The vesting of a tank in the Gram Panchayat under Section 85 of the Andhra Pradesh Gram Panchayats Act, 1964, does not amount to total divesting of the Government, and the Government can assume the administration of the tank or define or limit the control vested in the Gram Panchayat under sub-section (3) of Section 85.

JAYACHENDRA FEDDY, J.

( 1 ) THE Gram Pancbayat of Mandapaka, represented by its Sarpanch and two of its members are the petitioners in this application seeking a writ of Mandamus or other directions directing the respondents viz. , the District collector and other District officials not to interfere with the petitioners management and control with respect to an extent of Ac. 21-68 cents in the tanks covered by R. S. Nos. 1ll, 372, 302/1 and 7 Mandapaka village.

( 2 ) THE case of the petitioners is that these tanks vest in the Panchayat and the water therein being used by the public and that therefore all these lands cannot be assigned by the Government to private persons. Relying on Sec, 85 (1) of the A. P. Gram Pancbayats Act, 1964, hereinafter referred to as the Act, it is contended by the learned counsel for the petitioners that it is the Panchayat that has the control over the maintenance of these tanks and that they vest in the Gram Panchayat and the government cannot under any circumstances except as provided under sub-section (3) of Section 85 of the Act, divest the Gram Panchayat of these tanks. The learned counsel for the petitioner relied on a judgment of justice Muktadar in Ghanta Narisi Reddy vs. Government of Andhra Pradesh. That was a case where the Tahsildar assigned an extent [of Ac. 2-50 cents a portion of the tank to one of the residents of the village for the purpose of cultivation. The facts also show that the water stored in the tank is being used for drinking purposes by men and cattle and that the tank is not silted and not in disuse. Under those circumstances the learned judge having examined the scope of Sec. 85 held that wider meaning should be given to the word tank used in Sections 85 and 86 of the Act and accordingly held that the Tahsildar has no jurisdiction to assign the land. Yet another decision relied upon by the learned counsel for the petitioners is that of my learned brother Justice Chennakesav Reddy in W. P. Nos. 1283 and 1677 of 1977. The facts in that case also show that the land assigned was a portion of the tank the water of which was used by the villagers and it is also mentioned therein that it is the only source for drinking water. It is highly doubtful whether the ratio laid down in these two decisions apply to the facts of the case on hand.

( 3 ) IT may be mentioned here that in the counter filed by the government it is stated that the extents of land covered by R. S. Nos. 373, 302/1 and 7 of Mandapaka village are not being assigned to anybody. Therefore we are concerned only with S. No. 111 a portion of which is assigned to one Adeyya. He has come forward with an application w. P. M. P. No. 6582 of 1979 for impleading him as a party respondent and the same is ordered.

( 4 ) IT is on the record that the Tahsildar visited the village and inspected r S. No. 111 of the village which is classified in the village accounts as tank and sent up a report that the tank is almost silted up except to an extent of Ac. 1-00 and the silted up portion is under unauthorised occupation of some persons and that it is not serving any communal purposes. On the other hand there is a resolution of Panchayat in which it is mentioned that the tank is mostly used for drinking water by cattle and supplying water for irrigating paddy fields. Having carefully examined the report of the Tahsildar and the resolution of the Gram Pancbayat I am inclined to accept the report of the Tahsildar. It therefore becomes clear that the tank in question is almost silted up and admittedly there is no irrigation inder this tank and it is also nut being used for any communal purposes and that the far away from the village. It it also not the case of the Panchayat that the tank is being used for drinking purposes or any other communal purposes.

( 5 ) THE question is whether even under these circumstances Sec. 85 (1) of the Act applies. Sec. 85 (1) of the Act occurs in Chapter V which deals with public safety, convenience

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