HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.12061 of 2010 Dated: 21-07-2010 Between: Khambam Krishna Reddy. … Petitioner And The State of Andhra Pradesh, rep. by the District Collector, Chittoor District & another. … Respondents HON’BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.12061 of 2010 ORDER: In this writ petition, the petitioner has questioned the notice, dated 24.05.2010, issued in Roc.A/ /2010. By the aforesaid notice, referring to the report of Mandal Surveyor, respondents have seized the borewell dug by the petitioner and taken into custody of the Government. It is the case of the petitioner that he is the owner and possessor of the land admeasuring Ac.3.50 cents, covered by Survey Nos.202/1, 203 and 204, situated at Diguvakhambamvaripalle of Guttapalyam village of Kalikiri Mandal in Chittoor District. It is the case of the petitioner that he has dug the borewell in his patta land and is using the water for agricultural purpose. However, the impugned notice is issued referring to the report of the Mandal Surveyor, dated 24.05.2010, seizing the borewell of the petitioner and the same is taken into custody of the Government, without conducting any inquiry and contrary to the provisions under Sections 15(1) and 15(2) of the A.P. Water, Land and Trees Act, 2002. Counter affidavit is filed by the 2nd respondent-Tahsildar, Kalikiri Mandal. In the counter affidavit, it is stated that there is a borewell, which is being used for public drinking water, in Sy.No.212, which is classified as ‘Vanka Poramboke’ and the villagers of Guttapalem village are drawing water from the said borewell for drinking purpose. It is stated that the petitioner, without obtaining prior permission from the concerned authorities, has dug the borewell at a distance of 65 metres from the public borewell. It is stated that the Mandal Surveyor also surveyed the land and reported that the borewell dug by the petitioner is existing in Sy.No.199, which is also called as ‘Vanka Poramboke’ land and the same is located at a distance of 65 metres from the Government borewell. It is stated that a notice was issued to the petitioner on 14.05.2010, but he refused to take the said notice, therefore, the impugned notice, dated 25.04.2010, is issued to him. As there was no response from him, and further, as much as the borewell dug by the petitioner is in Sy.No.199, which is classified as ‘Vanka Poramboke’, respondents have seized the borewell under the cover of panchanama and handed over to the Assistant Engineer, Kaligiri, on 25.05.2010. It is stated that as per the provisions contained under Section 10 of the A.P. Water, Land and Trees Act, 2002, no person shall sink any well within the vicinity of public drinking water source i.e. within a distance of 250 metres. It is further stated that the petitioner has dug the borewell at a distance of 65 metres from the public borewell, which is contrary to the aforesaid provision, as such, the respondents have seized the same. Heard learned counsel for petitioner and also the learned Government Pleader appearing for the respondents and perused the impugned notice. Earlier to 2002, ground water regulation was not covered by any legislation. To promote water conservation and tree cover and to regulate the exploitation and use of ground and surface water, the State of Andhra Pradesh has enacted Act No.10 of 2002 i.e. the Andhra Pradesh Water, Land and Trees Act, 2002. Under Section 15 of the said Act, powers are conferred on the competent Authority to enter upon the land, remove obstructions and order to close the pumping of water, etc., in case, when the well/borewell is dug contrary to the provisions of the Act. It is appropriate to refer to the provisions of Clause 15(1) and (2) of the Act, which read as under: “Sec. 15 : Closure of Wells. 15 (1) : Whereever it appears to the Authority that any well has been sunk or is being sunk or water has been extracted or is being extracted in contravention of any of the provisions of this Act, the Authority or any officer duly authorized by it in this behalf, may enter upon that land, remove obstructions, if any, close the pumping of the water, disconnect the power supply, seize any material or equipment used in connection with such extraction of water and take any such action, as may be required to stop such extraction and may by order require the owner or the person in possession of the well to close or seal-off the well at his expense and in such manner as the Authority may specify in such order and such owner or person shall comply with such order. 15 (2) : Where such owner or person fails to comply with any order made under sub-section (1), the Authority may after giving such owner or person due notice in that behalf enter upon the land and close or seal off the well and the cost incurred thereof shall be recoverable from such owner or person as arrears of land revenue.” From a reading of the above said provisions, it is clear that if any borewell is dug contrary to the provisions of the Act, the authority is empowered to order for closure of pumping of water from such borewell and to stop extraction of water from such borewell, at first instance, by issuing an order/notice under Section 15(1) of the Act. Under Section 15(2) of the Act, the authorities are empowered to issue further orders, when the owner of a borewell fail to comply with the instructions issued under Section 15(1) of the Act. The authority is also empowered to exercise the power under Section 15(2) of the Act after giving notice and opportunity to the person affected by the order. A perusal of the notice, dated 24.05.2010, shows that there is no indication of giving any opportunity nor any prior notice and instructions issued under Section 15(1) of the Act. There is also no reference to any of the show cause notice, in the impugned notice. It is clear from the impugned notice that the borewell is seized and the same is taken into Government custody, merely basing on the report of the Mandal Surveyor, wherein, it is stated that the borewell is dug in Sy.No.199, which is a poramboke land. Although it is stated in the counter filed on behalf of respondents that notices were issued to the petitioner before passing the impugned order, but there is no reference to any of the notices in the impugned notice. Further, there is no opportunity to the petitioner before recording a finding that the borewell in question is in Sy.No.199, which belongs to the Government, but not on the private land belonging to the petitioner. In that view of the matter, the impugned notice is issued without recording any valid reasons not only in gross violation of principles of natural justice, but contrary to the provisions under Section 15(1) and (2) of the Act. Although it is stated in the counter that the land in Sy.No.199 is poramboke land, but unless the petitioner is given an opportunity by furnishing a copy of the Surveyor report, it is not permissible for the respondents to record findings straightaway, without putting the petitioner on notice about the allegation that the borewell dug by the petitioner is not in his patta land, but it is in the Government land covered by Sy.No.199. The reasons for seizure of borewell, which are stated in the counter affidavit are not reflected in the order itself. In the absence of recording any reasons and also referring to any of the earlier orders issued under Section 15(1) of the Act, the impugned notice is liable to be set aside. For the aforesaid reasons, the impugned notice, dated 24.05.2010, issued in A/ /2010, is quashed. Petitioner shall be permitted to operate the borewell dug by him. It is made clear that if the borewell dug by the petitioner is in contravention to the provisions of the Act, this order will not preclude the respondents from taking steps in accordance with the provisions of the Act. The writ petition is allowed subject to the observations referred above. No order as to costs. ______________________ R. SUBHASH REDDY, J 21st July 2010 ajr