WP/35510/2012 of M. Venkata Rao, Vs State of Andhra Pradesh, on 28 December 2012

ORDER:

THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAOWRIT PETITION No.35510 OF 2012

This writ petition is instituted seeking a Writ of Mandamus or any otherappropriate writ for declaring the Agreement No.-/2012-13 dated 05-09-2012entered into between the Executive Engineer, RWS&S Division, Ongole andSmt.M.Anuradha-R-5 for the work of augmentation of PWS Scheme toBasavannapalem Village of Maddipadu Mandal, as illegal and void.

2. The petitioner is a resident of Basavannapalem village and also a taxpayerto the local Gram Panchayat. Incidentally, he is also the Chairman of the PrimaryAgricultural Cooperative Society of Nandipadu. It is stated that the StateGovernment has passed detailed instructions through their Memo No.936/Plg.VI/2010 dated 12-04-2010 formulating the guidelines for execution ofvarious works under the Constituency Development Programme (CDP). The StateGovernment has provided a sum of Rs.1.00 crore to each MLA/MLC for the year2010-2011 for taking up developmental activities under the CDP. Each MLA/MLCis required to propose Rs.50.00 lakh worth work and the Minister-in-charge of theDistrict shall propose the remaining Rs.50.00 lakh worth work under the CDP. Interms of guideline No.15, once the work was sanctioned and executioncommenced, the same shall not be cancelled. The local Gram Panchayat is alsorequired to constitute the Habitation Works Committee to be headed by theSarpanch of the Gram Panchayat and comprising of the Mandal Parishad TerritorialConstituency Member and members of the Gram Panchayat, the local Self HelpGroup leader as the other members. It is stated that Basavannapalem Gram Panchayat by its resolution passed on 14-08-2007 has constituted accordingly theHabitation Works Committee. It is further stated that Sri Jupudi Prabhakara Rao,MLC, proposed three works with an estimated total cost of Rs.12.00 lakh from theCDP funds and requested the Collector to accord administrative sanction. Accordingly, the District Collector has accorded necessary sanction on 22-07-2010and the Executive Engineer in-charge of the Rural Water Supply Scheme, Ongolewas requested to implement these three works. The first work relates toAugmentation of Protected Water Supply Scheme to Basavannapalem at anestimated cost of Rs.5.00 lakh, while the second work related to providing pipelinework in the village and also in the SC Colony of the village at an estimated cost ofRs.5.00 lakh and the third work related to construction of a sump at an estimatedcost of Rs.2 lakh at a different village situate within the same Mandal. Accordingly,Agreement No.9/2011-12 and Agreement No.10/2011-12 were executed on 27-04-2011. The works have been entrusted for execution to Smt.M.Anuradha-respondentNo.5 herein.

3. Thereafter, the District Collector on 13-01-2011 has accorded administrativesanction for two more works at an estimated cost of Rs.5,90,000/- under the CDPFund Scheme under Santha Nuthalapadu Assembly Constituency. One workrelated to Providing Bypass line in S.C. Colony of Basavannapalem at an estimatedcost of Rs.3.00 lakh and the second work related to Augmentation of ProtectedWater Supply Scheme in Basavannapalem Village at an estimated cost of Rs.2.00lakh. Subsequently, on a reference made by the District Collector, the Minister-in-charge of the District has agreed to cancel the aforementioned two works andordered for construction of 20,000 Liters Capacity Overhead Supply Reservoir atS.C. Colony of Basavannapalem village at an estimated cost of Rs.5.60 lakh from

Santha Nuthalapadu Assembly Constituency Development Fund. Accordingly,administrative sanction for the work of construction of 20,000 Liters capacityOverhead Tank was accorded on 10-04-2011 by the Collector, and an agreementbearing No.11/2011-12 dated 28-04-2011 was entered into with SriR.Venkateswarulu, Contractor, Mallavaram Village, Maddipadu Mandal, for acontract value of Rs.5,58,752/-. The site where the overhead tank of 20,000 literscapacity was to be constructed was also handed over to the contractor forcompleting the work within six months period. It appears initially the overhead tankwas proposed to be constructed in Sy.No.212/1 of Basavannapalem village, whichwas lying adjacent to the S.C Colony. Since the land in Sy.No.212 is classified ascattle stand and as Gram Panchayat Poramboke vested in the Gram Panchayat, theSarpanch of village Smt. M.Anuradha-R5 filed W.P.No.17532/2011 inthis Court on the premise that in terms of Section 58 of the Panchayat Raj Act, 1994,the Gram Panchayat cannot be divested of its property without its consent. Entertaining the said writ petition, an interlocutory order was said to have beenpassed by this Court on 24-06-2011 in W.P.M.P.No.21090 of 2011 staying all furtherproceedings. It was stated that the said writ petition was instituted suppressing theresolution dated 23-09-2010 passed by the Gram Panchayat presided over byherself, agreeing for allotment of Ac.0-05 cents of land situate in Sy.No.212/2 for thepurpose of construction of overhead tank. Apprehending that this fact might bebrought to the notice of this Court, W.P.No.17532 of 2011 has been actuallywithdrawn and accordingly the said writ petition was dismissed on 01-08-2012. Inthe interregnum finding that the project is getting delayed, the writ petitioner hasdonated the land of Ac.0.05 cents situate in Sy.No.213/4 and settled the land infavour of the Andhra Pradesh State Government. This paved way for construction of the overhead tank without getting caught in the hassle relating to land inSy.No.212. Accordingly, the overhead tank was constructed in the land donated bythe writ petitioner and water is supplied to the village and also S.C Colony from thisoverhead tank as it was inaugurated on 10-01-2012 by the local MLA of SanthaNuthala Padu Assembly Constituency.

4. After the site was handed over initially on 28-04-2011 for the purpose ofconstruction of overhead tank to the contractor, Sri Jupudi Prabhakara Rao, MLC issaid to have submitted a representation on 02-05-2011 to the District Collector,Prakasam proposing to construct 10,000 liters overhead tank in BasavannapalemS.C Colony with an estimated cost of Rs.5.00 lakh under the MLC Quota, instead ofthe sanctioned work relating to augmentation of the Protected Water SupplyScheme to Basavannapalem. The District Collector appears to have called for thereport from the Executive Engineer as to the reasons for not grounding the worksanctioned earlier relating to augmentation of Protected Water Supply Scheme toBasavannapalem. Then, the Executive Engineer seems to have pointed out thatthe funds sanctioned in a sum of Rs.5.00 lakh and Rs.5.00 lakh for each of the worktotaling to Rs.10.00 lakh is not sufficient to take up both the augmentation ofpipelines and as well as the construction of overhead tank, and that the amountwould be sufficient only for the purposes of augmentation of the pipeline work aloneand the construction of overhead tank work would be undertaken with the fundsmade available by the local MLA, representing Santha Nuthalapadu AssemblyConstituency, so that the water problem in the village may be got over. In thesecircumstances, when an unnumbered agreement is entered into on 05-09-2012describing the nature of the work as augmentation of Protected Water SupplyScheme to Basavannapalem village of Maddipadu Mandal at an estimated cost of Rs.5.00 lakh, the present writ petition is filed.

5. Heard Sri E.Manohar, learned senior counsel representing Sri P.Kamalakar,learned counsel for the petitioner, the learned Government Pleader for Finance andPlanning for R-1, learned Government Pleader for Revenue for R-2, learnedGovernment Pleader for Panchayat Raj for R-3, Sri G.Elisha, learned Standing counsel for R-4, Sri Kurra Srinivas, learned counsel for R-5 and Sri P.Venugopal,learned counsel for R-6.

6. Sri E.Manohar, learned Senior counsel would submit that the least thatshould be done is to secure an administrative sanction before any work is groundedand the expenditure is booked. If there is already an overhead tank of 20,000 literscapacity constructed in the village, undertaking a similar work for 10,000 literscapacity overhead tank for the ostensible purpose of supplying Protected WaterSupply to S.C Colony in the same village should not have been undertaken at all. Itis also submitted that earlier there is an overhead water supply reservoirconstructed comprising 90,000 liters capacity in the village. So, therefore thereshould be accountability for the public funding.

7. Per contra, the Learned Assistant Government Pleader, upon instructions,would submit that so far as the construction of 20,000 litres capacity overhead tankis concerned, the work is entrusted for execution to Sri R.Venkateswarulu, contractor and the construction of the overhead tank has been accomplished byundertaking its execution in the land donated by the writ petitioner. Apart from this,two other independent works were undertaken, one related to laying pipelines whilethe other related to augmentation of Protected Water Supply Scheme to the village.

These two works are sanctioned under the CDP proposed by the local MLC. Theyare different works. Of them, only one work viz., laying pipeline has beenundertaken for execution, while the augmentation of Protected Water SupplyScheme work has not been taken up. Instead of this augmentation work, now theconstruction of overhead tank of 10,000 liters capacity for S.C colony of the villageis undertaken.

8. Sri K.Srinivas, learned counsel appearing for the 5[th] respondent, wouldsubmit that the inter se disputes between the parties have got resolved with theintervention of the Principal Secretary of the Planning Department at the Secretariatand thereafter only the present work relating to construction of overhead tank of10,000 liters capacity is undertaken.

9. Sri K.Srinivas had also raised a fundamental objection about themaintainability of this writ petition, as the petitioner has no locus to object for adevelopmental work of construction of 10,000 liters capacity overhead tank in thevillage.

10. As to how many overhead tanks should be constructed for the purpose ofProtected Water Supply to the residents of the village is not a justiciable issue. Thematters of that nature are better addressed by the Executive Engineer, who is in-charge of Rural Water Supply Scheme. Similarly, as to whether the overhead tankof 20,000 liters capacity, which was already constructed, is sufficient or goodenough for quite some time to come for supplying water to the residents is also not aquestion, which is capable of being resolved in a writ petition. These are allquestions, which are liable to be resolved, at best by the District Collector, based upon the opinion and technical inputs that would be supplied by the ExecutiveEngineer.

11. If there is any apparent clash of interest between the local MLA and MLC,any such clash of their egos shall not come in the way of undertaking thedevelopment works in the village. After all the motto of both the sets of publicrepresentatives is one and the same, namely to serve the residents well. Therefore,keeping aside all political considerations for a while, it is time that thedevelopmental works particularly relating to the Protected Water Supply Schemeshould be attended to and accomplished urgently. Residents in particular those ofrural areas are crying for establishing Protected Water Supply Schemes in theirrespective habitations for over a long period of time. The State has made availablethe funds to both the MLAs as well as MLCs for undertaking constituencydevelopment works. The funds made available by the state are coming out of thekitty of the taxpayers also. Therefore, it is time that the developmental works, whichsub-serve the larger public interest of securing adequate and save supply ofprotected water in the village, shall not be hindered, more so, on account of thepolitical considerations.

12. In this context, the statement of the Learned Assistant Government Pleaderthat the work relating to augmentation of Protected Water Supply Scheme inBasavannapalem village, which is initially proposed by the funds made availableunder the MLC’s grant, is not taken up and the other work relating to laying ofpipeline alone is taken up is of significance. Instead of the augmentation work,construction of the overhead tank of 10,000 liters capacity is undertaken now, itappears.

13. In my opinion, the objection raised on behalf of the writ petitioner that sansan administrative sanction by the Collector, the work should not have beengrounded, is purely a technical objection. Technicality should not defeat thesubstantive right of the residents to secure the facility of protected water supply tothem.

14. Therefore, I direct the District Collector to forthwith accord necessarysanction for undertaking the construction of 10,000 liters capacity overhead tank forsupplying protected water to the residents of Basavannapalem village and inparticular, the residents of S.C Colony. This, he would do so within a maximumperiod of ten days from the date of receipt of a copy of this order. It is open to theDistrict Collector to make a realistic assessment as to whether the alreadyconstructed 20,000 liters capacity overhead tank facility would adequately andsufficiently cater to the needs and requirements of protected water supply to theentire village including the S.C colony or not. Based upon his study in that regard,appropriate decision sanctioning the work would be undertaken by him.

15. Hence, the writ petition stands disposed of. No order as to costs.

___________________________________

JUSTICE NOOTY RAMAMOHANA RAO

Prv / Mva28.12.2012