THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.4506 of 2010 Date: 11.10.2011 Between: Pericharla Lakshmi Jyostna ..... Petitioner AND The State of A.P., Reptd., by its Secretary, Irrigation Department, Hyderabad and seven others. .....Respondents Counsel for the Petitioner: Sri S.Subba Reddy Counsel for Respondent Nos.1, 3 & 4: AGP for Irrigation and CAD Counsel for Respondent Nos.2 & 5: AGP for Revenue Counsel for Respondent Nos.6, 7 & 8: Sri R.Raghunandan The Court made the following: ORDER: This Writ Petition is filed for a Mandamus to declare the action of respondent Nos.3, 4 and 6 in seeking to dig a branch canal through the petitioner’s lands in Sy.No.82(82/1A) of Narasimhapuram Village, Nidamarru Mandal, West Godavari District, as illegal, arbitrary and violative of Article 300-A of the Constitution of India. The petitioner sought for a consequential direction to respondent No.5 to conduct survey of the land in the above-mentioned survey number after putting him on notice. The petitioner pleaded that she is the owner of the lands admeasuring Ac.4.03 cents in Sy.No.79/3, and Ac.1.87 cents and Ac.1.65 cents in Sy.No.82/1A of Narasimhapuram Village, Nidamarru Mandal, West Godavari District. It is the petitioner’s further case that the land in Sy.No.78 abutting hers is classified as ‘Murugu kodu’ and the lands in Sy.Nos.83/1 and 83/2 are classified as ‘Government Poramboke’, while lands in Sy.No.83/3 belongs to private individuals; that recently, respondent No.5, without issuing notice either to the petitioner or to her grandfather, conducted survey of her lands; that her grandfather came to know that on the basis of such survey, survey stones are being planted with a view to dig a branch canal; that on the objections raised by her grandfather before respondent No.5, he, in turn, instructed respondent Nos.3, 4 and 6 to stop digging the branch canal in her lands; and that, when respondent No.5 again started the process of digging the branch canal through her land, her grandfather immediately raised objection. The petitioner got a legal notice issued to respondent Nos.2 to 6 on 19.02.2010. She, therefore, sought for a Mandamus to declare the action of respondent Nos.3, 4 and 6 in seeking to dig the branch canal through her land in Sy.No.82 (82/1A). The two persons who are having lands in the vicinity have come on record as respondent Nos.7 and 8. Separate counter-affidavits have been filed by respondent Nos.2 and 5, respondent No.6 and on behalf of respondent Nos.7 and 8. In his counter-affidavit, respondent No.5-Tahsildar, Nidamarru Mandal, inter alia, denied that a new branch canal is being dug through the petitioner’s lands. He has averred that the lands claimed by the petitioner are situated in Sy.No.82; that Sy.No.83, which is classified as ‘Government Poramboke’, is sub-divided into Sy.Nos.83/1 and 83/2; that when the repair works to the drain which is passing through the Government Poramboke land in Sy.No.83 were undertaken by the irrigation department, the grandfather of the petitioner objected to the same and that therefore, a public notice was issued to the President of the Water Users Association, Pedanindrakolanu, West Godavari District, for conducting survey of the area through which kodu (drain) is passing and that, accordingly, the public was informed that survey will be conducted from 02.02.2010 to 19.02.2010. It is further averred that the survey was accordingly commenced and held till 17.02.2010 along the land through which the canal is passing with reference to the Field Measurement Book, according to which, the canal is passing through R.S.Nos.14, 15, 32, 33, 39, 52, 54, 55, 67, 78, 121 and 122 of Narasimhapuram Village; that after completion of the survey, the Mandal Deputy Surveyor has submitted a report to respondent No.5 along with the sketch of the area surveyed and according to the said report, Naidu kodu (drain canal) is not passing through the petitioner’s land situated in Sy.No.82 and that the said canal is passing through the adjacent land in Sy.No.83, which is Government Poramboke. Respondent No.5 further stated that in view of the objection raised by the petitioner’s grandfather on 10.02.2010, he has issued instructions to stop removal of silt from the canal till completion of survey and that, after conducting survey in the presence of the petitioner’s grandfather, and on ascertaining that the drain canal is not passing through the petitioner’s land, peg-marking was given. Similar stand is taken in the counter-affidavit filed by the impleaded respondent Nos.7 and 8. Sri S.Subba Reddy, learned counsel for the petitioner, stated that the sketch filed by respondent No.5 along with the counter-affidavit does not reflect the true position on ground and that, a part of the drain is sought to be dug on the petitioner’s land. In my considered opinion, this case raises a seriously disputed questions of fact. While it is the case of the petitioner that a new drain is proposed to be dug in her land, the respondents have denied the said claim and have maintained that there is already an existing drain which is called Naidu kodu and that, only de-silting operations are taken up in the existing drain. The further claim of the petitioner that the drain is being dug through her lands in Sy.No.82 is also seriously disputed. The fact that a survey was conducted on the objection raised by the petitioner’s grandfather is not in dispute. According to the survey report, no part of Naidu kodu (Drain canal) is passing through the petitioner’s lands in Sy.No.82. If the petitioner disputes this survey report, the only course available to her in law is to file a civil suit before the competent Court and establish her plea that the drain is passing through her lands in Sy.No.82 as while exercising jurisdiction of this Court under Article 226 of the Constituting of India, it is not possible for this Court to decide this disputed question of fact. In this view of the matter, I do not find any reason to adjudicate the dispute raised by the petitioner in this Writ Petition on merits. Learned counsel for the petitioner submitted that on the further request made by the petitioner, the District Surveyor has agreed to undertake a fresh survey. It is made clear that the observations made in this order will not come in the way of the District Surveyor to conduct a fresh survey. If the petitioner feels aggrieved by the result of the survey, she can approach the competent civil Court for rederessal of her grievance. Subject to the above observations, the Writ Petition is dismissed. As a sequel to dismissal of the Writ Petition, W.P.M.P.No.5817 of 2011 filed by the petitioner for interim relief and W.V.M.P.Nos.2051 and 2878 of 2010 filed by the respondents are dismissed as infructuous. __________________________ C.V.NAGARJUNA REDDY, J 11th October 2011 DR