission from the government and carrying business, contrary to the provisions of the Act, and provisions of WALTA Act, with a direction to close the water plant or else the Secretary will seize and close the water plant from the government side. Therefore, the 5th respondent intends to take action not only for violation of provisions of the Act, but also for the violation of provisions of WALTA Act, 2002. According to, Section 120 of Panchayat Raj Act:
4 MSM, J wp_16060_ 2019 (1) Every person intending,- (a) to construct or establish any factory, workshop or work-place in which it is proposed to employ-steampower, 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.
A pre-condition to install such machinery in the premises, is to obtain permission for such erection of machinery etc. It is not the case of the petitioner that any permission was obtained as required under Section 120 of A.P Panchayat Raj Act.
9. At this stage, the Counsel for the petitioner Sri C. Prakash Reddy, during dictation, intervened and brought to the notice of the Court that he applied for permission under Section 120 of the Act, but 5th respondent did not pass any order on the application. Thereupon the inaction of 5th respondent was complained to the higher authorities, who in turn directed the 5th respondent to pass appropriate orders on the application. But this plea was not raised in the entire affidavit and in the absence of any plea, it is difficult to accept such contention when raised while dictating the order. Therefore, this contention is rejected.
10. On overall consideration of the material on record, absolutely there was no permission obtained under Section 120 of the Act. Therefore, the Panchayat Secretary is competent to take action for violation of Section 120 of the Act. Hence, the contention of the petitioner that the Panchayat Secretary issued notice, without any authority under law is rejected.
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11. Other violation pointed out in the notice is violation of provisions of WALTA Act. 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.
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 6 MSM, J wp_16060_ 2019 sustained while rejecting the contention of the learned Counsel for 5th respondent.
12. The learned Assistant Government Pleader for Panchayat Raj Sri T.N.M Ranga Rao, 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 made by the designated officer. 5th respondent is not a designated officer 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.
13. The petitioner though placed on record the judgment in T. Sanjeevu v. State of Andhra Pradesh and others, it is only with reference to provisions of WALTA Act and this Court is bound by the judgment of Single Judge of High Court of A.P at Hyderabad. Even if this principle is applied to the present facts of the case, action proposed to be taken by 5th respondent is contrary to the provisions of WALTA Act and to that extent, the notice can be set aside.
14. Notice impugned in the writ petition is challenged on the ground that 5th respondent issued such notice without any authority under law and also violative of principles of natural justice. Proceedings 7 MSM, J wp_16060_ 2019 impugned, though styled as notice, in fact it is an order, directing the petitioner to close the water plant with a threatened action. Therefore, it is not a notice, it is an order and such order is passed without affording any opportunity to the petitioner to explain and thereby it is violation of principles of natural justice. Hence, the notice in Roc.No.01/2019 dated 27.09.2019, shall be treated as notice and the petitioner is directed to submit his explanation within fifteen days from the date of this order and 5th respondent is directed to pass appropriate order in accordance with law, following the provisions of the Act, alone, within two weeks therein and till then 5th respondent is directed not to take any action for closure of water plant.
11. With the above directions, the writ petition is disposed of.
12. Consequently, miscellaneous petitions, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 13.11.2019 Rvk