Sanjireddy Sanji Reddy vs The State Of Andhra Pradesh
2021 Latest Caselaw 2316 AP

                                                                      MVR,J
                                                          W.P.No.8807 of 2021
                                     1


               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

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

"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.

MVR,J W.P.No.8807 of 2021

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.

MVR,J W.P.No.8807 of 2021

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

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.

MVR,J W.P.No.8807 of 2021

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

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.

MVR,J W.P.No.8807 of 2021

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.

MVR,J W.P.No.8807 of 2021

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

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

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

HONOURABLE SRI JUSTICE M.VENKATA RAMANA

W.P.No.8807 of 2021

July 08, 2021

Rns