Decided on August 04,1971



- (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 course is the only source of water to the said lands that the revenue authorities and the Executive Engineer, Public Works Department, 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 Kandanapalli 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 1955 (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 construction of the channel. A counter affidavit has been filed 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, Ramanpalli 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 550 acres covering three villages; viz: Gadi Peddapur, Kansanpalli and Seri Mallareddypalli, that there is a feeder channel taking off from the sluice of Pedda Cheruvu in Gadi Peddapur which irrigates certain extent of lands in Seri Mallareddypalli and Ramsanpalli, that the petitioners entered the feeder channel and were drawing out water unauthorisedly for irrigating their lands, that they were tampering with the irrigation sources 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 arid 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 water course is being excavated. The allegation of the respondents is that the lands of the petitioners are not registered under the feeder channel and that thev 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 of 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.
(3.) On the aforesaid averments, the short question that arises for consideration in this writ petition is, whether the respondents 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 notice the relevant provisions of the Act.;

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