The State Of A.P Rep... v. Devarapalli Subba Rao .

1. The question which is of some general importance that arises for consideration in this civil revision petition is whether the lands which are registered as dry lands in the revenue records are to be treated as “double crop wet lands” on the ground that they are included in the B-Schedule.

2. In this revision filed by the State of Andhra Pradesh Sri. I. Balaiah. The learned Government Pleader, contends that as per the definition of “double crop wet land” any land, whether wet or dry, when included in the B-Schedule should be treated as double crop wet land, if cultivation test is satisfied. The respondent-declarant filed his declaration and the Land Reforms Tribunal, Rajahmundry, determined the excess. He preferred an appeal and the Land Reforms Appellate Tribunal, Rajahmundry, accepted some of the contentions put forward by the declarant-appellant and gave further relief. One of the points raised was that the land in lppanapadu village in Survey No. 102 is dry land but wet on ground and it should be treated only as single crop wet land and not as double crop wet land though it is included in the B Schedule. The Appellate Tribunal, relying on a decision of this Court in A.P Muttaiah v. State of A.P (1) 1978 (2) A.P.L.J 235 held that though the lands are included in the B-Schedule they can be treated only as single crop wet lands in as much as the particulars noted in statement No. 9 of the verification report shows that second crops were irrigated with the water from a bore well which is a private source. The Appellate Tribunal treated that particular land as single crop wet lard also on the ground that the definition of “Wet land under section 3(v) of the Andhra Pradesh Land Reforms Ceiling on Agricultural Holdings) Act, 1973 is attracted. The Government has filed this revision questioning the said finding.

3. The learned Government Pleader contends that the decision in A.P Muttaiah v. State of A.P (1) Supra cannot be applied to lands which are included in the B-Schedule and that as per the definition of “double crop wet land” any land included in the B Schedule should necessarily be treated as double crop wet land and that as per the proviso to section 3(d) it is for the declarant to show that he could not raise two irrigated crops in four out of six Faslis for want of water from a Government source. In A.P Muttaiah's case (1) 1978 (2) A.P.L.J 235 Ramachandra Raju J. held that to attract the definition of double crop wet land, the lands must be registered as wet in the first instance and when the lands are not registered as wet the definition of double crop wet land has no application at all. The learned judge was considering a case where the lands registered as dry were localised for the irrigation under the Ayacut’ of Nagarjuna Sagar Project and accepted the contention of the declarant that they should be treated only as single crop wet lands. Sri I. Balaiah, the learned Government Pleader, contends that this decision is not applicable to the lands which are included in the B-Schedule.

4. Sri. M. Jagahnadha Rao the learned counsel for the respondents, on the other hand contends that a careful scrutiny of the definition of “double crop wet land” would amply show that only the lands registered as “wet” and included in the B-Schedule can be treated as double crop wet lands and not the dry lands, as the landholders cannot claim the supply of water as a matter of right though they are included in the B-Schedule. In this regard, the learned counsel relies on the draft rules for the irrigation of lands in the Godavari Western, Eastern and Central deltas published in the Rules Supplement to Part-II Extraordinary of the Andhra Pradesh Gazette, Dt. 16th July, 1962, to which there is a reference in section 3(d) of the A.P Land Reforms Ceiling on Agricultural Holdings) Act, 1973, To appreciate these rival contentions, it becomes necessary to refer to the relevant definitions and other provisions of law in the A.P Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, hereinafter referred to as “the Act”.

“Double crop was land” is defined under section 3(d) of the Act, which reads as follows:—

3(d): “double crop wet land” means any wet land registered as double crop or compounded double crop wet land in the land revenue accounts of the Government and includes any wet land not so registered,—

(i) for which in accordance with any scheme of localisation being adopted under any Government source or irrigation, water is available in both the first and second crop seasons during a fasli year including the lands covered by Schedule B and Part-II of Schedule C appended to the draft rules for the irrigation of lands in the Godavari Western, Eastern and Central deltas published in the Rules supplement to Part-II Extraordinary of the Andhra Pradesh Gazette, dated the 16th July, 1962.

(ii) on which two crops per fasli year have or a dufassal crop has been raised with the use of water from a Government source of irrigation in any four fasti years within a continuous period of six fasli years immediately before the specified date;

(iii) which is capable of raising-two crops per fasli year with the use of water from a tube well constructed by the Government or any person:

Provided that—

(a) any land entitled to the supply of water from a Government source of irrigation and on which two irrigated crops per fasli year have or a dufassal crop has, not been raised with the use of water from such source, in any four fasli years within a continuous period of six fasli years immediately before the specified date, for want of supply of water from such source;

(b) any land for which in accordance with any scheme of localisation being adopted under any Government source of irrigation, water is made available during the second crop season solely in consideration of the likelihood of the loss of the first crop on account of submersion, salinity, tidal action or the like—

(c) any land to which water has been specifically supplied on a temporary basis for raising a second crop by diversion of water intended for eventual utilisation elsewhere;

(d) any land irrigated by a Government source of irrigation covered by proviso (iii) to sub-section (1) of section 5; shall not be deemed to be double crop wet land;

(the underscoring is mine).

It is also relevant to extract the definition of wet land under Section 3(v).

“3.(v) “Wet land” means land registered as wet, single crop wet, double crop wet, compounded double crop wet or special rate wet land, in the land revenue accounts of the Government or assessed as such; and includes any land not registered as wet which has been —

(i) included in the ayacut of any Government source of irrigation;

(ii) irrigated by water from any Government source of irrigation in any four fasli years within a continuous period of six fasli years immediately before the specified date; or

(iii) irrigated by a tube well constructed by the Government or any person;

Provided that any land which has been registered as wet land in the land revenue accounts of the Government and on which no irrigated crop has been raised with the use of water from a Government source of irrigation in any four fasli years within a continuous period of six fasli years immediately before the specified date for want of supply of water from such source, shall not be deemed to be wet land”.

An examination of the definition of “double crop wet land” shows that lands registered as double crop or compounded double crop wet land in the land revenue accounts of the Government do not present any difficulty. The definition which is an inclusive one proceeds to lay down that double crop wet land includes any wet land not so registered; and in section 3(d)(i) two such categories of land which are to be treated as double crop wet land, though not registered as such, are mentioned. They are (1) lands for which in accordance with any scheme of localisation, being adopted under any Government source of irrigation, water is available in both the first and second crop seasons during a fasli year, and (2) the lands included in the B Schedule and Part-II of Schedule Appended to the draft rules for the irrigation of lands in the Godavari Western, Eastern and Centra deltas published in the Rules Supplement to part-II Extraordinary of the Andhra Pradesh Gazette, dated the 16th July, 1962, hereinafter referred to merely as “draft rules”, These two categories of lands also are to be treated as double crop wet lands subject to proviso (a). But the real controversy is what is the meaning to be given to the words “includes any wet land not so registered” occurring in section 3(d). The learned counsel for the respondent contends that these words only mean the lands registered as wet, and not the dry lands. In State of Andhra Pradesh v. P. Lakshminarayana Reddi (2) 1979 (2) A.P.L.J 18 (short notes) Ramachandra Raju, J. held that the lands registered as dry in the revenue records and included in B-Schedule of the localisation G.O,. cannot be treated as double crop wet lands, but have to be treated as single crop wet lands. The iearnd judge, after referring to the definition, of ‘Double crop wet land’ and ‘wel Land’ held thus:—

“In the definition of ‘double crop wet land’ under section 3(d), when the term ‘wet land’ is mentioned in the context it necessarily means wet land as per the registration in the revenue accounts. The Legislature would not have intended by that expression ‘wet land’ used in the definition as meaning also dry land which is made wet land by reason of the inclusive provision made under section 3(v) of the Act in the definition of ‘wet land’. As otherwise it will amount to placing the dry land two steps higher than its registration, which would not have been the intention, of the Legislature. If that was the intention, the Legislature could have easily said in the definition ‘any land’ instead of ‘wet land’ as they have said in the definition given to ‘wet land’. Therefore, the lands mentioned above, which are registered as dry lands in the revenue accounts of the Government, do not come under the definition of ‘double crop wet land though they are included in B-Schedule”.

The learned counsel for the respondent has placed strong reliance on this decision in support of his contention. The learned Government Pleader however sought to contend that Ramachandra Raju, J. has not considered the effect of draft rules of 1962 and that an examination of the said rules would show that any land included in the B-Schedule is entitled to the supply of water during both the seasons and consequently even the dry lands when included in B-Schedule come within the definition of wet lands in the first instance, and subject to the cultivation test they should be treated as double crop wet lands as per the inclusive definition of “double crop wet land”. It is true as contended by the learned Government Pleader that the draft rules of 1962 which are referred to in the definition have not been considered by Ramachandra Raju J. In this context the learned Government Pleader further contends that the words “any wet lard not so registered” occurring in section 3(d) of the Act do not necessarily imply that the lands should have been first registered as wet lands, that on the other hand they also apply to any land which comes within the definition of “wet land” as defined under Sec. 3(c) and that therefore the drylands included in the B-Schedule for which water is provided under the draft rules of 1962 should necessarily be treated as wet lands in the first instance and when all the other requirements of section 3(d) are satisfied they should be treated as double crop wet lands. Ramachandra Raiu J. has no doubt held that “the term ‘wet land’ mentioned in section 3(0) should mean wet land as per the registration in the revenue records. With great respect to the learned judge I am urable to agree with this view. The words “any wet land” in section 3(d) cannot be given such a restricted meaning. If any dry land is included in the Ayacut and if water is assured from any Government source for raising iriigated crops, it should necessarily be treated as ‘Wet land’ as defined in section 3(v). In Muttaiah's case (1) 1978 (2) A.P.L.J 235 Ramachandra Raju. J. observed thus:—

“So far as the items of lands which were treated by the Tribunals as double crop wet lands, the Tribunals throughly went wrong. According to the verification report, these lands are registered dry lands, but localised for irrigation under the Ayacut of Nagarjunasagar Project. Even though they are registered dry lands, as per the definition of ‘wet land’ given under section 3(v) of the Act, they have to be treated as wet lands since they were registered under Government source of irrigation. But to become double crop wet lands the definition given under section 3(d) of the Act must be attracted. To attract the definition of the double crop wet land, the lands must be registered wet in the first instance. When the lands are not registered wet, the definition of double crop wet land has no application at all.”

It can thus be seen that the learned judge has in fact agreed that the lands when included in the Ayacut should be treated as wet land. If that is so, there is no reason why the words ‘includes any wet lands not so registered occurring in section 3(d) should be held to mean only registered wet lands. If such a meaning is to be given to these words then the dry lands which are included in the Ayacut and for which in accordance with the scheme of localisation adopted in any Government source of irrigation for which supply of water is assured, or dry lands included in the B-Schedule for which the supply’ of water is assured for both the first and second crop seasons can never be classified as double crop wet lands on the sole ground that they are not registered as wet lands. This cannot obviously be the intention of the Legislature. Therefore, I am of the view that the observations of Ramachandra Raju, J. in Muttaiah's case (1) 1978 (2) A.P.L.J 235 as well as in State of A.P v. P. Lakshminarayana Reddy (2) 1979 (2) A.P.L.J 18 (short notes) that to attract the definition of double crop wet lands the lands must be registered as wet in the first instance are not correct.

5. But the important question that still remains to be resolved is whether these lands which are registered as dry lands and which are includedin B-Schedule are assured of water suply under the draft rules to raise the two crops as of right during six fasli years immediately before the specified date.

6. These draft rules for the irrigation of lands in the Godavari Western, Eastern and Central Deltas were published in the Rules Supplement to Part II Extraordinary of the Andhra Pradesh Gazette Dt. 16-7 1962. In that dry land is defined as any land not being “wetland”.as defined in clause (k). In clause (k) wet land is defined as follows

“Wet land means the land mentioned in the Ayacut registered of an authorised source as being eligible for irrigation from that source”.

Rule 3(e) reads thus:—

“Lands included in Schedule B may take water for irrigation once in ten days in the first and second Crop Seasons”.

Rule 6 deals with the powers of the Government in regulating the supply of water and sub-rule (4) is relevant and it is in the following terms:—

“6. Notwithstanding anything in the fore-going rules,

(1) xxxxxxxxx

(2) xxxxxxxxx

(3) xxxxxxxxx

(4) The Government reserve the right, with or without reasons given—

(a) to discontinue, either temporarily or permanently, the supply of water,

(i) in the first crop season, to any land other than registered wet land and,

(ii) in the second crop season, to any land other than wet land registered as irrigable only in the second crop season and not in the first crop season, and

(b) to transfer any land from any Schedule or part of a Schedule to another Schedule or part of a Schedule.”

Schedule B is in the following words:—

“Irrigation in both the first and second crop seasons.

All wet and dry lands which are irrigated from authorised sources situated within the reaches of the canals and channels specified in Appendix 3.”

7. This B-Schedule shows that all wet and dry lands which are irrigated from authorised sources specified in Appendix 3 are included in that Schedule. The lands with which we are concerned are dry lands but included in the B-Schedule. But Rule 6(4) makes it clear that the water is supplied compulsorily for both the crops only to the registered wet lands. Though it is mentioned in the B-Schedule that these dry lands can be irrigated in both the seasons, still under Rule 6(4) the Government can deny supply of water to the dry lands in the first crop season and it is only in the second crop season water can be supplied to these dry lands. It can, therefore be seen that so far as dry lands are concerned, the supply of water cannot be claimed as a matter of right for the first crop in view of the language of Rule 6(4)(a)(i). Therefore, there is no assurance of supply of ‘water to these dry lands during the first crop season as the Government may or may not supply. However, a combined reading of these rules and the definition of section 3(v) would certainly lead to the conclusion that these lands should be treated as wet lands.

8. Now let us see whether they can be treated as double crop wet lands in view of the inclusive definition of the same as we find in section 3(d). section 3(d)(i) lays down that any wet land not so registered including the lands covered by Schedule B and part-II of Schedule C appended to the draft rules should be treated as double crop wet lands. But this should be subject to the condition whether water is available in both the first and second crop seasons. The words “water is available both in first and second crop seasons during a fasli year” would apply to the lands included in Schedule B. Even otherwise, unless it is shown that the supply of water from a Government source is assured for both the crops the lands cannot be treated as double crop wet lands.

9. The learned Government pleader however contends that whenever the dry Sands are included in the B-Schebule for which there was continuous supply of water or both the crops during four out six fasli years they should automatically be treated as double crop wet lands as provided under section 3(d)(ii). To accept this submission also it must be shown that the supply of water is assured for both the seasons and that two irrigated crops or dufassal crop could be raised as a matter of right during four out of six faslis. In K. Brahmeswara Sarma v. Special Deputy Tahsildar, Land Reforms (3) 1976 II A.W.R 284 Ramachandra Raju J. held that “when proviso (c) is read with clause (ii) of section 3(d) it appears clear that the Legislature intended to bring under the definition of ‘double crop wet land’, only those lands on which ten crops could be raised as of right during ix faslis in question and not where ten crops could not be raised as of right but happened to be raised on account of any permission granted or otherwise without any right on a temporary basis”. In T. Namayya v. State of Andhra Pradesh (4) 1977 (II) APLJ. 49 a Division Bench consisting of Ramachandra Raju, J and Madhava Rao. J. held thus:—

“By reading the definition of ‘double crop wet land’ as a whole it is not possible to say that all the lands included in B-Schedule would become double crop wet lands irrespective of the fact whether two irrigated crops per Fasli year or a dufassal crop could be raised at least in four fasli years within six fasli years in question from the water that could be obtained from the Government source of irrigation”

(the emphasis is mine).

The same Division Bench again in Janga Sathi Reddy v. State of A.P (5) (1978) I An. W.R 1 at page 4 held.

“When clause (ii) is read with proviso (c) in section 3(d) of the Act it is clear that the Legislature intended to bring under the definition of ‘double crop wet land’ only those lands on which ten crops (six first crops and four second crops) could be raised as of right during the six faslis immediately before the specified date and not where ten crops could not be raised as of right, but happened to be raised on account of any permission granted on a temporary basis which itself does not in any way result in the more value of the land because of its non-permanent feature”.

Therefore, the dry lands, which are included in B-Schedule and for which water is not assured for both the crops, cannot have the same value as those registered wet lands or any other lands in which two crops could be raised, as a matter of right. This is yet another aspect to be borne in mind.

10. In K. Kotayya v. State of A.P (6) 1978 II An. W.R 260 Madhava Reddy, J. held thus:

“From a reading of the several provisions of the Act, it would be clear that one of the essential tests for determining whether a land is a wet land or a double crop wet land or dry land would, be the right to receive water from the Government source. Even a wet land registered as a ‘doubie crop wet land’ to be treated as ‘double crop wet land’ it is not enough that two irrigated crops or duffasal crop should have been raised; it must have been entitled to receive supply of water from a Government source of irrigation and that too not on temporary basis,’ (the emphasis is mine):

11. In all the above decisions the emphasis has been on the right to receive water from the Government source. As discussed above, under Rule 5(4) the Government can always withhold the supply of water to the dry lands in the B-Schedule in the first crop season and when that is so, it cannot be said that the Ayacutdar can claim a right to raise the first crop. Therefore, the contention of the learned Government pleader that in the instant case two crops have been raised in four out of six relevant Faslis taking water from a Government source and that therefore, these dry lands should be treated as double crop wet lands in view of section 3(d)(ii) has no force. It must be shown that the two crops or duffasal crop could be raised as of right and that the lands are entitled to receive supply of water for both the seasons. As a matter of fact in Alluru Sudhakar Reddy v. State of A.P (7) 1977 (1) A.P.L.J 127 Ramachandra Rao J. considered the scope of section 3(v)(ii) which is analogous to section 3(d) (IF) and held thus: —

“The language of section 3(v)(ii) of the Act does not require that irrigation by water from any Government source of irrigation should be as of right. It is enough if it is established that in fact the lands have been irrigated by water from a Government source of irrigation in any four fasli years within a continuous period of six fasli years immediately before the specified date”.

A Division Bench of this Court consisting of the Chief Justice and Seetharam Reddy J. In C.R.P 3041/77 dated 6-7-1979 in A. Malli Reddy v. State of A.P (2) 1979 (2) A.P.L.J, P. 18 (short notes).

“The use (r) of Government water by a land holder either unauthorised, stealthily or with the permission of the concerned authorities, on account of draught or any special circumstances in any particular period, would not in any way create a right in him to take water from the Government source of irrigation as of right xxxxxx The use of water from the Government source, noted in the proviso, as well as the irrigation by water from any Government source of irrigation, stated in section 3(v). (ii) must be as of right”.

12. It is thus clear that unless it is shown that the dry lands included in B-Schedule are entitled to the supply of water from a Government source during both the seasons and that the land holder uses the sajid water to raise the two crops during the four relevant fastis as of tight, cannot be held that the dry lands which are included in B-Schedule should be treated as double crop wet lands. From a plain reading of Rule 6(4)(a)(i) of the draft rules it is manifest that the supply of water to these dry lands which are included in 8-Schedule is not assured for the first crop and the land holder cannot raise the first crop as a matter of right and therefore they should be treated only as single crop wet lands as they satisfy the requirements of section 3(v) only. The finding of the Appellate Tribunal has to be upheld.

13. For the foregoing reasons, the civil revision petition is dismissed. No costs. Advocate's fee Rs. 150/-.