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Manne Kishtiah and ors. Vs. the Revenue Divisional Officer, Medak, Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 3317 of 1969
Judge
Reported inAIR1972AP276
ActsAndhra Pradesh Irrigation (Construction and Maintenance of Water Courses) Act, 1965 - Sections 2 and 4
AppellantManne Kishtiah and ors.
RespondentThe Revenue Divisional Officer, Medak, Government of Andhra Pradesh and ors.
Appellant AdvocateM.L. Ganu, Adv.
Respondent AdvocateP. Balakrishna Murty, Adv. for ;Govt. Pleader
Excerpt:
.....water courses ) act, 1965 - petition for issue of mandamus to restrain respondents from disturbing water channel - laying of pipeline in canal bed amounts to construction - section 4 prescribes notice to aggrieved pertaining to construction of water courses - aggrieved entitled to file his objections to such proposed construction - no such statutory procedure has been followed by respondent authorities for commencing such construction - authorities liable to follow such procedures - contention of respondents that petitioners are not 'ayacutdars' for reason of their land not being a feeder land under proposed construction not sustainable - petitioners who are interested in irrigation work under which present channel falls eligible to file objections - held, authorities directed to follow..........act, that the petitioners were not afforded an opportunity to submit their objections, that the proposed construction by the respondents, would have the effect of widening the water course and increasing its depth, thereby prejudicially affecting the supply of water to the petitioners' lands, that by reason of the proposed construction by the respondents, the petitioners lands of about five to six acres were also occupied and that the respondents cannot do so without acquiring the lands in accordance with the provisions of section 6 of the act. the petitioners therefore seek the issue of a writ of mandamus as mentioned above and also an injunction. the writ petition was admitted on 3-9-1969 and an injunction was granted on the same day restraining the respondents from proceeding with.....
Judgment:
ORDER

1. The petitioners who are thirty three in number have filed this writ petition for the issue of a writ of Mandamus or any other appropriate writ, direction or order, restraining the respondents from taking up the construction of any channel or water course or otherwise disturbing the existing channel from the village tank called Pedda Cheruvu situate between Kansanapalli and Seri Mallareddipalli, in Andole Taluk, Medak District.

2. The petitioners state that they are all pattadars of different lands varying in extents from 4-00 guntas to Ac. 2-12 guntas situate in the village of Kansanapalli, that all the petitioners were cultivating the said lands by taking water from the tank called Pedda Cheruvu for over several decades, that water was being carried to their fields from the said channel through the water course or channel, that the said source is the only source of water to the said lands, that the revenue authorities are the Executive Engineer, public Works Departments, took up the construction of a water course and were laying channels in spite of the objections raised by the petitioners and other villagers of Kansanapalli and Seri Mallareddipalli, that such construction would be prejudicial to the petitioners and also contrary to the provisions of the Andhra Pradesh Irrigation (Construction and maintenance of 'water Courses) Act of 1965 (hereinafter called the Act), that the Executive Engineer, who is the Irrigation Officer under the said Act, did not follow the procedure prescribed by Sections 4 and 5 of the Act, that the petitioners were not afforded an opportunity to submit their objections, that the proposed construction by the respondents, would have the effect of widening the water course and increasing its depth, thereby prejudicially affecting the supply of water to the petitioners' lands, that by reason of the proposed construction by the respondents, the petitioners lands of about five to six acres were also occupied and that the respondents cannot do so without acquiring the lands in accordance with the provisions of Section 6 of the Act. The petitioners therefore seek the issue of a Writ of Mandamus as mentioned above and also an injunction. The writ petition was admitted on 3-9-1969 and an injunction was granted on the same day restraining the respondents from proceeding with the constructions of the channel.

3. A counter affidavit has been filled on behalf of the respondents, by the Assistant Secretary to Government, Revenue Department stating as follows: The lands of the petitioners are situated on the opposite side of the feeder channel to Chinna Cheruvu, Ramsanapalli and are on a higher level than the bed level of the feeder channel, that the petitioners unauthorisedly cut the bank at almost every Madi and were drawing water to their lands situated at a higher level by putting up a bund across the channel, and that their lands are not under the command of the feeder channel. It is however admitted that the settled ayacut of the tank Pedda Cheruvu, Gadi Peddapur is 560 acres covering three villages, viz., Gadi Peddapur, Kanasanpalli and Seri Mallareddypalli, that there is a feeder channel taking of from the sluice of Pedda Cheruvu in Gadi Peddapur which irrigates certain extent of lands in Seri Mallareddypalli and Ramasanapalli, that the petitioners entered the feeder channel and were drawing out water unauthorisedly for irrigating their lands, that they were tempering with the irrigation soures by drawing water from the feeder channel and that they are not entitled to reduce the supply of water to the lands in lower level. It was further stated that the accustomed supply of water to the petitioners lands, is not affected by the proposed construction, that it was only to regulate the distribution of water and prevent misuse and wastage, that it was proposed to construct a 6 diameter H. P. outlets at all points wherever the ryots had cut the canal bank, that the pipes are being fixed at the existing bed level of the canal, and that in doing so, neither the canal's bed width is widened or deepened nor a new channel or legation of the respondents is that the lands of the petitioners are not registered under the feeder channel and the they could be irrigated by the irrigation channels of other sluices of the same tank, that the question of acquiring the petitioners' lands for the purpose of construction of a feeder channel does not arise as no new irrigation channel or water course is being excavated, and that only 6' diameter Hume pipe outlets are proposed to be constructed at various points as mentioned above. It is stated that the provisions of the Andhra Pradesh Irrigation (Construction and Maintenance of Water Courses) Act of 1965 would not apply to the facts of the case.

4. On the aforesaid, averments, the short question that arises for consideration in this writ petition is, whether the respondent could proceed to construct the 6' diameter Hume-pipe outlets in the existing bed level of the canal without following the procedure prescribed by the provisions of the Andhra Pradesh Irrigation (Construction and Maintenance of Water Courses) Act, 1965 (hereinafter referred to as 'The Act') and without affording an opportunity to the petitioners to make their representations. To appreciate this contention, it is necessary to note the relevant provisions of the Act.

5. The said Act was enacted to provide for the construction and maintenance of water-courses in the ayacut of irrigation works and the matters connected therewith, and it applies to the whole of the State of Andhra Pradesh, 'Ayacut' is defined in Section 2 (a) of the Act, as all the lands which are entitled to irrigation under a particular irrigation work. 'Construction', according to Section 2 (c), means and includes extension, improvement of alteration of water-course. 'Irrigation Officer', under Section 2 (e), means any officer of the Revenue Department or the Public Works Department not below the rank of a Revenue Divisional Officer, or an Executive Officer, empowered or authorised by the Government to exercise all or any of the functions of an Irrigation Officer under the act. 'Irrigation Work' is defined in Section 2 (f) and it includes (I) all rivers and natural streams or parts thereof; (ii) all lakes and other natural collections of water or parts thereof; (iii) all tanks, wells, tube wells, reservoirs, ponds, 'kuntas, streams, 'madugus' used for the supply of storage of water for purposes of irrigation; (iv) all canals, channels, anicuts, dams, embankments, weirs, slucies, groins, 'kunta's, and other works, other than escape channels, connected with, or auxiliary to the irrigation's works referred to in sub-clauses (I) to (iii): (v) all drainage channels, the water of which is utilized for the purpose of irrigation; (vi) all lands used for the purpose of irrigation works referred to in sub-clause (I) to (v) and (vii) all buildings, machinery, fences, gates, roads and other erections occupied by, or belonging to, the Government and connected with an irrigation work, which are owned, maintained, constructed or controlled by the Government . 'Water Course' is defined in Section 2 (j) as meaning a field channel which receives supply of water from the outlet of an irrigation work and conveys water to the lands included within the ayacut of that work and which is not maintained at the cost of the Government, and includes all subsidiary works connected with any such channel except the sluice or outlet though which water is supplied from irrigation work to such channel.

6. Section 3 of the Act requires that all owners of lands within each distinct block of such extent not exceeding one hundred acres, as may be prescribed, in the ayacut of an irrigation work shall be liable to construct and maintain, at their own cost, water-courses required for the supply of water t their lands from the distributories of the irrigation work for irrigation purposes and for the discharge of waste or surplus water from those lands, in accordance with such directions as may be issued by the Irrigation Officer.

7. Sections 4 and 5, on which considerable reliance has been placed by the learned Counsel for the petitioners, read as follows:

'Section 4 (I) : - Whenever an Irrigation Officer considers suo motu or on the application of an ayacutdar that the construction of a water-course is expedient or necessary, he shall ascertain the most suitable alignment for the said water-course and cause the land which in his opinion is necessary for the construction thereof to be marked out on the ground.

(2) He shall thereupon publish a notice in the prescribed manner in every village through which the water-course is proposed to be taken specifying the extent of land which lies in such village and which has been marked out under sub-section (2) and requiring-0

(a) every owners who wishes to receive supply of water to his land through the water-course or to make use of the water-course for drainage purposes to make an application in that behalf to the Irrigation Officer within thirty days of publication of notice;

(b) every person likely to be affected by the construction of the water-course of interested in the lnd on which it is proposed to construct the water-course to submit his petition to the Irrigation Officer stating his objections to the proposed construction within sixty days of publication of the Notice.

(e) The Irrigation Officer shall also send copies of the notice to every person known or believed to be the owner of the land through which the water-course is proposed to be taken and to the District Collector for publication in the Andhra Pradesh Gazette.

(4) The Irrigation Officer where he is not the Revenue Divisional Officer shall, as soon as may be after the expiry of the period specified in the notice, make a report to the Revenue Divisional Officer regarding the proposed water-course together with a plan showing the alignment thereof and the objections, if any, received thereof an the objections, if any, received by him.

Section 5 (1) : - The Revenue Divisional Officer shall, after giving notice to every person known or believed to be the owner of the land to which the water course is proposed to be taken, pass such orders in respect of the proposed construction as he may deem necessary and the order so passed shall be published in the Andhra Pradesh Gazette (2) The order passed under sub-section (1) shall, if it is decided to construct a water-course, contain the following particulars, namely, (I) the district, Taluk, village, and the survey number and description of the land on which the water-course is proposed to be constructed:

(ii) the approximate area of such land;

(iii) where the plan of the land is made, the place where such plan may be inspected.

(3) Against any order passed by the Revenue Divisional Officer under sub-section (1) an appeal shall lieu to the District Collector, within ninety days from the date of publication of the order of the Revenue Divisional Officer in the Andhra Pradesh Gazette and District Collector may, after giving the parties to the appeal an opportunity of being heard, pass orders on the appeal.

(4) The decision of the District Collector under sub-section (3) and where no appeal is filed, the decision of the Revenue Divisional Officer under sub-section (1) shall, on publication in the Andhra Pradesh Gazette, be final ..................'

8. Under S. 6 of the Act, where land needed for the construction of water course is not provided by the person be benefited by the water-course, the Revenue Divisional officer has to take proceedings for the acquisition of such land under the provisions of the land Acquisition Act. The rest of the provisions f the Act are not relevant for the purpose of this writ petition and hence they need not be referred to.

9. It will be seen that the 'ayacut' in relation to an irrigation work means all under the irrigation work, 'Irrigation work' includes among other things, all tanks, canals, channels etc. But, 'waster-course' is defined as a field channel which receives supply of water from the outlet of an irrigation work and conveys water to the lands included within the ayacut of that irrigation work. Under Section 4 of the Act whenever an Irrigation Officer considers suo motu or on the application of an ayacutdar that the construction of a water course is expedient or necessary, he shall ascertain the most suitable alignment for the said water-course and cause the land, necessary for the construction, to be marked out on the ground. Thereafter, he should publish a notice in the prescribed manner in every village through which the water-course is proposed to be taken, specifying certain particulars as mentioned therein, and further, he should require every owner who wishes to take the supply of water to his land through the water-comes or to make use of the water-course for drainage purposes, to make an application in that behalf to the Irrigation Officer within thirty days of the publication of the notice. Similarly, he should also require every person likely to be affect by construction of the water-course, or interested in the land on which it is proposed t construct the water-course, to submit his petition to the Irrigation Officer stating his objections to the proposed construction, within sixty days of the publication of the notice. Thereafter, he should make a report to the Revenue Divisional Officer regarding the proposed water-course together with a plan showing the alignment thereof., and the objections received by him. under Section 5 of the Act, the Revenue Divisional Officer, after considering the report submitted by the Irrigation Officer, and the objections, passes an order in respect of the proposed construction and the order so passed will be published in the Andhra Pradesh Gazette. The order publishes should contain the particulars mentioned in sub-section (2) of Section 5. An appeal is provided to the District Collector against the said order of the Revenue Divisional Officer.

10. In the instant case, the complaint of the petitioners is that they are likely to be affected by the construction proposed to be undertaken by the respondents. But, it is contended by the learned counsel for the respondents that what they propose to do is only to lay pipes of 6' diameter and certain outlets in the existing bed-width level of the canal and that, this would not, in any way, affect the width or depth of the bed and that, no new channel is being excavated and, therefore, within the meaning of the Act. I am unable to agree with this submission. The expression 'construction' occurring in Section 2 (c), includes extension, improvement or alteration of water-course . The laying of the pipes at the existing bed level of canal would also amount to an improvement or alteration of the water-course and falls within the expression 'construction' under Section 2 (c). If so, under Section 4 of the act, every person likely to be affected by the construction of the water-course should also be required by the Irrigation Officer, to state his objections.

11. It is next contended by the learned counsel for the respondents that the petitioners are not the 'ayacutdars', as the lands in question are not registered under the feeder channel in which the pipes are sought to be laid and, therefore, they would not be entitled to notice under Section 4 (2) (b) of the Act. I am unable to agree with this submission, inasmuch as it is admitted that the petitioners are ayacutdars under 'Pedda Cheruvu' and all that Section 4 (2) (b) requires, is that every person likely to be affected by the construction of a water-course, or interested in the land on which it is proposed to construct the water-course, should be required to submit his petition stating his objections, within the period specified therein. The expression 'every person likely to be affected by the construction of the water-course' does not, necessarily, require that the person affected should be an ayacutdar under a particular water-course which is proposed to be constructed. Any ayacutdar under a particular irrigation work, who is likely to be affected by the construction of a water-course, should be required to state his objections, under Section 4 (2) (b). In the counter affidavit it was merely stated that the provisions of the Andhra Pradesh Irrigation (Construction and Maintenance of Water-Courses) Act of 1965 do not apply to the facts of the instant case. Therefore, impliedly it is admitted that the procedure prescribed under Sections 4 and 5 of the Act has not been followed. The contention that the provisions of the said Act are not applicable, is not correct. The proposed construction falls clearly within the provisions of the said Act, and the respondents are bound to follow the procedure prescribed by the Act before any constructions are carried out. Inasmuch as they have not followed the statutory procedure, the petitioners are justified in approaching this Court for appropriate relief. A writ of Mandamus will, therefore, issue to the respondents directing them to forbear from taking up the construction of any channel or water-course, or otherwise disturbing the existing channel from the village tank called 'Pedda Cheruvu', at the village of Kansanapalli and Seri Mallareddypalli in Andole Taluk, Medak District, without following the procedure laid down by the provisions of the Andhra Pradesh Irrigation 9 Construction and Maintenance of Water-Courses) Act of 1965. It will be open to the respondents to give notices to the persons likely to be affected and follow the procedure laid down by the aforesaid Act and pass appropriate orders and take action accordingly. the writ petition is, accordingly, allowed with costs. Advocate's fee Rs. 100/-

12. Petition allowed.


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