*THE HON’BLE Ms. JUSTICE G.ROHINI + WRIT PETITION NO: 4311 of 2008 % 03.03.2010 # The Secretary, Gram Panchayat, Korisapadu, Prakasam District. …PETITIONER vs. $ Korisapadu Water Users Association, Rep., by its President Lella Subba Rao, Prakasam District and 5 others. … …RESPONDENTS ! COUNSEL FOR THE PETITIONER: Sri G.Pedda Babu ^ COUNSEL FOR THE RESPONDENTS: Mr. M.Prabhakara Rao, standing counsel for Government Pleader for Panchayat Raj R.1 Government Pleader for Panchayat Raj & Rural Development for Respondents 2,3 and 5. Government Pleader for Irrigation and CAD for R.4 None for R.6 < Gist: > Head Note: ? CITATIONS: THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.4311 of 2008 Dated: 03.03.2010 Between The Secretary, Gram Panchayat, Korisapadu, Prakasam District. … Petitioner And Korisapadu Water Users Association, Rep., by its President Lella Subba Rao, Prakasam District and 5 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.4311 of 2008 O R D E R : The petitioner is the Water Users Association of Korisapadu Village, Prakasam District. The said association formed in the year 2004, has been in control of an irrigation tank situated in Korisapadu village, which is called Big tank or Korisapadu Minor Irrigation tank as well as its ayacut. There were about 2000 babul trees in the said irrigation tank which were planted by the Social Forest Department about 20 years back. The 1st respondent-Korisapadu Gram Panchayat proposed to sell the said babul trees by conducting a public auction on 19.02.2008. As per the auction notice, the highest bidder shall deposit 25% of the bid amount to the Gram Panchayat immediately and the balance shall be deposited within 7 days thereafter and the babul trees with roots shall be removed by him within a month from the date of taking possession. Having come to know about the proposed public auction, the petitioner-association made a representation dated 11.02.2008 to the District Collector as well as the Officials of Panchayat Department and Irrigation Department requesting to stop the auction stating that since the tank vests with the petitioner-association, the Gram Panchayat has no right or authority to conduct the auction. The petitioner’s version was substantiated by the report submitted by the Executive Engineer, Irrigation Division, Ongole wherein it was made clear that the tank in question has been under the control of the Irrigation and CID Department since 1998 with a registered ayacut of 110 acres and the petitioner Water Users Association has been constituted as per the A.P. Farmers Management of Irrigation Systems Act,1997 (for short ‘the Act’) and the same has been functioning since 2004. In spite of the same, the 1st respondent-Gram Panchayat conducted the auction on 19.02.2008 in which the 6th respondent was declared as the highest bidder for Rs.9.67 lakhs. Aggrieved by the same, the present writ petition has been filed seeking a declaration that the action of the 1st respondent-Gram Panchayat in selling the babul trees existing in Korisapadu tank is arbitrary and illegal. It is primarily contended that the petitioner-association alone has power and authority to auction the trees available in the tank in question and utilize the sale proceeds for development of the tank and irrigation system. It is further contended that the Gram Panchayat or Panchayat Raj Department has no such power or authority and therefore, the auction held on 19.02.2008 is liable to be set aside. In the counter affidavit filed on behalf of the 1st respondent, it is stated that the babul trees were planted in the year 1988 by the Forest Department pursuant to the resolution dated 12.10.1988 passed by the Gram Panchayat permitting the Forest Department for plantation, on condition of sharing the income in between the Forest Department and the Gram Panchayat. Accordingly, the Forest Department, at its cost planted babul tress over the tank bed area. As per the agreement dated 01.04.1991 entered into between the Forest Department and the Gram Panchayat, the entire plantation was handed over to the Gram Panchayat for proper care and watch on condition of sharing the income on the trees equally. Accordingly, the trees were safeguarded by the Gram Panchayat by incurring expenditure from the funds of the Gram Panchayat from time to time. The said scheme was evolved from Social Forest Trees Scheme issued by the Government of Andhra Pradesh. Thus, it is contended that the plantation, which was exclusively raised under a special scheme jointly by the Forest Department and the Gram Panchayat over the land which was classified as “Government tank land” cannot be claimed by the petitioner-association and the Gram Panchayat and the Forest Department alone are entitled to receive the income derived from the grown trees. However, the fact that the petitioner-association was formed in the year 2004 and the tank was taken over by the Irrigation Department has not been disputed. I have heard the learned counsel for both the parties. The material on record shows that the babul trees in question are not naturally grown trees over the tank bed area. Admittedly, they were raised by the Forest Department and the Gram Panchayat jointly at their own cost. It is also not in dispute that the plantation was made by the Forest Department in the year 1988 under a Social Forestry Programme under which the Forest Department was entitled to raise social forest in the Government lands. Thereafter, the plantation was taken over by the Gram Panchayat in the year 1991 for maintenance and proper care. Long thereafter, the petitioner-association was formed in the year 2004 and the tank was taken over by the Irrigation Department. It is also relevant to notice that the public auction, as proposed was conducted on 19.02.2009 in which the 6th respondent, who offered Rs.9,67,000/- was declared as the successful bidder. The 6th respondent has also deposited 1/4th of the bid amount as per the terms of the auction notice. The said auction took place as per the procedure prescribed in G.O.Ms.No.9 dated 13.01.1992 and the agreement between the Gram Panchayat and the Forest Department. It is also relevant to note that Section 47 of the Act makes it clear that nothing contained in the said Act shall affect the rights of the properties vested in Gram Panchayat under any law for the time being in force. In the present case, by virtue of the agreement entered by the Gram Panchayat with the Forest Department under the Social Forest Tree Scheme, the Gram Panchayat acquired certain rights. Though the irrigation tank vests with the petitioner association, by virtue of Section 47 the Gram Panchayat cannot be deprived of its rights in respect of the trees on the tank beds. In view of the peculiar facts and circumstances of the case, the babul trees in question cannot be treated as the assets attached to the Irrigation system and consequently, the income derived from the said trees does not comprise the funds of the petitioner-association under Section 22(iv) of the Act. In W.P.No.20746 of 2006, relied upon by the learned counsel for the petitioner, this Court was dealing with a case relating to the income derived out of the usufructs of the coconut trees situated on the canal and channel bunds. The said trees were admittedly raised by the land owners adjacent to their lands from the canal and channel bunds in PWD land i.e. Irrigation Department. Though the Gram Panchayat was conducting auction and was deriving income out of the said coconut trees prior to enforcement of the Act, after the formation of the Water Users Association, the said coconut trees came into possession of the Water Users Association. As per Rule 5 (vii) of A.P. Farmers Organization Rules, 1997, the farmers organization alone has right to utilize the canal bunds as long as such use was not obstructive or destructive to hydraulic structures by planting timber, fuel or fruit trees for augmenting the income of farmers organization. In the light of the facts and circumstances of the said case, this Court held that the rights in respect of the coconut trees were not at all vested with the Gram Panchayat and the Water Users Association alone was entitled to derive the income from the coconut trees. However, as noticed above, the facts in the instant case are entirely different and the babul trees in question were not at all vested with the Water Users Association. Hence, the order in W.P.No.20746 of 2006 is clearly distinguishable on facts and has no application. In the light of the aforesaid admitted facts, I am unable to hold that the petitioner-association, which was formed in the year 2004 under the provisions of the Act, cannot claim rights over the trees that were planted by the Social Forest Department and were grown up by the Gram Panchayat at its own cost. The contention of the petitioner- association that since the tank vests with the Irrigation Department as per Section 22(iv) of the Act, the funds of the petitioner-association shall comprise of income over all th e properties and the assets attached to the Irrigation system and its bunds including grass, trees and etc., cannot be accepted so far as the babul trees in question are concerned since they are not naturally grown trees. Having regard to the admitted fact that they were planted by the Forest Department and were grown and maintained by the Gram Panchayat in terms of a statutory scheme, the rights acquired by Gram Panchayat, under the terms of the agreement entered with the Forest Department are saved by Section 47 of the Act. Hence, the petitioner’s claim to receive the sale proceeds of the said trees is untenable and therefore, the Mandamus as prayed for cannot be granted. Accordingly, the Writ Petition, which is devoid of any merit, is hereby dismissed. No costs. ______________ G. ROHINI, J. Date: 03.03.2010 Note: L.R. copy to be marked. KLP