IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.10196 of 2005 Between: Gokanakonda Village Farmer's Welfare Society, (Society No.606/04),rep.by its Secretary N.G.Bose S/o Madhusudana Rao Gokanakonda Village,Vinukonda Mandal, Guntur District. ..... PETITIONER AND 1 Executive Engineer,Minor Irrigation,Colectorate Compound, Guntur. 2 Assistant Engineer,Minor Irrigation,Vinukonda, Guntur District. 3 Assistant Divisional Engineer,ADE (oper) SPDCL,Vinukonda,Guntur District. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ, or order or direction more particularly in the nature of Writ of mandamus declaring the action of the respondents in insisting for the petitioners to get permissions to draw water from wells which get seepage water from natural stream and not responding when such applications are made as unconstitutional and consequently declare that the respondent do not have any power to insist for the permission to draw water from wells or from natural stream and do not have power to issue the notices dt. 30-3-2005 and pass such order or other orders as deemed fit in the interest of justice. Counsel for the Petitioner: SRI K.S.MURTHY Counsel for the Respondents: GP FOR IRRIGATION & COMM AREA DEV. The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.10196 of 2005 ORDER: Gokanakonda Village Farmer's Welfare Society ﬁled the instant writ petition aggrieved by a communication/notice issued by the second respondent informing the petitioner that drawal of water by motors from Gundlakamma River is illegal, and that if proper explanation is not given, motors and engines will be seized. Petitioner seeks a writ of mandamus declaring that the respondents do not have power to insist upon the petitioner to obtain permission to draw water from the natural stream, Gundlakamma. The petitioner is a society registered under the Andhra Pradesh Societies Registration Act, 2001. It has twenty three members. All of them are drawing water form Gundlakamma stream at least from 1994. They dug wells on the bank of the stream and used the water percolating into the wells. It appears, when there was an attempt by the respondents to collect water tax from similar farmers, Bharatiya Kisan Sangh ﬁled a writ petition, being W.P.No.22536 of 1994. The same was disposed of by this Court observing that unless necessary procedure is followed under Sections 3, 4 and 5 of the Andhra Pradesh Water Tax Act, 1988 (Water Tax Act, for brevity), respondents cannot collect the same. Again when there was such a move, some of the members of the petitioner society ﬁled W.P.No.8275 of 2002, which was disposed of on 30.04.2002 directing the Revenue Divisional Oﬃcer to dispose of the appeal dated 22.04.2002 ﬁled by the petitioners therein. Petitioner alleges that the appeal still remains pending, and no orders are passed, in spite of petitioner repeatedly approaching the Revenue Divisional Officer. Be that as it is, the second respondent has now issued impugned notice dated 30.03.2005 threatening to seize the motors and engines belonging to the farmers. Therefore, the writ petition is filed. The ﬁrst respondent has ﬁled a counter aﬃdavit making the following allegations. The petitioner constructed multistoried building on the left bank of Gundlakamma River. It formed big well and is drawing water by arranging PVC pipes. Gundlakamma River is under the control and jurisdiction of Minor Irrigation Section, Vinukonda. But the petitioner did not obtain any permission for drawing the water. Second respondent inspected the southern side of Ummadivaram Village in Vinukonda Mandal in February 2005, and noticed that number of ﬁsh ponds are constructed. On enquiry it was noticed that M/s.N.G.Bose and Mohan Rao are the owners of the ﬁsh tanks. Second respondent explained that without obtaining permission of the Irrigation Department water cannot be drawn from Gundlakamma River. They, however, informed that no such permission is required. Denying the allegation that respondents have no authority to collect water tax or grant permission, it is stated that management of Minor Irrigation Tanks, Panchayat Tanks and Natural Irrigation System is entrusted to Irrigation Department, and water can only be drawn for drinking purpose on seasonal basis. The petitioner, however, set up pesiculture for a commercial purpose and tapped water from Government source of Irrigation by digging a channel. Therefore, notice was issued. Petitioner ﬁled reply aﬃdavit denying the allegations. It is also stated therein that petitioner approached second respondent and made a representation requesting registration of the authorities, in vain. Learned Counsel for the petitioner made two submissions. First, the second respondent is not competent authority to issue impugned notice. Secondly, he submits that it is only when farmers draw water without proper registration as ayacutdars from Government source of Irrigation, respondents can take necessary action. In the absence of any notiﬁcation under Section 4 of the Water Tax Act, impugned action is unsustainable. Per contra, the learned Assistant Government Pleader for Irrigation Department submits that Section 21 of the Andhra Pradesh Irrigation Utilization and Command Area Development Act, 1984 (CAD Act, for brevity), prohibits drawal from Government source of Irrigation for pesiculture, and therefore, the petitioner’s activity is illegal. Nextly, she submits that Gundlakamma River is a natural river, and without proper permission, water cannot be drawn directly or by digging wells on the banks by percolation. At this stage two issues are still pending with the authorities. First, the appeal ﬁled by the petitioner with regard to the collection of water tax pursuant to order of this Court dated 30.04.2002 in W.P.No.8275 of 2002. This matter is pending before the Revenue Divisional Oﬃcer, Narsaraopet. Secondly, the representation/application made by the petitioner on 20.04.2005 and its members for registering as ayacutdars under the stream is still pending with the authorities. Consideration of these two applications is altogether diﬀerent from the issue as to whether Gundlakamma River/stream is a Government source of Irrigation. Here, this Court may advert to the submission of the learned Assistant Government Pleader based on CAD Act. Section 21 thereof empowers the Government or any authorized oﬃcer to stop supply of water to any land or ﬁeld channel under certain circumstances, inter alia, to prevent the wastage or misuse of water. It is rather doubtful as to whether CAD Act is applicable to the facts of the case. Subsection (3) of Section 1 of CAD Act declares that provisions of CAD Act shall be applicable to command areas, namely, Nagarjuna Sagar Project Left/Right Canals, Sriram Sagar Project and Tungabhadra Project and such other areas as the Government may notify. Unless it is shown by the Government that Gundlakamma River/stream also falls within any of the command areas as mentioned hereinabove, the said Act has no application. Respondents have not placed before this Court any material to show that Gundlakamma River also falls within Nagarjuna Sagar Project command area or any other command area. In pith and substance Water Tax Act is a legislation providing for rationalization of levy and collection of water tax in the State. Section 3 is the charging section and reads as under. 3.Power of the Government to levy and collect water tax:- With eﬀect on and from the date of commencement of this Act, the Government shall be entitled to levy and collect in respect of every land receiving water for Irrigation and Aqua- culture purposes from any Government source of irrigation notiﬁed under Section 4, for each fasli year at rates specified in the Schedule. Power to levy and collect water tax in respect of every land receiving water for Irrigation and aqua culture purposes, however, is not plenary power. It is restricted to the cases when water is supplied from Government source and irrigation as notiﬁed under Section 4 of the Water Tax Act for each fasli year. Section 4 of the Water Tax Act empowers the District Collector to specify by a notiﬁcation the Government sources of irrigation and the lands under the commandable ayacut therein lying within his jurisdiction. To a pointed question by the Court, the learned Assistant Government pleader submits that there is no such notiﬁcation issued by the District Collector specifying Gundlakamma River passing through Gokanakonda Village as Government source of irrigation. In the absence of such notiﬁcation, water tax cannot be collected. Insofar as obtaining permission for drawing water is concerned, petitioner has already approached the authorities and it is for the authorities to consider the request. At least from 1994 the farmers drawing water from Gundlakamma River are approaching this Court for redressal of diﬀerent types of grievances. This can be given a quietus if a high Oﬃcial of the District, like District Collector, who is a competent authority under Section 4 of the Water Tax Act, looks into the matter and takes a ﬁnal decision. Therefore, this Court directs the District Collector, Guntur, to personally look into the matter and take necessary decision under the relevant law. Till such decision is taken, the second respondent shall not take any coercive action as proposed in the impugned notice. However, this Court makes it clear that if there is a shortage of drinking water, it is always open to the public authorities to prevent any person from drawing water from a river or stream which vests in the sovereign of the State. The Writ Petition is disposed of accordingly. No costs. ____________ (V.V.S.RAO, J) 17.09.2008 vs To 1 Executive Engineer,Minor Irrigation,Colectorate Compound, Guntur. 2 Assistant Engineer,Minor Irrigation,Vinukonda, Guntur District. 3 Assistant Divisional Engineer,ADE (oper) SPDCL,Vinukonda,Guntur District. 4 2CCs to GP For Irrigation & Comm Area Dev., High Court of A.P., Hyderabad. 5 2CD copies Form-NIC-OGS/WP{KSV}