S. Munibachappa and Others vs State of Karnataka and Others

Manjula Chellur, J.—Heard the learned advocates appearing for the petitioners, respondents and so also the learned Government Advocate.

The entire dispute revolves around a pond adjacent to Ittasandra Village of Nandagudi Hobli, Hoskote Taluk, measuring 90'' x 90'' (approximately 10 guntas of land). It is not in dispute that the pond in question is in existence for long time. It is also not in dispute that sometime back water from this tank was also used for drinking purpose, but off late, the water mainly is used for other human purposes like, feeding the cattle, washing clothes, etc.

According to the petitioners'' counsel, we are living in a situation where water is becoming dearer day by day, therefore the existing pond should not be closed on the pretext of Grama Panchayat concerned needing the same for constructing the office building on the ground that the said pond is going to breed mosquitoes, and posing hazard to the health of the public. According to the. learned Counsel for the petitioners, Sections 82 and 84 of the Karnataka Panchayat Raj Act (for short hereinafter referred to as the ''Act''), are applicable to the facts of the present case. Therefore, the very resolution of the Grama Panchayat to close the pond for the purpose of construction of building is against the provisions of Sections 82 and 84 of the Act.

As against this, Mr. Chandrashekara Reddy, learned Counsel appearing for respondent No. 5-Grama Panchayat and Mr. Bhat, learned Counsel appearing for impleading respondents 6 to 96 would bring to our notice that in the guise of the public interest, private parties, nonetheless the kith and kin of one Mr. Kempanna are trying to build up a right so that they can claim the property against the interest of the very right of the Grama Panchayat. According to them, in the said pond, the sewerage water from in and around houses is getting collected which lead to breeding the mosquitoes and other infectious insects therefore on account of health ground Grama Panchayat took a decision to close the said pond in the interest of the villagers and also to meet the needs of Panchayat to construct the building for them, as the existing building is not enough for the Grama Panchayat. It is also brought to our notice that the Grama Panchayat did not own a building of their own and therefore with the funds now granted to them, they are intending to construct the said building.

Learned Counsel appearing for the petitioners also in reply brought to our notice that an estimate got prepared by a reputed Engineer points out that a sum of Rs. 5,75,000/- would be the cost to fill up the said pond and there is enough gomal land available for the purpose of Panchayat to construct the Panchayat office. According to him, the maximum cost of the land would be Rs. 1,00,000/- per acre. Therefore, causing hardship and inconvenience to the public at large in the said Village by closing the pond should not be encouraged.

We have gone through the photographs and the records produced by both the parties. We note from the photographs and especially the letter written by the Tahsildar which is at Annexure-F, dated 14.3.2007, this pond in Sy. No. 93 is a Government land, was useful to the villagers of Ittasandra and the decision of the Panchayat to close the said pond was not appreciated. As a matter of fact, he proceeds to say that the water from the pond is useful for the purpose of the villagers. Therefore, he gave a proper direction to the Panchayat of Ittasandra not to close the said pond. We also have gone through Annexure-E, wherein at SI. No. 16 the Executive Engineer of Panchayat Raj had allotted Rs. 1,00,000/- for the purpose of maintenance and development of Ittasandra pond. We also note that the Tahsildar was of the opinion that, off late the effluents from the nearby houses are being left into the pond polluting the water and therefore proper care must be taken to see that such pollution should be curtailed. Having regard to these facts, we are of the opinion, the pond being situated adjacent to Village by the side of a road as brought to the notice of the Court by the learned Government Advocate, the water from this pond could be used, if not for drinking purpose, but for other purposes.

We are aware of the judgment of the Apex Court in the case of M.K. Balakrishnan and Others Vs. Union of India (UOI) and Others, , wherein Their Lordships have referred to the water problem in the country especially in summer season. Having regard to the facts, we are of the opinion that the existing ponds must be rather maintained and kept pollution free than closing, when such ponds are useful for the inhabitants in and around the said ponds. In the present case, the photographs produced by both the parties indicate that there are residential houses nearby this pond and there is a road as well. Off late, we note that the pond and road by the side of the pond is kept clean at the instance of Panchayat or by someone else. The fact remains, if the said pond is properly maintained by the concerned Panchayat, the water from the pond would be available to the inhabitants of Ittasandra Village. So far as the problems like breeding of mosquitoes etc. are concerned, whether the said pond is there or not the problem will exist so long as there is stagnation of water. Ultimately, the Panchayat concerned, has to see how best the pond in question can be fenced avoiding the kids and others accidentally falling into the said pond and also create a hygiene and healthy atmosphere in and around the said pond.

We also note that plastic covers and other wastage are thrown in around the said pond and the same has to be controlled by the Panchayat concerned. If only the Panchayat concerned takes care to maintain this pond, then the benefit of this pond would be available to the villagers, if not for drinking purpose but for other purpose i.e., feeding the cattle and other household use.

We are of the opinion that the Panchayat concerned shall allocate some portion of the proposed funds for construction of the building of Panchayat Office for maintenance of this pond, if the grant of Rs. 1,00,000/- is not available with them now.

It is made clear that the petitioners herein, whether they are the villagers of Ittasandra village or neighbouring village or remotely related to one Mr. Kempanna, shall not have any claim over the pond in question.

Accordingly, with the following directions we dispose of the matter by allowing the writ petition:

i) The Gram Panchayat of Ittasandra-respondent No. 5 is directed to keep the pond adjacent to the village as a pond only;

ii) Further it is directed that they shall not take any steps to close the said pond.

iii) The Panchayat concerned shall maintain the said pond in the interest of the villagers of the said village by fencing; and

iv) maintain the same with proper care avoiding the menace of mosquitoes, since it is a public pond.

Writ petition is allowed accordingly.