IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos:24974 and 26316 of 2000 WRIT PETITION NO:24974 of 2000 Between: V.Sudhakar Reddy, S/o. Sri Subrahmanyam Reddy, Kuchivada Palem Villgage, Naidupet Mandal, Nellore District. ..... PETITIONER AND 1 The Executive Engineer, Panchayat Raj Department , Gudur , Nellore District. 2 The Dy., Executive Engineer, Panchayat Raj Department , Naidupeta, Nellore District. 3 The District Collector ,(Panchayat Wing) Nellore, Nellore District. 4 The Sarpanch, Kuchivada Gram Panchayat, Naidupeta Mandal, Nellore District. .....RESPONDENTS Counsel for the Petitioner:MR.V.SUDHAKAR REDDY Counsel for Respondent Nos.1 to 3: AGP FOR PANCHAYAT RAJ Counsel for Respondent No.4: MR.P.KRISHNA REDDY WRIT PETITION NO:26316 of 2000 Between: 1 D.Sreenivasulu S/o.Late Venkata Subba Reddy R/o. Kuchivada Palem Village , Naidupet Mandal Nellore dist 2 D.Ramachandra Reddy S/o.Late Venkat Subba Reddy R/o. Kuchivada Palem Village , Naidupet Mandal Nellore dist 3 D.Chandra sekhar Reddy S/o. Ratna Reddy R/o. Kuchivada Palem Village , Naidupet Mandal Nellore dist 4 P.Rama Raghava Reddy S/o.Vasudeva Reddy R/o. Kuchivada Palem Village , Naidupet Mandal Nellore dist 5 T.Gopalaiah S/o.Vemnkata Subbaiah Setty R/o. Kuchivada Palem Village , Naidupet Mandal Nellore dist ..... PETITIONERS AND 1 The Dist Collector Nellore 2 The Superintending engg Panchayat raj , Nellore 3 The Executive engg panchayat raj , Gudur , Nellore Dist 4 The Mandal Revenue Officer Naidupet Mandal , Naidupet , Nellore Dist 5 V.Sudhakar Reddy S/o. Subrahmanya reddy R/o.Kuchiwada Village , naidupet Mandal Nellore dist 6 Vakati Rama Subba Reddy S/o.Narayana Reddy R/o.Kuchiwada Village , naidupet Mandal Nellore dist 7 V.Saraswathamma W/o.Rama Subba Reddy R/o.Kuchiwada Village , naidupet Mandal Nellore dist 8 V.Haritha W/o.Sudhakara Reddy R/o.Kuchiwada Village , naidupet Mandal Nellore dist 9 V.Govinda Reddy S/o.Venkata Subba Reddy R/o.Kuchiwada Village , naidupet Mandal Nellore dist 10 P.Devasena W/o.Hanuma Reddy R/o.Kuchiwada Village , naidupet Mandal Nellore dist 11 T.venkata Krishnaiah S/o.Chengaiah Chetty R/o.Kuchiwada Village , naidupet Mandal Nellore dist 12 K.Ratnaiah S/o.Ahuraiah R/o.Kuchiwada Village , naidupet Mandal Nellore dist 13 Balli Ratnaiah S/o.Yesudasu R/o.Kuchiwada Village , naidupet Mandal Nellore dist 14 Balli Yesudasu S/o./Purishotham R/o.Kuchiwada Village , naidupet Mandal Nellore dist 15 Karna Moseiah S/o.Ahuramaiah R/o.Kuchiwada Village , naidupet Mandal Nellore dist R.R.5 to 15 are impleaded as per court order in W.P.MP. 19989/02,dt.27-9-00 .....RESPONDENTS Counsel for the Petitioners:MR.P.KRISHNA REDDY Counsel for Respondent Nos.5 to 15: MR. V.SUDHAKAR REDDY Counsel for Respondent Nos.1 to 4:AGP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following : COMMON ORDER: These two writ petitions are ﬁled by the residents of Kuchivadapalem Village, Naidupet Mandal, Nellore District, with competing claims. The petitioner in Writ Petition No.24974 of 2000 prayed for a writ of mandamus to declare formation of road along Kuchivada donka in Survey Nos.81, 67 and 44 on Naidupet – Chilamathuru Road without providing culverts as detrimental to the ayacutdars of Kuchivada tank. The petitioners in Writ Petition No.26316 of 2000 prayed for a writ of mandamus to direct respondents 1 to 4 not to provide culverts to the road. Heard Sri V.Sudhakar Reddy, learned counsel for the petitioner in Writ Petition No.24974 of 2000 and respondent Nos.5 to 15 in WP.No.26316 of 2000, the learned Assistant Government Pleader for the oﬃcial respondents in both the writ petitions and Sri P.Krishna Reddy, learned counsel for respondent No.4 in Writ Petition No.24974 of 2000 and the petitioners in WP.No.26316 of 2000 and perused the record. The case of the petitioner in WP.No.24974 of 2000 in a nutshell is that he is a member of the Managing Committee of Kuchivada Tank Water Users Association and also an ayacutdar of Kuchivada tank; that Kuchivada Village is situated on the western side of Swarnamukhi River; that Kuchivadapalem is situated on the eastern side of Swarnamukhi River; that there is a donka leading from Kuchivada Village emanating from Naidupet – Chilamathuru road to Kuchivadapalem via Swarnamukhi River and that respondent No.4 with the permission of respondent Nos.1 to 3 laid a road from Kuchivada Village to a distance of 300 meters along the said donka with Jawahar Rojgar Yojana funds. It is the further case of the petitioner that as per the Field Measurements Book (FMB), there are three recognized channels i.e. two irrigation channels and one drainage channel crossing the said donka. The grievance of the petitioner is that respondent No.4 without providing for any culvert, laid a gravel road along the donka. The petitioner pleaded that if the culverts are not provided, the ayacutdars of Kuchivada tank, whose lands are situated on the northern side of donka, will not get water from Kuchivada tank to irrigate their lands, which results in ﬂood and drainage water from the lands situated on the southern side of the said donka not being let into the northern side of donka leading to spoiling of crops raised on the southern side lands. The petitioner relied on the report of the Assistant Engineer, (I & CAD), W.S.M. Section, Ozili at Gudur submitted to the Deputy Executive Engineer, Venkatagiri, wherein he emphasized the necessity of providing for vents to the road. The petitioners in WP.No.26316 of 2000, however, have come out with a converse version. According to them, Kuchivada tank did not have proper water supply and it is only a rainfed tank; that when the tank was in existence more than 50 years back, there were supply channels starting from the tank running towards north and other directions; that at that time, there was a donka (pathway) connecting Naidupet- Chilamathuru road with Swarnamukhi River and that there was only one supply channel starting from Kuchivada tank running towards north across the donka. They averred that the said channel was running from the tank through the lands of agriculturists and as there was no assured supply of water through the channel, the ayacutdars started irrigating their lands with the help of ﬁlter points/borewells and in course of time, the tank was occupied by weaker sections of the society and converted into agricultural lands and hence, there was no necessity for any ﬁeld channels and neighbouring landlords closed the channel encroaching upon the channel poramboke lands. They further averred that the pathway was converted into regular road, which is now known as Naidupet – Chilamathuru road to Swarnamukhi River and that during rainy season, the drainage water, if any towards north or south of the road, will ﬂow to Swarnamukhi River, which is running towards east of Kuchivada ﬁelds. They further averred that the Executive Engineer, Panchayat Raj, Gudur inspected the place on 21.01.2000 and addressed letter, dated 25.01.2000 to the Superintending Engineer, Nellore, informing that his inspection revealed that there is no necessity to provide C.D. (Cross Drainage) works at ﬁeld channel. They also averred that for the last 40 or 50 years, the drainage water is being discharged into Swarnamukhi River from both sides of the road and that if any culvert is constructed or any pipe is set up under the road, drain water from the south of the road will rush through the culvert or pipe instead of ﬂowing into Swarnamukhi River and damage the crops on the lands situated near the pipe or the culvert. Sri V.Sudhakar Reddy, learned counsel for the petitioner in Writ Petition No.24974 of 2000 made strenuous eﬀorts to convince this Court that if Cross Drainage is not provided to the existing road, the ayacutdars of the lands situated on the southern side of donka as well as the ayacutdars on the northern side would suffer. Sri P.Krishna Reddy, learned counsel for the petitioners in WP.No.26316 of 2000 contended that the brother of the petitioner in WP.No.24974 of 2000 and others ﬁled O.S.No.61 of 2002 in the Court of Junior Civil Judge, Sullurpet for an identical relief and after full-ﬂedged trial, the same was dismissed vide judgment, dated 13.06.2008. He stated that provision of vents to the existing road would result in flooding of lands situated on the northern side of donka. From the respective pleadings of the parties, it is evident that a purely disputed question of fact has been raised in these two writ petitions. While the petitioner in WP.No.24974 of 2000 pleads necessity of provision for vents, the petitioners in WP.No.26316 of 2000 vehemently oppose the provision of such vents. While Sri V.Sudhakar Reddy, learned counsel for the petitioner in WP.No.24974 of 2000 relied upon the report of the Assistant Executive Engineer, the petitioners in WP.No.26316 of 2000 equally relied upon the report of the Executive Engineer, Panchayat Raj Department. These competing claims, I am afraid, cannot be decided by this Court in a writ petition under Article 226 of the Constitution of India. Unless evidence is let in by both the parties and relevant material is placed before the competent Civil Court, it is not possible to decide whether vents should be provided to the existing road or not. Therefore, in my considered view, the appropriate remedy for the parties in both the writ petitions is to approach the competent Civil Court and seek appropriate relief. Though O.S.No.61 of 2002 ﬁled by some of the persons, of whom the brother of the petitioner in W.P.No.24974 of 2000 was a plaintiﬀ, was dismissed, it may not bind the petitioner in WP.No.24974 of 2000 as he is not a party to the said suit. Despite the said judgment, it is open to the petitioner in WP.No.24974 of 2000 to adduce relevant evidence and still convince the Civil Court to take a diﬀerent view from the one taken in O.S.No.61 of 2002. For the above-mentioned reasons, both the writ petitions are dismissed with liberty to the petitioners, as indicated above. C.V.NAGARJUNA REDDY, J 10th SEPTEMBER, 2008. kvni