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Mahankali Chaitanya Kumari v/s State of Andhra Pradesh rep by its Principal Secretary, Panchayat Raj & Rural Development Department & Others

Company & Directors' Information:- R M RAJ AND CO PRIVATE LIMITED [Strike Off] CIN = U99999DL1952PTC002146

Company & Directors' Information:- S R RURAL INDIA DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U80302TN2005PTC058249

    Writ Petition No. 3834 of 2020

    Decided On, 24 February 2020

    At, High Court of Andhra Pradesh


    For the Petitioner: Nimmagadda Revathi, Advocate. For the Respondents: Government Pleader for Panchayat Raj, I. Koti Reddy, Advocate.

Judgment Text

1. The petitioner seeks writ of mandamus declaring the action of respondents in deciding to construct Grama Sachivalayam (Village Secretariat) on the road margin and the drain situated between Devulapalli and Dubacherla road and petitioner’s land covered by Survey No.532/4 of Lakkavaram Revenue Village, Jangareddygudem Mandal, West Godavari District as illegal and arbitrary and for a consequential direction to the respondents to protect the said road margin and the drain site for petitioner’s passage purpose without constructing any Grama Sachivalayam thereon.2. (a) The petitioner’s case is that she is the owner ofAcres 5.00 cents of land situated in Survey No.532/4 of Lakkavaram Village, which was gifted to her by her father. To the east of the said land, there is a road running between Devulapalli and Dubacherla, which is now under the maintenance of 5th respondent. In between the said road and the petitioner’s land, there runs a drain which collects the sullage water and the excess rain water from the upper stream of Tekkinavarigudem Village. The Irrigation Department constructed drainage canal under Yarrakaluva Irrigation Canal. The respondents 2 to 4 are now proposing to construct a Grama Sachivalayam on the berm of the road by closing the said drain, in which case, the villagers will suffer a lot as the drain water will cause inundation and petitioner cannot have access to his lands.(b) Earlier, when the respondents attempted to grant house site pattas to weaker sections in the same road margin, the petitioner filed W.P.No.332 of 2009 and since the respondents in their counter stated that they are not going to grant any house sites on the road margin, this Court recording the same, disposed of the writ petition. Again, the respondents are now meddling with the road margin and the drain to construct Grama Sachivalayam by effacing the drain.Hence, the writ petition.3. Respondent No.4 filed counter. While denying the petition averments, it is inter alia contended that the gram panchayat is no way concerned with the property of the petitioner said to be in an extent of Acres 5.00 cents in Survey No.532/4 of Lakkavaram Village and it is false to state that there is a drain in front of the petitioner’s land. The Government sanctioned the building for village secretariat in the village and on the request of the gram panchayat, the revenue authorities conducted survey of the land to an extent of Acres 1.96 cents in Survey No.533 belonging to gram panchayat and after identifying the site and passing of panchayat resolution, the Engineering Department started construction of the work in the gram panchayat site. The petitioner came up with a false case in order to grab the panchayat land, which is situated abutting to her land. There is no drain in existence as stated by the petitioner.The 4th respondent, thus, prayed to dismiss the writ petition.4. Heard learned counsel for petitioner, Smt. Nimmagadda Revathi, learned Government Pleader for Panchayat Raj, representing on behalf of respondents 1 to 3, Sri I.Koti Reddy, learned standing counsel representing on behalf of 4th respondent and learned Government Pleader for Roads and Buildings representing on behalf of 5th respondent.5. Learned counsel for petitioner would strenuously argue that towards east of petitioner’s land, a tar road runs in between Devulapalli and Dubacherla and on the berm of the road a drain is situated, which is intended to collect the sullage water and also the upstream running water. Having thus narrated the topography, learned counsel would further submit that in case the respondents construct Grama Sachivalayam by effacing the part of the berm of the road and existing drain, the sullage water will be blocked causing inundation to the neighbouring lands and further, petitioner’s access to the land will be blocked. She would argue that the villagers have every right on every inch of the public property like roads, cart tracks etc., and it is the duty of the authorities to protect the same. In support of her submission, she relied upon the decision of this Court in Sataraboyina Someswara Rao v. Sangasetti Tirupathamma (1989 (1) ALT 36 = 1988 (2) APLJ 469).6. In oppugnation, learned standing counsel for 4th respondent would argue that the village secretariat is proposed to be constructed in a very small extent, which will not cause any obstruction to the petitioner’s access to her land. He would further argue that there is no drain in existence.7. I gave my anxious consideration to the above respective submissions. The record shows that earlier when the respondents proposed to grant house sites to the weaker section of people, the petitioner filed W.P.No.332 of 2009 contending that the action of the respondents in deciding to grant the road margin and drain land situated between Devulapalli and Dubacherla road as illegal. The 4th respondent therein (5th respondent herein) filed a counter, wherein, while denying the petition averments, he narrated about the topography of the disputed property as follows:“3. In reply to para 2, 3 and 4 of the affidavit it is submitted that this respondent has no knowledge about the petitioner’s ownership possession and enjoyment of the land admeasuring Acres 5.00 cents situated in Survey No.532/4 of Lakkavaram Village. The allegation of the petitioner that the respondents have decided to provide house sites to weaker section people by closing village drain and road margin and blocking her passage to her land situated in survey No.532/4 of Lakkavaram Village from the road de link from Devulapalli to Dubacherla are false and incorrect and not supported by any evidence much less legal evidence in support of the above allegations. In fact there is an existing road from 25/600 to 34/566 is a State Highway is under control and maintenance of the 4th respondent R&B Department. The said road from Devulapalli Village to Dubacherla Village passes through the land in Survey No.533. The width of the road, where the petitioner’s alleged land is situated in Survey No.532/4 of Lakkavaram Village road is 3.75 mtrs and Berm 2.00 mtrs between km 25/600 to km 34/566 Cheebrolu to Devulapalli road and the width of the road is 3.75 Mtrs as per the FMB of 533 Tekkinavarigudem hamlet of Lakkavaram Village of (R&B) Jangareddygudem Sub-Division Jurisdiction. At that road point there is a drainage channel between road margin and petitioner alleged lands. The 1st and 2nd respondents never approached this respondent or not informed about the providing house sites to the weaker section people in the said road margin by closing said drainage channel.4. x x x x This respondent is taking all necessary steps to protect the said road margins from encroachments and to protect the drain water channel otherwise the drain water would enter the roads and damage the said road and it is true that the High tensional Electrical Line with 440 KV S near said drain road margins passes through. This respondent is bounden duty to protect the said road margins and drainage channel being under the control of the Irrigation Department to protect the same to safe guard the said public road and to prevent the encroachment by constructing houses or from being allotted to the weaker sections people for house sites. And as such there is no proposal or activity by the respondents 1 and 2 to allot the said road margin and drain situated in survey No.533 adjacent to the land of the petitioner situated in survey No.532/4 of Lakkavaram Village.”8. Having regard to the above stand taken by the 4th respondent in his counter, this Court while observing that there was no proposal or activity of the respondents to allot the subject land as house sites, disposed of the writ petition as nothing survived for adjudication in the matter. Thus, in the earlier round of litigation, the respondents have admitted that abutting Devulapalli and Dubacherla road, there is a road margin (berm) of 2 meters and there is a drainage channel between road margin and petitioner’s land. In the previous writ petition, the respondents have given undertaking to protect the road margins from encroachments and also to protect the drain water channel, as otherwise drain water would enter the roads and damage the same. That being the stand taken by the respondents in the earlier writ petition, it does not lie in their mouth now to contend that there is no drainage. As rightly argued by counsel for petitioner public at large will have a right on every inch of the public properties like public roads, cart tracks etc., and it is the duty of the authorities to protect such right by removing encroachments if any made by others.9. In Sataraboyina Someswara Rao’s case (supra 1), this Court observed as follows:“25. In my opinion, the said principle also involves public policy. No person can be allowed to occupy a portion of a public road, a highway, or even a public pathway, and argue that even after his encroachment there is sufficient space left for public to pass by. He cannot be the judge of the requirements of the public, nor can he decide for himself what extent must be left for public use and what extent must be occupied by him. At this rate, anybody will be free to occupy a portion of such public streets, highways and roads with the specious argument that there is still space left for public to pass by. Slowly these encroachments may become permanent.It is evident that such a course cannot be permitted. It is true that Section 39 expressly speaks of a discretion in the court in the matter of granting a mandatory injunction; but, the said discretion has to be exercised in accordance with law and having regard to the facts and circumstances of a given case. May be that granting a mandatory injunction would result in eviction of the poor people living in the huts, or the displacement of the school which is said to be running there for

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the last several decades; but that can be taken care of by making appropriate directions.”10. Thus it is clear that in respect of public road or highway or a public pathway, every member of the public has right to use the land and no person can be allowed to occupy the portion of such public road, highway or pathway. That being the trite law, the respondents who are obligated to protect the rights of the public, themselves cannot violate the law and construct village secretariat though apparently for the purpose of panchayat administration. Such an act on the part of the respondents would adversely affect the rights of the public in general and right to access of the petitioner in particular.11. Therefore, this writ petition is allowed directing the respondents not to construct Grama Sachivalayam (village secretariat) or any other building on the berm of the road leading to Devulapalli and Dubacherla, by effacing the drain so as to obstruct the way of the petitioner to reach his lands.As a sequel, miscellaneous applications pending for consideration, if any, shall stand closed. No costs.