THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.14118 of 2003 Order: Petitioners, eight in number, claim to be owners of small extents of lands in Survey Nos.563, 564, 565, 589/A, 595/A, 595/C, 596, 599/A, 599/B and 599/C, 600/A, 600/B and 601 situated at Mallannakunta Village. They also allege that they dug bore well and cultivating the land. It is their case that the original pattadars constructed a small tank near Mallannakunta, which suffered a breach about 25 years ago. Therefore, the pattadars sold the lands to the predecessors of the petitioners, who developed the land. The cause of action for filing the writ petition is that at the instance of some of the farmers of the village, the third respondent addressed a letter bearing No.B/330/03, dated 10.6.2003 for filling up the breach of Mallannakunta tank. Aggrieved by the same, the petitioners filed the instant writ petition. This Court while ordering notice before admission on 15.7.2003, directed status-quo. Respondents 6 to 10 were impleded subsequently and they moved an application to vacate the orders of status-quo. This court passed orders on 30.1.2004 vacating the interim order dated 15.7.2003 and observed. The members of the Water Users’ Association of Mallampally Village got themselves impleaded as respondents 6 to 10. According to them, the tank in question was the source of irrigation for the lands in Mallampally village and the concerned authorities have taken steps to fill the breach. It is stated that the tank is recorded as the source of irrigation in the concerned records. The question as to whether the lands held by the petitioners are patta lands or shikam lands needs to be considered at the hearing of the writ petition. The petitioners do not dispute that there existed a tank and the same is sought to be restored. The Supreme Court and this Court have been issuing directions from time to time to ensure that all the sources of irrigation and water bodies are restored, wherever they were rendered dysfunctional. This Court is not inclined to prevent the respondents from restoring the tank. Hence, the order of status- quo granted by this Court on 15.7.2003 in W.P. No.14118 of 2003 is vacated. It is, however, made clear that the work so undertaken shall be subject to the outcome of the writ petition. The question whether the land in Survey Nos. 563, 564 etc., of Mallannakunta Village is a water resource, i.e., a tank, and if it is a tank, whether it is a public tank or private tank are questions of fact. The petitioners categorically admit in their affidavit accompanying the writ petition that originally the land was a tank and when it breached 25 years ago, the land was sold and it is an agricultural land. The petitioners assert that it is a private tank. If that be so, the question of title would arise, which cannot be decided in the proceedings under Article 226 of the Constitution of India see State of Rajasthan v. Bhawani Singh[1] and Mohan pandey v. Usha Rani Rajagaria[2]. The petitioners’ remedy is to approach the Civil Court and seek a declaration. The writ petition is mis-conceived. In the result, giving liberty to the petitioners to agitate the matter before a Civil Court, the writ petition is dismissed. It is made clear that as and when a suit is filed, subject to the law of Limitation, the Civil Court shall decide the matter without being influenced by any of the observations made hereinabove. There shall be no order as to costs. ____________ (V.V.S. RAO,J) 19th November, 2010 pnb [1]AIR 1992 SC 1018 [2] AIR 1993 SC 1225