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2012 DIGILAW 335 (AP)

Chiduruppa Hanumantha Reddy v. Tahsildar, Bommala Ramaram Mandal, Bommala Ramaram, Nalgonda District.

2012-03-26

G.ROHINI

body2012
Judgment : The petitioner claims title and possession in respect of Ac.1-31 cents of land situated in Sy.Nos.92, 94 & 95 of Medipally Village, Bommal Ramaram Mandal, Nalgonda District, having purchased the same under a registered sale deed, dated 3.1.2012. It is claimed that a bore well is existing in the said land which was dug by his vendor in the year 1993 and electricity service connection was also obtained to the said well by his vendor long back. While so, by order dated 23.1.2012 the 1st respondent – Tahsildar, ordered seizure of the said bore well on the ground that the petitioner had dug the bore well without prior permission as required under the provisions of A.P. Water, Land and Trees Act, 2002 (for short, ‘the Act’). Aggrieved by the said order, dated 23.11.2012, the present writ petition is filed contending inter alia that the allegation that the petitioner had dug the bore well in question without prior permission is absolutely false and baseless since the well has been in existence even by the date of the commencement of the Act. It is also contended that the impugned order is arbitrary, illegal and without jurisdiction since no permission is required under the A.P. Water, Land and Trees Act, 2002 with regard to sinking a well for irrigation purpose. In the counter-affidavit filed on behalf of the respondents 1 to 3, it is stated that on a complaint received from the respondent No.4, the Village Revenue Officer, Medipally after making the necessary enquiry submitted a report, dated 11.1.2012 stating that the petitioner had dug a bore well six days ago without any prior permission within 23 yards from the bore well of the respondent No.4 due to which the well of the 4th respondent was dried up. It is also stated that though a notice was issued to the petitioner calling upon to explain the said allegations, the petitioner failed to submit his reply. Thereupon the 1st respondent – Tahsildar summoned both the petitioner and the 4th respondent and attempted to settle the issue amicably. Since both the parties were indifferent, in order to maintain peace and tranquility the 1st respondent directed seizure of the bore well of the petitioner. Pursuant thereto, the Mandal Revenue Inspector along with Village Revenue Officer, Medipally has seized the bore well under a panchanama. Since both the parties were indifferent, in order to maintain peace and tranquility the 1st respondent directed seizure of the bore well of the petitioner. Pursuant thereto, the Mandal Revenue Inspector along with Village Revenue Officer, Medipally has seized the bore well under a panchanama. It is also contended that as per Section 10 (2) of the Act read with Rule 12 (1) of the Rules made thereunder it is necessary to obtain prior permission to dig a new bore well and that the petitioner had failed to comply with the same. Therefore, the impugned order was rightly passed after affording an opportunity of hearing to the petitioner. The respondent No.4 also filed a counter-affidavit on the same lines reiterating the allegation that the petitioner had dug the bore well without obtaining permission from the concerned authorities 15 days prior to the impugned proceedings dated 23.01.2012. I have heard the learned counsel for both the parties and perused the material available on record. On a combined reading of Section 8 of the Act and Rules 12 to 14 of the Rules made thereunder, it is clear that so far as the wells existing by the date of the commencement of the Act the owner of the well shall give an application giving details as in Form-I appended to the Rules. Rule 12 provides that the Town Planning Department of the Municipal Corporation, Municipalities, Hyderabad Water Supply and Sewerage Board, Village Secretaries of the Gram Panchayat shall facilitate registration of all existing wells in their jurisdiction and the details should be entered in a register as prescribed in Form-I. So far as new wells are concerned, Rule 13 of the A.P. Water, Land and Trees Rules, 2004 provides that any person desiring to dig a new well of any kind in their premises should obtain permission by submitting to the Authority constituted under the Act having jurisdiction over the area an application in Forms 2 & 5 as the case may be appended to the Rules together with a fee as fixed by the Authority from time to time. Thereupon the Authority shall process the application with the help of the designated officer. Thereupon the Authority shall process the application with the help of the designated officer. The designated officer has to give his recommendation to the authority on being satisfied about the compliance of the various provisions of the Act and then the Authority shall dispose of the application within 15 days of receipt of the application. The permission of the Authority shall be in Forms 3 & 6 as the case may be appended to the Rules. Rule 14 further provides that the permission for grant of sinking of well shall be subject to the conditions specified therein. No doubt, the prohibition under Section 10 of the Act is only with regard to sinking of wells in the vicinity of public drinking water source within a distance of 250 mts. Similarly the prohibition under Section 11 of the Act is with regard to ground water basins which are declared as overexploited areas. Even with regard to areas other than overexploited areas, the Authority constituted under the Act is empowered under Section 13 to issue directions specifying the distance for sinking of wells from the existing well and depth for such sinking and such other conditions in order to curb unhealthy competition to tap water from deeper layers of ground water. In the case on hand, the 4th respondent’s well is being used for irrigation purpose and admittedly no drinking water source is involved. It is also true that the area in question is not declared as overexploited area and it is not the case of the respondents that any directions are issued by the Authority under Section 13 of the Act specifying the distance for sinking of wells from the existing well in order to curb unhealthy competition. Nevertheless it is necessary for any person to dig a new well of any kind in their premises to obtain the permission as provided under Rule 13 of the Rules. As noticed above, an application shall be made in Forms 2 & 5 seeking permission for digging a new well and on being satisfied about the compliance of the various provisions of the Act, the permission will be granted in Forms 3 & 6 as the case may be. Thus it is clear that the prior permission of the Authority for sinking a new well is mandatory under the Act. Thus it is clear that the prior permission of the Authority for sinking a new well is mandatory under the Act. The specific case of the respondents is that the petitioner in the instant case has not obtained such permission. The petitioner has denied the very allegation that the well in question is dug recently and pleaded that the said well has been in existence even by the date of the commencement of the Act. However, in spite of the fact that the petitioner was given an opportunity of being heard before passing the impugned order, he could not establish that the well had been in existence even by the date of the commencement of Act. Therefore, the impugned order came to be passed by the 1st respondent. Since the said order cannot be held to be without jurisdiction or in violation of the principles of natural justice, the interference by this Court is not warranted. However, as against the impugned order, an alternative remedy of appeal is available under Section 33 of the Act. The issue whether the well in question is an existing well or it is dug recently being a pure question of fact which can be decided only on appreciation of evidence, the petitioner ought to have availed the statutory remedy of appeal. Accordingly, without expressing any opinion as to the rival claims made by the petitioner and the 4th respondent, the Writ Petition is disposed of granting leave and liberty to the petitioner to invoke the statutory remedy of appeal. Having regard to the facts and circumstances of the case, status quo obtaining as on today shall be maintained for a period of ten (10) days from today. Writ Petition is accordingly disposed of.No costs.