WP/25106/2006 of Chintakayala Balamma, Vs The District Collector, on 22 December 2006

ORDER:

THE HON’BLE SRI JUSTICE V.V.S.RAO

WRIT PETITION No.25106 OF 2006

The petitioner seeks a writ of Mandamus declaring the action ofthe respondents in digging a channel in petitioner’s land in surveyNo.52-3B2 and assigning the tank Poramboke covered by surveyNo.54 of Sidhamma Kandriga village of Kota Mandal, Nellore Districtas illegal and arbitrary. He also seeks a consequential direction tothird respondent (Mandal Revenue Officer, Kota) to cancel theassignment of land in survey No.54 and evict the fourth respondentfrom the said land.

The petitioner is allegedly owner of land admeasuring Acs.8.49comprised in several survey numbers. This land also includes apeace of land admeasuring Acs.0.18 in survey No.52-3B2, adjacent to this, the land in survey No.54 is classified astank poramboke, which was originally assigned to a person belongingto scheduled caste. The fourth respondent herein allegedly purchasedthe said land from the assignee and approached respondents 1 to 3 forformation of irrigation channel from Sidhamma tank in survey No.45,admeasuring Acs.4.00, which is allegedly a private tank irrigatingAcs.60.00 of lands of those belonging to petitioner’s family. Thepetitioner further alleges that the irrigation channel from the said tankcomes up to survey No.51, and there is no channel thereafter. At thebehest of the fourth respondent, Respondents 1 to 3 proposed to dig achannel through petitioner’s land in survey No.52-3B2. In spite ofcomplaining to the third respondent that the fourth respondentpurchased the assigned land, no action was taken for eviction.

At the stage of Admission itself, learned Assistant GovernmentPleader for Revenue (General-A) sought time and filed a counteraffidavit opposing the writ petition. The Mandal Revenue Officer, Kota(MRO), in the counter affidavit, states that the petitioner herein is notthe pattadar of land admeasuring Acs.0.18 in survey No.52-3B2. It is aGovernment land. The entire extent of Acs.4.33 in survey No.52 is notsub-divided and is classified as village site poramboke. The petitionerencroached upon the land and cultivating paddy crop as SivaiJamadar. The land in survey No.54 is not classified as tankporamboke. It is a patta land adjacent to land in survey No.52 and wassub-divided into survey Nos.54/1 to 54/10. The lands in surveyNos.54/1 to 54/8 and survey No.54/10 are patta lands whereas land insurvey No.54/9 admeasuring Acs.0.26 is classified as cart trackporamboke. The land belonging to fourth respondent in surveyNos.54/3 to 54/7 admeasuring Acs.1.62 is not tank poramboke. It is the land belonging to fourth respondent where he is cultivating paddycrops.

It is further stated in the counter affidavit that Sidhamma Kandrigatank in survey No.45 is not private tank. It is a Government tankmaintained by Department of Irrigation, having registered ayacut ofAcs.32.38. The land in survey No.52 (poramboke land) and the drylands of fourth respondent in survey No.54 are not included in theregistered Ayacut. They have no legal rights to use the water in thetank for the irrigation. The enquiries in the village revealed that a smallchannel existing in survey No.52, which is encroached by thepetitioner, was being used by the fourth respondent for irrigation. Thepetitioner closed the said channel as if the land in survey No.52 ispatta land and causing loss of crop to fourth respondent. As the landin survey No.52 is Poramboke land, the Government has right to closethe channel if required in the said land. As the fourth respondentraised paddy crop, the closure of the channel by the petitioner resultedin drying up of crops in the land of the fourth respondent.

Arguments

The petitioner filed a reply affidavit traversing adverse counterallegations. She states that she obtained pattadar pass book(PPB)/title deed in respect of the land admeasuring Acs.8.49 in varioussurvey numbers including the land in survey No.52-3B2 admeasuringAcs.0.18, that the adangal and extract of 10(1) account also shows thatthe petitioner is owner of the land and that her land in survey No.52-3B2 is nothing to do with survey No.52. The allegation that there is achannel in survey No.51 is denied asserting that unless her land isacquired, the channel cannot be dug in her land.

Learned counsel for the petitioner relies on the xerox copy of thePPB in support of the contention that the land in survey No.52-3B2 is patta land and is classified as paddy field. Therefore, hesubmits that the respondents cannot dig a channel in the petitioner’sland. He also points out that a channel is dug up to survey No.51 andsurvey No.51 being patta land, no channel can be dug. Per contra,the learned Assistant Government Pleader refutes these contentions.

The petitioner filed the writ petition alleging that there is existingchannel upto survey No.51 and respondents 1 to 3 are proposing todig a channel in survey No.52-3B2 at request of the fourth respondent,which is in occupation of land in survey No.54. Counter affidavit isfiled denying such an allegation. The respondents contend that thepetitioner is not pattadar of land in survey No.52-3B2. They alsoassert that there was existing channel in survey No.52 irrigating theland in survey No.54 belonging to fourth respondent and respondents1 to 3 also alleged that the petitioner closed the channel in surveyNo.52. The case of the respondents is not denied. The reference to the PPB also does not support the case. As seen from the xerox copyof the PPB, it is found that as many as thirty survey numbers/surveysub-division numbers are mentioned. In respect of certain surveynumbers including survey No.52-3B2, ‘x’ mark has been placed, whichcreates a doubt. In the absence of any other supporting material, thepresumption attached to a PPB under Section 6-B of A.P.Rights inLand and Pattadar Pass Books Act, 1971 cannot be implied intoto. Secondly, the respondents admit that the petitioner has encroachedthe land in survey No.52-3B2. Therefore, if any channel has to be dugin that land, the respondents have either evict the petitioner from theland or dig a channel so that crop if any raised by her is not damaged. Be it made clear that even when the Government land is encroachedupon by a person, it is always open to the Government to dig achannel without resorting to any land acquisition. If the land isGovernment land, it is always open to the Government to dig a channelto facilitate free flow of water by gravitation from a Government sourceof irrigation to the agricultural fields. In this case, the petitioner and thefourth respondent are not registered as ayacutdars and if they aredrawing water from Sidhamma Cheruvu, the respondents should takenecessary action after giving notice to them. The fourth respondent isalready cultivating wet crops in the land in survey Nos.54/3 to 54/7 andthe land in survey No.54/9 (Acs.0.26 is only classified as cart trackporamboke). Therefore, it is for the third respondent to takeappropriate action in this regard. For any reason, if the patta land is tobe used for any public purpose, needless to say, respondents have tofollow due process of law.

The writ petition, with the above observations, is disposed of. Nocosts.

22.12.2006.pln

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(V.V.S.RAO,J)