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2003 DIGILAW 124 (AP)

Kantala Srinivas Reddy v. State Of A. P.

2003-01-23

B.SUDERSHAN REDDY, C.V.RAMULU

body2003
B. SUDERSHAN REDDY, J. ( 1 ) THE petitioners are all agriculturists and the residents of Kondapaikala village, manakondur revenue mandal, Karimnagar district. They are the owners of different extents of lands located in different survey numbers situated in the said village. It is not necessary to notice the details of the lands held by each of the petitioners. However, it is their case that the said lands are being irrigated with well water. It is claimed that they have not utilized any water whatsoever from the lower Maneru dam. ( 2 ) THE petitioners are aggrieved by the action of the respondents in proposing to realize water tax from the petitioners on the ground that the lands held by them are localized under Sriram Sagar project and being irrigated with project water. It is unnecessary to go into the controversy as to whether the petitioners in reality have utilized water from Sriram Sagar project at all. ( 3 ) SHORN of all the details the petitioners are aggrieved by the action of the respondents in proposing to recover water tax for the years 1987-88,1988-89 and 1989- 90 under the provisions of the A. P. Revenue recovery Act, 1864. ( 4 ) IT is the case of the petitioners that the 3rd respondent did not prepare a list as is required in law and did not publish the names of the owners of the lands and the extents of the lands held by each of the owners under the commandable ayacut of the Government source of irrigation and the water tax payable thereon as is required under Section 5 (2) of the A. P. Water Tax Act, 1988 (for short Water Tax Act ). It is contended that no such list has been prepared nor the same has been published in accordance with law. ( 5 ) THE Water Tax Act has come into force in the State of Andhra Pradesh with effect from 20-4-1988. Section 3 of the Water Tax act empowers the Government to levy and collect, in respect of every land receiving water for irrigation purposes from any government source of irrigation, notified under Section 4, for each fasli year, at rates specified in the schedule. Section 3 of the Water Tax act empowers the Government to levy and collect, in respect of every land receiving water for irrigation purposes from any government source of irrigation, notified under Section 4, for each fasli year, at rates specified in the schedule. Section 4 in its turn mandates that the District Collector shall specify from time to time, by notification, for the purposes of this Act, the Government source of irrigation and the lands under the commandable ayacut therein lying within his jurisdiction, and where any of the said government sources of irrigation and the lands under the commandable ayacut therein lie in more than one district such notification shall be issued by the commissioner of Land Revenue. ( 6 ) A bare reading of Sections 3 and 4 of the Water Tax Act would make it clear that the Government is entitled to levy and collect, in respect of every land receiving water for irrigation purposes from any government source of irrigation i. e. , the supply of water and utilization thereof must be from Government source of irrigation and that Government source of irrigation is required to be notified in accordance with the procedure prescribed under Section 4 of the Water Tax Act. ( 7 ) SECTION 5 of the Water Tax Act in its turn provides the procedure for determination of the water tax leviable and assessed by the Mandal Revenue Officer. As per Section 5 the water tax payable under the Water Tax Act by each owner in respect of the land under the commandable ayacut government source of irrigation shall ordinarily be determined for the fasli year for which the water tax shall be levied. The mandal Revenue Officer, soon after the publication of the notification under Sec. 4 by the District Collector or the commissioner of Land Revenue, as the case may be, is required to cause a list to the prepared and published in such manner as may be prescribed. The said list shall contain the names of owners in every village within his jurisdiction and the extents of the lands held by each one of them under the commandable ayacut of the Government source of irrigation. The list shall also contain the details of water tax payable thereon by each one of them. The said list shall contain the names of owners in every village within his jurisdiction and the extents of the lands held by each one of them under the commandable ayacut of the Government source of irrigation. The list shall also contain the details of water tax payable thereon by each one of them. The list so prepared under sub-section (2) of Section 5 is required to be published at such place and in such manner as may be prescribed. It is only thereafter, that is to say, after such publication every owner who is liable to pay the water tax under the Water Tax Act shall be deemed to have had notice of such tax. Sub-section (4) of Section 5 provides for lodging of objections objecting to the water tax specified in the list prepared under subsection (3 ). The Mandal Revenue Officer is required to consider the objections, if any, from any person with respect to the list on or before the periods specified therein and pass such other order thereon as he thinks fit and serve the said order on the person concerned. Section 6 of the Water Tax Act provides for an appeal against such a decision of the Mandal Revenue Officer and a further revision is provided under Sec. 9 to the District Collector. Such is the comprehensive procedure prescribed under the Act for the levy and collection of water tax under the provisions of the Water Tax act. ( 8 ) A cumulative reading of the provisions referred to hereinabove would make it clear that water tax is liable to be paid under the water Tax Act by each owner in respect of the lands held by them under the commandable ayacut of the Government source of irrigation. The lands must be situated in the commandable area and the source of irrigation must be a Government source of irrigation. The Mandal Revenue officer is required to prepare a list containing all the details including the names of owners and the extents of land held by each one of them under the commandable ayacut of the Government source of irrigation and the said list should further reveal the amount of water tax payable thereon by each owner of the land under the commandable ayacut of government source of irrigation. ( 9 ) NO water tax is liable to be levied and collected without determination of water tax payable in accordance with Section 5 of the water Tax Act. ( 10 ) IN the counter-affidavit filed by the respondents it is not stated that the District collector had issued any notification as such under Section 4 specifying the Government source of irrigation and the details of the lands under the commandable ayacut within his jurisdiction. There is nothing on record to suggest that such a notification has been issued specifying the details of the lands belonging to the petitioners and about their location in the commandable area of government source of irrigation. The counter-affidavit filed by the respondents is also silent about the determination of water tax in accordance with Section 5 of the Act. ( 11 ) IN the absence of such notification as is required to be published under Section 4 of the Water Tax Act and in the absence of determination of water tax payable by each of the petitioners herein under Section 5, no water tax can be collected from the petitioners. ( 12 ) IN the counter-affidavit, no doubt, it is asserted that the lands held by the petitioners are localized under Sriram Sagar project being irrigated with the project water as could be seen from the joint azmoish i. e. , field inspection conducted by the team of officials containing Revenue, Irrigation and agriculture departments. The inspection is said to have been taken in the presence of village elders and ryots on the dates notified in the village. May be the respondents are referring to the fact situation. We are not inclined to record any finding as to whether the petitioners are utilizing the water from government source of irrigation in the commandable ayacut. It is for the respondents to decide the same in accordance with the provisions of the Water tax Act. ( 13 ) IN the circumstances, we hold that in the absence of notification issued under section 4 by the District Collector and in the absence of determination of water tax in accordance with Section 5 of the Water Tax act the respondents are not entitled to proceed against the petitioners or any one of them for realization of the water tax under the provisions of the Water Tax Act. Consequently the demand notices issued under the provisions of the A. P. Revenue recovery Act for realization of the dues of water tax are set aside. It shall always be open to the respondents to issue the notification under Section 4 of the Water Tax act and determine the tax payable by each owner of the land in accordance with section 5 of the Water Tax Act and it is only thereafter the respondents shall be entitled to levy and collect water tax. ( 14 ) NO relief could be granted to the petitioners to declare the provisions of section 5 of the Water Tax Act as void and unconstitutional since the said provisions of the Water Tax Act have already been upheld by this Court in T. Shankaraiah and others v. Government of A. P. and others. The writ petition is partly allowed. The impugned demand notices are accordingly set aside. No order as to costs.