Andhra Pradesh High Court - Amravati
Sanjireddy Sanji Reddy vs The State Of Andhra Pradesh on 8 July, 2021
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
MVR,J
W.P.No.8807 of 2021
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HON'BLE SRI JUSTICE M.VENKATA RAMANA
W.P.No.8807 of 2021
ORDER:
The petitioners 1 to 5, 7, 8, 10 to 15 being residents of M Chintakunta Village, Gospadu Revenue Mandal, and the petitioners Nos.6 and 9 being residents of H S Kottala, Nandyala Revenue Mandal, sought an appropriate Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the inaction on the part of the respondents Nos.3 to 5 in considering the request made by the petitioners for opening of Sluice towards south of the Kanala Nagamma Tank, Kanala village, Nandyala Mandal, Kurnool District by increasing the size of the Vent at Point 146/R of K.C.Canal enabling the petitioners to irrigate their agricultural lands as arbitrary, illegal and abdication of statutory duty cast on them and violative of the fundamental rights guaranteed to the petitioners under Articles 14, 19 and 21 of the Constitution of India and consequently direct the respondents Nos.2 to 5 to increase the size of the Vent at Point 146/R of the Sluice increasing water supply to Kanala Nagamma Tank, Kanala village, Nandyala Mandal, Kurnool District in proportion to consumption of water by Julepalli and Chintakunta farmers and also to reopen the fourth Sluice towards the Southern side of the Tank, in this writ petition.
2. The respondents 3 to 5 are in the hierarchy of Irrigation Department, Government of Andhra Pradesh in Kurnool District. They are mainly concerned to this matter.
3. Kanala Nagamma Tank is a source of irrigation for about 1391.67 acres. It comprised of Ac.823.00 cents, where sugarcane is grown and Ac.563.67 cents is used for raising paddy. This tank is fed by a local stream as a natural source. Regenerated water from 13th block of MVR,J W.P.No.8807 of 2021 2 Telugu Ganga Project(TGP Project) Canal also flows as another natural source into this tank.
4. This tank has three sluices for letting out water for irrigation purpose to the west. K.C.Canal is flowing to the east of this tank, which is one of the main sources of irrigation covering Kurnool and Kadapa Districts. There is a sluice at KM 179.30 of K.C.Canal, through which water is being let into the Kanala Nagamma Tank only as a supplementation and it is not, a regular supply source. As and when required and depending on the availability of water in K.C.Canal, water will be let through this sluice into this tank. The present size of this sluice is 0.6m (Dia) with a discharge capacity of 35 c/s (Cubics per second).
5. A suit was filed in the Court of learned Principal Junior Civil Judge, Nandyal, in O.S.No.424 of 2003 (which was later transferred to the Court of learned Additional Senior Civil Judge(FTC), Nandyal) in representative capacity under Order I Rule 8 CPC by some of the Ayacutdars (agriculturists) under Kanala Nagamma Tank questioning the proposal to increase the size of the Vent at point 146/R1 to this tank feeder Channel as illegal and being detrimental to their interest. The subject matter of the suit also included closure of another sluice to this tank, which was stated to be unauthorised and illegal, through which water was being let out from this tank to Julepalli and Chintakunta villages. Further relief sought in the suit was for grant of permanent injunction restraining the defendants No.1 to 3 therein, who are the respondents 2 to 4 in this writ petition, from increasing the size of the vent at point 146/R, among other reliefs. On contest, the said suit was decreed by the judgment dated 11.02.2008. This decree and judgment have become final since no appeal was preferred there against.
6. The decree drawn therein contains the following clauses:
MVR,J W.P.No.8807 of 2021 3 "1. That the suit be and the same is hereby decreed with costs declaring that the proposal of the present design to have the size of the vent at the point 146/R to the Kanala Nagamma Tank feeder channel sluice shown as CCC in the plaint plan sluice at 0.70 diameters with RCC pipe is illegal and insufficient and detrimental to the increase of ayacutdars of Kanala Nagamma Tank without closing the fourth unauthorised sluice situate towards the south of the said Tank;
2. That a permanent injunction be and the same is hereby granted restraining the defendants from proceeding with the construction of design of the vent at the point 146/R to the CCC Channel i.e. Kanala Nagamma Tank feeder sluice with 0.70 diameters with RCC pipe as proposed and designed now under modernization scheme;
3. That a mandatory injunction be and the same is hereby granted directing the defendants either to close the fourth unauthorised sluice situate towards south of the Kanala Nagamma Tank or to increase the size of the vent at the point 146/R of sluice to the channel marked as C C C in the plaint plan and to increase sufficient water supply to the said Kanala Nagamma Tank in proportion of the consumption of water by Julepalli and Chintakunta farmers through the fourth sluice of the said tank within two (2) months from the date of this Judgment;
4. That if the defendants fails either to close the fourth unauthorised sluice situate towards south of the Kanala Nagamma Tank or to increase the size of the vent at the point 146/R of sluice to the channel marked as CCC in the plaint plan and to increase sufficient water supply to the said Kanala Nagamma Tank in proportion of the consumption of water by Julepalli and Chintakunta farmers through the fourth sluice of the said tank within two (2) months from the date of this Judgment as stipulated in Clause No.3 supra, the plaintiffs are at liberty to get the same done through the process of the Court;
and
5. that the defendants do pay to the plaintiffs a sum of Rs.4346.00 being the costs of the suit as taxed by the Officer of the Court and defendants do bear its own costs of Rs.1500.00." Among them, relevant for the present purpose is Clause 3.
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7. Complaining that this judgment and decree were not implemented, E.P.No.73 of 2010 was filed by the plaintiffs (D.Hrs) therein on the file of the Court of learned Principal Junior Civil Judge, Nandyal, invoking Order XXI Rule 35 CPC, to direct the 4th respondent, viz., the Executive Engineer, K.C.Canal, Nandyal, to close the fourth unauthorised sluice to Kanala Nagamma Tank. When a direction was given for this purpose by an order dated 13.04.2012 by the Executing Court, the respondents preferred C.R.P.No.2283 of 2012 on the file of this Court, it was dismissed confirming the order of the Executing Court.
8. The grievance of the petitioners in this writ petition is that in spite of the direction of the competent Civil Court, as per the decree and judgment, size of the vent at point 146/R of this sluice was not increased for supply of sufficient water in proportion to their consumption and that, they remained quiet. The petitioners further complained that they are suffering hardship on account of shortage of water and particularly, in view of carrying out the directions in closing this fourth sluice to the Kanala Nagamma Tank in the year 2019. Thus, the petitioners stated that in view of this situation, their lands are left fallow. They further stated that they were not parties to the above suit and that they were unaware of the same which they came to know when the above sluice was closed.
9. The petitioners further stated that they gave a representation dated 20.11.2019 to the respondents 3 to 5 expressing their difficulty in this respect due to closure of the fourth sluice affecting their source of income on which, no steps were taken.
10. In the above circumstances, the petitioners claim that they were constrained to approach this Court, since their right to life is affected, which is guaranteed under the Constitution of India.
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11. The fourth respondent filed a counter affidavit opposing this writ petition. Referring to the nature of Kanala Nagamma Tank, its geographical location, sluices it has, the catchment area for receipt of water into this tank and also the proceedings relating to O.S.No.424 of 2003 as well as execution petition laid basing on the decree passed therein before the Court of learned Principal Junior Civil Judge, Nandyal, as well as orders of this Court in C.R.P., it is specifically contended that the fourth sluice was closed, in view of the orders of the Court.
12. The 4th respondent further stated in the counter affidavit that increasing the discharge capacity of sluice at km 179.30 of K.C.Canal is not possible, since it would affect the flow in the canal downstream. The 4th respondent further contended that the petitioners are only localized ayacutdars of Julepalli Supply Channel and that as per K.C.Canal localization pattern, the lands in Julepalli, H S Kottala and Chintakunta villages have to be irrigated by Julepalli supply channel from K.C.Canal main channel.
13. Referring to representation of the petitioners, it is stated that though the K.C.Canal localization pattern for these villagers has to be irrigated by Julepalli supply canal from K.C.Canal main channel, in view of less discharge released at the tail end, supplementation was arranged from Kanala Nagamma Tank through the additional fourth sluice. It is further stated by the 4th respondent in the counter affidavit that the original ayacutdars under Kanala Nagamma Tank objected for the fourth sluice, leading to institution of O.S.No.424 of 2003 on the file of the Court of learned Principal Junior Civil Judge, Nandyal.
14. It is further stated in this counter affidavit that providing additional 4th vent at Kanala Nagamma Tank to supplement the water to MVR,J W.P.No.8807 of 2021 6 Chintakunta ayacutdars is necessary, since they are at tail end, who have been suffering for sufficient water.
15. It is also stated in the counter affidavit that additional fourth vent at Kanala Nagamma Tank to supply water to Chintakunta ayacutdars can be provided at 60 cm higher than the sluices at Kanala Nagamma Tank and also to supplement the interests of Kanala Nagamma Tank ayakutdars without increasing the size of bed at 146/R of K.C.Canal main channel.
16. No reply affidavit is filed on behalf of the petitioners to this counter affidavit.
17. Sri V.R.Reddy Kovvuri, learned counsel for the petitioners and learned Government Pleader for Irrigation, addressed arguments.
18. Now, the point to determine is, "Whether the request of the petitioners particularly to increase the size of the vent at point 146/R of the sluice is proper and also to reopen fourth sluice to the south of Kanala Nagamma Tank."
19. The dispute is for providing irrigation facility to the agricultural lands claimed by the petitioners, particularly, located in Julepalli, HS Kottala and Chinthakunta villages. The petitioners have filed a rough sketch depicting topography of Kanala Nagamma Tank, it's sluices the arrangement by which the water from K.C.Canal main channel is drawn into this tank at point 146/R including location of the vent and also Julepalli Supply Channel, carved out from K.C.Canal main channel to meet the irrigation purposes of the agricultural lands at the villages to which the petitioners belonged to. This rough sketch is giving a clear understanding of the situation at the ground level.
20. A copy of the rough sketch filed by the petitioners for facility, is annexed to this order at page No.12.
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21. S1, S2, S3 in this rough sketch are the sluices originally serving the purposes of this water body. They are legal and authorized. S4 is the sluice, which was declared unauthorized and was closed as per the execution proceedings in O.S.No.424 of 2002. C2, C2, C2 is the channel drawn from S4 sluice shown in this rough sketch, for drawal of water from this tank to meet the requirements of Chintakunta, HS Kottala and Julepalli village agricultural fields. Upon closure of S4 sluice, it is obvious that this channel C2, C2, C2 could not serve any purpose.
22. Kanala Nagamma Tank is admittedly meeting the requirement of water for the localized ayacut under it either for the purpose of raising sugarcane crop or for paddy crop. It is not in dispute that drawal of water from K.C.Canal main Channel running to the east of this tank through a vent at point 146/R was not a regular feeder. In the sense, water was not allowed to be drawn regularly through this vent into this tank. It was only a supplemental arrangement to meet the immediate requirements when there is shortfall for agricultural purpose. Thus, the water drawn from K.C.Canal into this tank is a regulated supply and only in the contingencies stated above, the water is being drawn into this tank.
23. The nature of this 4th sluice is well discussed in the judgment in O.S.No.424 of 2003, a copy of which is filed by the petitioner as a part of material papers. Learned Senior Civil Judge, who decided this matter, considered the testimony of the then Executive Engineer, K.C.Canal of Nandyal in this context. The testimony of this witness on behalf of the defendants in the suit reflected in para-14 of this judgment makes out that this S4 sluice and C2, C2, C2 channel, were unauthorized and thus were held illegal. No record as such was produced in the course of trial in the suit by the Executive Engineer concerned, who also admitted that this fourth sluice was newly opened MVR,J W.P.No.8807 of 2021 8 and which was not a part of original design of K.C.Canal. It is further pointed out in this judgment that permission of Chief Engineer though required to open the sluice and carve out the channel therefrom was not produced.
24. The evidence of this Executive Engineer, K.C.Canal in the above suit also reflected that the system of irrigation under K.C.Canal came into existence including carving out Julepalli supply channel marked C1, C1, C1 in the above sketch, in the year 1835. The natural source drawing water to this Kanala Nagamma Tank, was a times immemorial feature. For the first time, the channel C, C, C shown in the sketch, from the vent at point 146/R from K.C.Canal main channel was provided in the year 1959 and since then, the supervision of this tank came under Irrigation Department. The evidence of the Executive Engineer in the above suit made clear that C2, C2, C2 channel from unauthorised fourth sluice was dug subsequent to C, C, C channel and Julepalli supply Channel.
25. The contention of the petitioners is that C2, C2, C2 channel was in existence for more than 40 years meeting their requirements. However, the judgment in the suit O.S.No.424 of 2003 did not support this version. Further, the evidence of the Executive Engineer in the above suit made clear that there is no necessity for opening a fourth sluice and to have C2, C2, C2 channel, since Julepalli channel is designed to supply water for 3096 acres.
26. Thus, it is manifest from the material on record that there is a definite and regular source of irrigation meeting the purposes of the petitioners for their agricultural lands at Chintakunta, H S Kottala and Julepalli villages. Whereas, the common area under Kanala Nagamma Tank is distinct and different than the source of irrigation provided to the afore stated villages.
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27. The difficulty appears to be relating to tail end farmers. The petitioners suggest that they belong to this category of farmers having lands at the tail end of Julepalli Supply Channel. Julepalli Irrigation Channel has to serve the needs of 3096 acres of command area. It is for the respondents to look into and if there were any breaches to this Julepalli Supply Channel from the point, where it takes off K.C.Canal main Channel and reaches these three villages. The petitioners cannot draw water from Kanala Nagamma Tank to meet their requirements in the above circumstances, which is already catering the needs of the ayacuts under it.
28. It appears upon modernization of K.C.Canal system in the year 1999, the command area under this tank has increased to 1391.67 acres, as can be seen from para - 5 of the counter affidavit of the 4th respondent. Added to it, the availability of water in Kanala Nagamma Tank, is on account of the natural source of supply it has through a local stream or rivulet. It did not have source entirely from K.C.Canal main channel, which is the source of water supply to Julepalli Supply Channel. Therefore, if the request of the petitioners is permitted, for drawal of water from Kanala Nagamma Tank, it would affect the stabilized and authorised area under cultivation under it. The petitioners cannot approach by means of this writ petition, for their benefit from both the sources and to the detriment of the ayacutdars, who are completely dependent on the water supplies from Kanala Nagamma Tank. These ayacutdars are not parties to this writ petition.
29. Making a request to reopen a fourth sluice by the petitioners, which is held to be illegal and unauthorised by the competent Civil Court, is highly improper. What could not be done by them or by the respondents in earlier civil litigation is attempted to be achieved by means of this writ petition.
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30. The counter affidavit of the fourth respondent is clear that widening the vent at point 146/R leading to increased discharge of water from K.C.Canal into this Kanala Nagamma Tank, would affect the flow in the canal downstream. It is an answer to a part of direction No.3 in the decree in O.S.No.424 of 2003.
31. When a representation was given by the petitioners pursuant to interim orders of this Court, in I.A.No.1 of 2021 dated 06.05.2021, the fourth respondent replied by his letter dated 11.06.2021, a copy of which is filed along with the counter affidavit. Pointing out the irrigation facility available under Kanala Nagamma Tank meeting the requirements of total ayacut of about 1200 acres, it is stated that increasing diameter of sluice is not required referring to the capacity of the existing sluice.
32. That being the version of the fourth respondent in response to the representation of the petitioners, it is rather surprising to find what is stated further in para - 7 of the counter affidavit by him in this writ petition. This part of the counter affidavit is extracted here under:
"It is respectfully submitted that providing additional 4th vent at Kanala Nagamma Tank to supplement water to chinthakunta Ayacutdhars is necessary as they are in tail end and suffering for want of sufficient water. The additional 4th vent at Kanala Nagamma tank to supplement water to Chinthakunta Ayacutdhars (petitioners) can be provided at 60 cm higher than the sluices at Kanala Nagamma tank so that the interests of the Kanala Nagamma Tank ayacutdars shall also be safe guarded without increasing the size of vent at 146/R of K.C.main canal."
33. The extracted portion is not reflected in the reply of the fourth respondent to the representation of the petitioners. Thus, it is an improved version now available. When already a competent civil Court held against opening an additional fourth vent to this tank and that the petitioners have a separate channel drawn from K.C.Canal main channel MVR,J W.P.No.8807 of 2021 11 to serve their needs, the suggested course in the counter affidavit is uncalled for. When opening an additional source, requires permission of the Chief Engineer, it is not known whether the fourth respondent had instructions from the Chief Engineer of this K.C.Canal irrigation system or the third respondent Superintendent Engineer to state so in the counter affidavit. If the suggested solution is considered possibility of the ayacutdars or farmers depending on Kanala Nagamma Tank to suffer immensely is foreseen. It is certain that providing such additional fourth vent to this tank would lead to drawing water from a source, which is not entirely dependent on K.C.Canal much to consternation and detriment of the farmers, who are dependent on this tank for agricultural purposes. Apparently this para - 7 of the counter affidavit is a mischievous attempt by the 4th respondent, obviously with an intention to see that the decree and judgment of the civil Court in O.S.No.424 of 2003 are set at naught.
34. The petitioners should necessarily to work out their remedies to meet their requirements relating to tail end lands under Julepalli canal system and not by meddling with settled and stabilized area under cultivation under Kanala Nagamma Tank.
35. Therefore, there is no justification in the request of the writ petitioners. Consequently, this writ petition has to be dismissed.
36. In the result, this writ petition is dismissed. No costs. All pending petitions stand closed. Interim orders if any, stand vacated.
_________________________ JUSTICE M. VENKATA RAMANA July 08, 2021.
Rns MVR,J W.P.No.8807 of 2021 12 ANNEXURE :: K.C.Canal ::
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Note:
Indication of K.C.Canal in this image is by me, since the rough sketch filed by the petitioners did not reflect it's location.
_________________________ JUSTICE M. VENKATA RAMANA MVR,J W.P.No.8807 of 2021 13 HONOURABLE SRI JUSTICE M.VENKATA RAMANA W.P.No.8807 of 2021 July 08, 2021 Rns