Andhra HC (Pre-Telangana)
Nevuri Gopal Reddy And Ors. vs District Collector And Chairman Of ... on 28 January, 2008
Equivalent citations: 2008(1)ALT632
ORDER P.S. Narayana, J.
1. Heard Sri Sri ram Krishna Murthy, learned Counsel representing Sri Laxmana Chari, learned Counsel for writ petitioners, learned Assistant Government Pleader for Revenue representing respondents 1 to 3, learned Assistant Government Pleader for Irrigation representing respondents 4 and 5 and Sri Roy Reddy, learned Counsel representing 6th respondent.
2. This Court on 4.1.2008 made the following order:
Learned Government Pleader for Irrigation and Command Area Development seeks time for getting instructions.
Post after Sankranthi Vacation, 2008.
In the meanwhile, there shall be a direction that the petitioners shall be supplied water as they were supplied till 14.11.2007.
3. Learned Assistant Government Pleader for Irrigation had placed before this Court para-wise written instructions obtained by her. The 6th respondent filed WVMP No. 76 of 2008 to vacate the interim order. Reply affidavit also is filed by the first petitioner. At the request of the counsel on record, the Writ Petition itself is being disposed of finally.
4. Sri Sriram Krishna Murthy, learned Counsel representing Sri Laxmana Chari, learned Counsel for the writ petitioners had taken this Court through the contents of the affidavit filed in support of the Writ Petition, the counter affidavit and also the reply affidavit and also would maintain that in the light of the facts and circumstances and also the prior orders made in this regard, the change of pattern is impermissible. The learned Counsel also had taken this Court through the specific averments made in the affidavit filed in support of the Writ Petition and would maintain that because of this hasty resolution, which is not in accordance with law, the Ayacutdars would be seriously affected and a representation relating to the same had already been submitted to the 1st respondent and hence in the facts and circumstances of the case let the 1st respondent take appropriate decision in this regard.
5. The learned Assistant Government Pleader for Irrigation would submit that the petitioners are having an effective alternative remedy by way of appeal under Section 41-A(4) of A.P. Farmers Management of Irrigation Systems Act, 1997, hereinafter in short referred to as Act for the purpose of convenience. The learned Counsel also had pointed to Section 41-B of the said Act and would maintain that in the light of the same, the factual controversies raised in the affidavit filed in support of the Writ Petition cannot be effectively gone into by a writ Court. The learned Counsel also pointed out to the parawise remarks obtained by her.
6. On the contrary Sri Roy Reddy, learned Counsel representing the 6th respondent had taken this Court through the contents of the counter affidavit and would maintain that several facts had been suppressed and in fact the first petitioner also was a party to the Resolution and he had signed the same and having signed the Resolution, now the first writ petitioner cannot sworn to the affidavit in support of this Writ Petition and file the present Writ Petition and it would amount to suppression of fact. Further, the learned Counsel would maintain that the Writ Petition itself is not maintainable since this Court cannot decide such questions. The learned Counsel placed strong reliance on certain decisions in this regard. Further, the learned Counsel would point out that under Section 41-B of the Act, the petitioners are having an effective alternative remedy. Hence, viewed from any angle, the Writ Petition is not maintainable. Further, the learned Counsel would submit that the prior orders, which had been relied upon, would not help the writ petitioners in any way since much water had flown subsequent thereto and in the light of the subsequent changes and in the interest of the concerned agriculturists, Ayacutdars, the present decision had been taken and in fact the same had been approved even by the 1st respondent and at this stage to interfere with the said decision would cause serious prejudice to the concerned Ayacutdars in general.
7. One Nevuri Gopal Reddy and others, the writ petitioners, filed the present Writ Petition praying to call for the records concerning the resolution of the water users association Singa Samudram, respondent No. 6, dated 11.12.2007, and the accompanying letter of that date addressed to the District Collector, Karimnagar, the 1st respondent, seeking his permission to implement the resolution and issue an appropriate writ, order or direction especially one in the nature of Writ of Mandamus declaring the same as arbitrary and illegal when it wants to substitute zonal system of water distribution in the place of Anawari system of distribution of water neither to in vogue all along and pass such other suitable orders.
8. The 6th respondent is the Water Users Association, Singa Samudram, represented by its President Madugu Narayana Reddy.
9. The first petitioner had sworn to the affidavit filed in support of the Writ Petition. It is averred that there is Singa Samudram Water Source in Samudra Lingapur village leaving 30 acres for cultivation in that village and having its Ayacut in the village of Yellareddypet Ac.900, Marayanapur Ac.200, Bappapuram Ac.200, Kosultapet Ac.200 and Sarvaipalli Ac.200. As the water from the irrigation source is not sufficient for cultivation of all the Ayacutdars during Tabi season which is the only cultivation of these Ayacutdars, Anavari system of distribution of water was being followed all along ensuring equitable distribution of water to the farmers of the respective villages after ensuring irrigation for 30 acres in Samudra Lingapur proper as follows:
1. Yellareddypet .. 9 anas
2. Narayanapur .. 2 anas
3. Boppapuram .. 2 annas
4. Kosultapeta .. 2 annas
5. Sarvayapally .. 2 annas making a total of 16 Annas i.e., Rs. 1.00. The respective Ayacuts are in the reveal orders of proximity to the source of Singa Samudram water. That being so whenever some dissatisfaction in the distribution of irrigation of water the same system was found to be only satisfactory. Rule 50 of the A.P. (TA) Land Revenue Rules, 1951 is the guidance on the point:
50. Distribution of water for cultivation in cases of shortage of water supply: If in Tabi season, a patasthal source does not have so much water as to be sufficient for the entire ayacut under it, the area to be wet cultivated under the source during such season shall be determined after making an estimate of the quantity of water. The Girdawar shall, with the aid of the village officers, make an estimate of the water after making a panchanama in the presence of respectable panchas of the village and select the lands to be irrigated.
In selecting the lands, the survey numbers nearest to the source and situated in a compact block should be selected. Standing crop of sugar cane, panmalla or plantains and wet inam lands of such sind and neeradies which have been granted to them in lieu of service should be given preference.
The Girdawar shall submit his report together with panchanama to the Tahsildar. After the Tahsildar has accorded sanction, arrangement for cultivation shall be made. The Tahsildar shall be responsible to see that these arrangements are completed sufficiently before the cultivation season.
It is stated that in the year 1959 the matter of Tybandi of these lands for the year 1957-58 was subject matter of adjudication before the Revenue Tribunal which was ultimately carried to Board of Revenue. The Board of Revenue in its decision No. 84 in file No. 24/87/59, Karimnagar, dated 25.4.1962 in substance found favour with the Anawari System while discussing the above rule. It is also stated that no doubt the A.P. (Telangana Area) Irrigation Act, 1357 F.A.P. (Telangana Area) Land Revenue Act, 1317 F. and the Rules not repealed, but the A.P. Farmers Management of Irrigation System Act 11 of 1997 has come into force on 19.4.1997. This Act gives legal empowerment to farmer organizations the effective management and maintenance of irrigation system for reliable supply and distribution of water. Water Users Association, Singasamudram, is formed covering the Ayacutdars of the above villages from the irrigation source of Singasamudram, 6th respondent, under the Act. It is also averred that previous Associations so far have reiterated and the revenue authorities are also have so far found favour with the Anawari system as the salutary method. While the matter stood thus, till 14.11.2007 on which date the present respondent No. 6 endorsed the said method. Now the same Association under the same President, without conducting any meeting of the Association and without even notice or intimation to all the duly effected (sic. elected) Directors like petitioners and others, passed the impugned Resolution dated 11.12.2007 doing away the Anawari system and deciding a zonal system of Sections A and B under which each section would get water in alternative years, i.e., in this year. The Ayacutdars of Yellareddypet and Narayanapur would not get any water by way of irrigation from the water source. These farmers have to wait till next year for the cultivation of their fields, even then because of theft of water during the course of irrigation to reach the ayacuts of the next year zone which are at other end from the source of water, no proper irrigated water would practically reach them. Further there is a water source of Tekulapalli cheruvu to Narayanapur village Ayacutdars, Boppapuram village - Jakkula Cheruvu, but there is no other watei source as such for Yellareddypet ayacutdars. The President of respondent No. 6 has not convened the meeting properly in which such a resolution is passed and that the same was passed in a meeting that was not properly called the meeting was not duly called and it was not attended by all the Directors in particular those like the petitioners 1 and 2. He addressed an accompanying letter to the District Collecotor, Karimnagar, respondent No. 1, for permission to implement the same. The Ayacutdars adversely affected by the resolution have hastened to handover a representation to the District Collector against the impugned resolution, but 6th respondent with the help of revenue and irrigation officials is trying to effectuate in the policy under impugned resolution from this very year. The petitioners made a representation to the 1st respondent on 27.12.2007 to take action for releasing water. In such circumstances it is stated that the writ petitioners approached this Court praying for the appropriate reliefs specified supra.
10. In the counter affidavit filed by the 6th respondent, which was sworn to by the President of the 6th respondent-Water Users Association, it is stated that the writ petition itself is not maintainable and the petitioners are not entitled for issuance of a Writ of Mandamus as prayed for the following reasons:
(a) The issue raised in the Writ Petition relates to equitable distribution of water for irrigation purposes and such an issue has been held by the Courts to be not a justiciable issue in proceedings under Article 226 of the Constitution of India.
(b) The writ petitioners do not have an enforceable or un fettered right to ask for being supplied water for irrigation purposes in a particular manner.
(c) The writ petitioners cannot pray for Mandamus against a statutory body (Water Users Association formed under the A.P. Farmers Management of Irrigation Systems Act, 1997, for preventing it from discharging its statutory functions.
(d) The writ petitioners have not chosen to avail the alternative statutory remedy i.e., a revision under Section 41-B, which is available under A.P. Farmers Management of Irrigation Systems Act, 1997.
Further it is averred that the writ petitioners had consciously and wilfully suppressed the material facts which have a bearing and relevance for the purpose of adjudication of the Writ Petition and on this ground alone the Writ Petition is liable to be dismissed in limine. Further it is averred that the decision to introduce the zonal system of irrigation for assuring equitable distribution of irrigation waters to all the members/Ayacutdars of the Singasamudram WUA was taken strictly in accordance with the procedure prescribed under the A.P. Farmers Management of Irrigation Systems Act, 1997 and the same is also in consonance with the recommendations of the competent authority i.e., Assistant Engineer, Irrigation Section, Upper Manair, Nirmal, and there is no illegality or irrationality in the said decision as alleged by the writ petitioners. This decision was taken after examining all the relevant factors including the interest of all the members of Singasamudram WUA, the irrigation and hydraulic aspects, which had to be considered, in the larger of all the members of Singasamudram WUA, inasmuch as hitherto, the distribution of irrigation water was not being done in an equitable manner and several members/Ayacutdars were being put to hardship on account of the then existing system i.e., Anavari System. It is further stated that the issue had been put before the general body of Singasamudram WUA and a meeting was held on 11.12.2007 on which date it was resolved the Zonal System shall henceforth be followed and the Ayacut under Singasamudram WUA be divided into Zone-A and Zone-B (each comprising an extent of 1130 acres, total extent of 2260 acres including surplus Ayacut). This meeting was conducted after issuing notices through the Territorial Constituency Members and also by beat of tom-tom in all areas. All the general body members, i.e., individual Ayacutdars were aware of the meeting and most of them (86%) attended the said meeting on 11.12.2007, which was held at Boppapur Gram Panchayat Office and they were in favour of the introduction of Zonal System of Irrigation. The record maintained by Singasamudram WUA also discloses the same. The allegation that no notices were issued and no meeting was conducted before passing the resolution dated 11.12.2007 is false and is invented for the purpose of present Writ Petition. As a matter of fact the 1st writ petitioner, Nevuru Gopal Reddy, who is the territorial constituency member for Yellareddypet T.C. also attended the meeting and he also signed the resolution dated 11.12.2007 and his signature is at serial No. 3. The said resolution also is placed before this Court. Thus, it is stated that the writ petitioners not only suppressed the fact that the general body meeting was held on 11.12.2007, they have committed perjury by filing tampered documents to suit their convenience. The resolution dated 11.12.2007 was, as a matter of fact signed by myself, and also by four other Territorial Constituency Members, i.e., 1st writ petitioner (Yellareddypet T.C), V. Rami Reddy (Yellareddypet T.C), A. Narsaiah (Surveypalli T.C) and G. Sudhakar Rao (Korutlapalli T.C). Only one territorial constituency member by name N. Raji Reddy did not sign in the resolution as he was absent n the meeting. The resolution contained the signatures of the President and four other T.C. members and hence it is a resolution passed by the majority of 5 out of 6. It is further averred that the competent authority of the Irrigation and Command Area Development Department, Assistant Engineer, Irrigation Section, Upper Manair, Nirmal also attended the said meeting on 11.12.2007. The said official also submitted a detailed report with recommendations to Singasamudram WUA, giving all the technical and hydraulic particulars and recommending introduction of Zonal System in the Command Area/Ayacut of Singasamudram WUA. Under the said system one zone will be supplied with water for one year and the next zone will be supplied with water for the next succeeding year and so on. It would be pertinent to mention that the cultivation under Singasamudram WUA water sources is mainly for only one crop, that too as and when there is rainfall and as and when the irrigation tank, i.e., Singasamudram gets filled up and as such the only feasible, fair arid equitable method in which water can be distributed for the entire Ayacut is through the Zonal System, which is now sought to be introduced. The earlier Anavari System was causing much hardship to several members of Singasamudram WUA and several of the lands under the Ayacut of Singasamudram Tank would be uncultivated for years together due to the earlier procedure. It would be relevant to mention that the area in question is a drought prone area and is dependent on scanty rainfall. On 3.1.2008, a meeting of the Territorial Constituency Members (Directors) was conducted and the 6th respondent (President) and four other T.C. members i.e., 1st writ petitioner (Yellareddypet T.C), V. Rami Reddy (Yellareddypet T.C), A.Narsaiah (Surveypalli T.C.) and G. Sudhakar Rao (Korutlapalli T.C.) passeda resolution for releasing of water, in terms of the Zonal System. This fact and the fact that a meeting was held on 11.12.2007 have both been suppressed by the writ petitioners. It would also be pertinent to mention that the 1st writ petitioner had signed in both the resolutions dated 11.12.2007 and 3.1.2008 and this has been suppressed. It is also further stated that the contention of the writ petitioners in paragraphs 2 and 3 of the writ affidavit that Anavari System is to be followed is misconceived and irrelevant. The reliance placed on the A.P. (Telangana Area) Land Revenue Rules, 1951 and the order of the erstwhile Board of Revenue passed during the year 1962 is also out of context and does not apply to the current scenario, inasmuch as the said rules are now redundant in view of the subsequent enactment of the A.P. Irrigation Utilisation and Command Area Development Act, 1984 and the A.P. Farmers Management of Irrigation System Act, 1997 and in view of the fact that the Ayacut of the Singasamudram Tank has increased multifold since the year 1962 and the additional Ayacut imposes a great burden on the irrigation system. Further, the petitioners cannot interdict the Singasamudram WUA, which is a statutory body, from discharging its statutory functions under A.P. Farmers Management of Irrigation System Act, 1997. In a matter of this nature, there is bound to be some dissent amongst certain individuals, but the larger public interest has to prevail and the larger interest of the Ayacutdars has to be kept in mind and it is in this context the resolution was passed deciding to introduce Zonal System of Irrigation. The said decision is well within the power and jurisdiction of Singasamudram WUA, as contemplated in Section 17 of A.P. Farmers Management of Irrigation System Act, 1997 and the same is strictly in accordance with law. Further specific stand had been taken that the Zonal System which is now sought to be introduced is only with a view to take care of the entire Ayacut in an equitable manner.
11. A reply affidavit is filed by the first petitioner, wherein again the averments made in the writ petition had been reiterated. It is further averred that the impugned decision to introduce the zonal system of irrigation does not assure the equitable distribution of Singasamudram (Water Users Association). It is stated that the procedure prescribed by the A.P. Farmers Management of the Irrigation System Act, 1997 was not followed. Assistant Engineer, Irrigation Section, Upper Manair, Nirmal, is not a competent authority to make recommendations for the purpose and the copy of the report along with the counter does not inspire any confidence and even that report also says and shows that Yellareddypet and Narayanpur Ayacut are 10 Km and 13 KMs respectively from the tank, but Ayacut area of Yellareddypet is above 9 times of Sarvayapalli Territorial Constituency village Ayacut and the Ayacut of Narayanapuram is double than that of Sarvayapally being equal to that of other two villages of Korutlapet and Boppapuram but at the tail end. Further, the other villages have other sources of water whereas Yellareddypet is depended upon only Singasamudram. In the proceedings of the Revenue Divisional Officer, dated 26.6.1997 dealing with all these aspects and it is held as under:
It is clear from the previous records that every year Taibandi was proposed by the Irrigation Department as per the availability of the water on 'Anawari' basis and the same was fixed and is continued. Till recently it is made clear that the Officer entrusted with certain responsibilities and duties are not supposed to change the age old system prevalent in the past and approved by the Government and any additional extent of and should not be included against Taibandi and any cultivation is such came would be unauthorized and no water should be supplied for such cultivation. Therefore, Taibandi has to be fixed every year by holding the enquiry as to the availability of the water keeping in view the previous Taibandi Takhta and after fixing said only water shall have to be released from the tank.
It is pertinent to note that now Water Users Associations are constituted by holding elections and statutory powers are being given to such bodies. Hence, it is up to them to decide if any change has to be brought in by discontinuing the present system of Anawari if it would be found necessary and proper in the larger interest of the ryots at large and availability of the water in the tank. Therefore, it is ordered accordingly.
It is also stated that after the formation of Singasamudram Water Users Association, 6th respondent, the above Anavari system is continued. Even under the Presidentship of the present President Madugu Narayana Reddy continued this procedure in this resolutions dated 8.11.2006 and 14.11.2007. It is in these circumstances the Vacation Court while ordering the matter to be posted after Sankranti Vacation, 2008, was pleased to grant interim order meanwhile there shall be a direction that the petitioners shall be supplied water as they were supplied till 14.11.2007. Petitioners are the Ayacutdars of Yellareddypet village and Narayanapur village. Further in reply to paragraph 5 of the counter affidavit it is stated that no General Body Meeting was held on 11.12.2007. The allegation that all the Water Users were informed by a beat of tom-tom in all areas and that the individual agriculturists are aware of the Meeting is also not correct. While every time the meeiting of Singasamudram Water Users Association used to be held at the Mandal Headquarter of Yellareddypet including those held on 8.11.2006 and 14.11.2007. Now the impugned resolution is said to have passed in the meeting held at Boppapur Gram Panchayat Office and the said meeting is only 26 days after the last meeting i.e., from 14.11.2007 and within these 26 days what made the President to take turn of Anavari system into Zonal system is not known. The 1st petitioner being the Director of Territorial Constituency of Yellareddypet attended the meeting but refused the resolution and not signed on the resolution dated 11.12.2007 and as such No. 3 of the copy of the resolution dated 11.12.2007 is blank. Another territorial constituency member N. Raji Reddy who was also present in the meeting also refused to sign on the said impugned resolution. Afresh resolution seems to have been prepared on which the signature of 1st petitioner is obtained under threat and coercion. It is also submitted that the copy of the resolution dated 11.12.2007 is the result of tampering and perjury. Further it is stated that the Assistant Engineer is not the competent authority who is appointed under Section 21 of A.P. Farmers Management of Irrigation System Act, 1997. It is the Superintendent Engineer (I.B) Irrigation and Command Area Development, 4th respondent, is the competent authority. The undated report of the Assistant Engineer is pressed into service for the impugned resolution, which is not correct and in particular with regard to the recommendations for changing the system. It is true that the cultivation under Singasamudram Water Users Association is mainly for one crop that too as and when there is rainfall and it is for this reason fair and equitable method of Anavari system is being followed for distribution of Water to the entire Ayacutdars. Zonal system dividing into A and B as per the so-called report of the Assistant Engineer is not correct when it makes the Ayacut of Yellareddypet and Narayanapur Constituencies, which are several times more than that of other constituencies as reflected in previous Anavari system allocations and to deprive one zone completely of water for one year cannot on the face of it be justified. If that is so, it nothing but depriving the right of all the ayacutdars of Yellareddypet and Narayanapur by increasing ayacut of other villages over and above of their shares which were already in force under Anavari system. The zone A Ayacutdars cannot bring the land under cultivation over and above to their shares entitled under Anavari system since the ayacutdars under Zone B are deprived of their right of full extent available under Anavari system. In those circumstances Zone-B cultivable land is becoming less to that of 9 annas whereas Zone-A who are entitled One Ana and two Annas are increasing their right to the equivalent of Yellareddypet, which is illegal and bad. The meeting of 3.1.2008 is false and the signature of 1st petitioner which is said to be on the copy of resolution passed on that day is forged and there is no suppression by the petitioners as alleged. The signature of 1sl petitioner on the copy of resolution dated 3.1.2008 is forged. Further it is stated that the 6th respondent had not acted bona fidely in discharging his functions contemplated under Section 17 of A.P. Farmers Management of Irrigation System Act, 1997. The impugned resolution is not passed in accordance with law and there was no properly constituted meeting and therefore the Resolution is unreasonable. The said Resolution was sent to the District Collector, 1st respondent, for approval through the letter of even date 11.12.2007, against which the petitioners made a representation dated 29.12.2007, which is pending before the District Collector. The President of the 6th respondent wants to sub-serve the interest of the Ayacutdars of his village Boppapuram taking the support of another territorial constituency member said to be of Yellareddypet village, but actually ayacutdars and residents of Boppapuram village without the permission for implementation sought in the letter 6th respondent could not have implemented the impugned resolution.
12. The instructions received by the learned Assistant Government Pleader for Irrigation and the para-wise remarks also had been placed before this Court. The fact that the Water Users Association had adopted Anavari system up to 10.11.2007 had been specified. Further, the proceedings No. D/1488/96, dated 26.6.1997 addressed to the Revenue Divisional Officer, Sircilla regarding Taibandi dispute in respect of Singasamudram tank for the lands of Yellareddypet, Narayanapur, Korutlapet, Boppapuram, Sarvaipalli and Samudralingapur villages also had been specified. Rule 16 of A.P. Farmers Organisation Rules, 1997 also had been referred to.
13. The above are the respective stands taken by the parties.
14. As can be seen from the affidavit filed in support of the Writ Petition, the counter affidavit filed by the 6th respondent and also the reply affidavit, there are several factual controversies relating to the very convening of the meeting and the very passing of the resolution. Specific allegations had been made by writ petitioners and specific counter allegations had been made in this regard. It is needless to say that these are factual controversies between the parties.
15. Act No.11 of 1997 is an Act to provide for Farmers participation in the Management of Irrigation Systems and for matters connected therewith or incidental thereto. Section 2 of the Act deals with the definitions Section 2(d), in this Act unless the context otherwise requires, defines competent authority (Agriculture) means an officer of the Agriculture Department appointed as such under Section 21. Section 2(g), in this Act unless the context otherwise requires, defines 'District Collector' means the Collector of the District in which the irrigation system is situate and includes any office specially notified by the Government to perform all or any of the functions of the District Collector under this Act. Section 2(dd), in this Act unless the context otherwise requires, defines 'competent authority (Engineering)' means an officer of an Engineering Department appointed as such under Section 21. Section 17 of the Act deals with functions of Water Users Association and the same reads as hereunder:
The water users association shall perform the following functions, namely:
(a)To prepare and implement a warabandi schedule for each irrigation season, consistent with the operational plan, based upon the entitlement, area, soil and cropping pattern as approved by the distributory committee, as the case may be, the project committee.
(b)To prepare a plan for the maintenance of irrigation system in the area of its operation at the end of each crop season and carry out the maintenance works of both distributory system and minor and filed drains in its area of operation with the funds of the associations from time to time.
(c) To regulate the use of water among the various pipe outlets under its area of operation according to the warabandi schedule of the system.
(d) To promote economy in the use of water allocated.
(e)To assist the revenue department in the preparation of demand and collection of water rates.
(f) To maintain a register of landholders as published by the revenue department.
(g)To prepare and maintain a register of co-opted members.
(h) To prepare and maintain an inventory of the irrigation system within the area of operation.
(i) To monitorflowof water for irrigation.
(j) To resolve the disputes, if any, between the members and water users in its area of operation.
(k) To raise resources.
(l) To maintain accounts.
(m) To cause annual?audit of?its accounts.
(n) To assist in the conduct of elections to the managing committee.
(o) To maintain other records as may be prescribed.
(p) To abide by the decisions of the distributory and project committees.
(q) To conduct general body meetings, as may be prescribed.
(r) To encourage avenue plantation on canal bunds and tank bunds by leasing such bunds.
(s) To conduct regular water budgeting and also to conduct periodical social audit, as may be prescribed.
(t) To encourage modernization of agriculture in its area of operation; and (u) To maintain the feeder channels of minor irrigation tanks by the respective water users association in the manner prescribed.
Section 21 of the Act deals with Appointment of competent authority and his functions and the said provision reads as hereunder:
(1) The Government may by notification appoint such officer from the Irrigation and Command Area Development Department, or any other department or Corporation including Irrigation Development Corporation, as they consider necessary, to be the competent authority (Engineering) with specific functions as prescribed to every farmers organization for the purposes of this Act.
(2) The Government may also, by notification appoint an officer from the Agriculture Department, to be the competent authority (Agriculture) with the specific functions as prescribed, to every farmers organization for the purpose of this Act.
(3) For strengthening of the farmers organizations the Government may also, by notification appoint an officer or officers from any department or departments, to be the additional competent authority or authorities for discharging specific functions, as may be prescribed.
Section 27 of the Act deals with Appeals and the said provision reads as hereunder:
Appeals: Any party to a dispute or difference aggrieved by any decision made or order passed by the managing committee of farmers organization or by a designated officer, as the case may be, may appeal to the authority and such appeals such be disposed of, in the manner prescribed.
Section 41-A of the Act deals with Power to give directions. Sub-section (2) of Section 41-A reads as hereunder:
(2) If in the opinion of the Government or, as the case may be, the Commissioner, or the officers as designated in Sub-section (1), the President or Vice-President or Chairman or Vice-Chairman or the Members of the Managing Committee of a Farmers Organisation,-
(i) Wilfully omitted or refused to carry out the directions of the Government or the Commissioner or the officers as designated in Sub-section (1) for the proper working of the organization or,-
(ii) abused his position or the power vested in him; or
(iii) is guilty of misconduct in the discharge of his duties; or
(iv) persistently defaulted in the performance of his functions and duties entrusted to him under the Act to the detriment of the functioning of the concerned organization or has become incapable of such performance; or
(v) violated any of the provisions of the Act or the rules made thereunder; or
(a) defaulted in carrying out the financial audit in the manner prescribed; or
(b) defaulted in conducting general body meetings in the manner prescribed; or
(c) defaulted in formation of subcommittees in the manner prescribed; or.
(vi) incurred any of the disqualifications under the provisions of Act, the Government or, as the case may be, the Commissioner or the officers designated in Sub-section (1) may proceed either suo motu or on a representation or application, and may remove such President, and may remove such President or Vice-President or Chairman or Vice-Chairman or the Member or Members of the Managing Committee, after giving reasonable opportunity of making a representation against such action.
Sub-section (4) of Section 41-A of the Act specifies-
All appeals on the orders issued under Sub-section (2) shall lay before an appellate authority not below the rank of District Collector as may be prescribed within a period of thirty days from the date of serving the said orders to the concerned person or persons and the decision of the appellate authority thereon shall be final.
Section 41-B of the Act dealing with Revision by the Government or the Commissioner, reads as hereunder:
The Government or the Commissioner may either on its own accord or an application made call for and examine the records of any Committee of a Farmers Organization or, as the case may be, the records of the Apex Committee in respect of any decision, order or other proceedings made under this Act to satisfy themselves or himself as to the correctness, legality or propriety of any such decision or order or as to the regularity of such proceedings and if in any case it appears to the Government or to the Commissioner that such decision, order or proceedings should be modified, annulled, reversed or remitted for reconsideration, they or he may pass orders accordingly:
Provided that the Government or the Commissioner shall not pass any order prejudicial to any party unless he has been given an opportunity of making a representation.
Further strong reliance was placed on Rule 16 of the A.P. Farmers Organisation Rules, 1997, which deals with powers and functions of the Managing Committee and the same reads as hereunder:
The powers and the functions of the Managing Committee shall be as follows:
(1)to prepare and implement Operational Plan for each season in its area of operation;
(2) to prepare and implement kharif and rabi plans for various crops to be grown;
(3) to prepare budget and allocate resources for various activities;
(4) to prepare and implement annual and long term plans for repairs, maintenance, rehabilitation for development of the irrigation and drainage systems and to accord administrative sanction for taking up works as per availability of resources on priority;
(5) to prepare or cause to be prepare annual accounts of incomes and expenditures, and, assets and liabilities;
(6) to ensure equitable distribution of water among various water users;
(7) to evolve and implement systems of regulation control, monitoring and reporting of water use and land use;
(8)to recommend appointment of auditors for annual audit or concurrent audit to General Body;
(9)to organize execution of works;
(10) to raise resources and determine its deployment for various activities/functions of the organization;
(11) to recommend formation of sub-Committees to the General Body for undertaking various activities;
(12) to settle disputes amongst the Members;
(13) to nominate one of its members to operate the funds of the organization;
(14) to provide developmental services to the Members related to irrigation and agriculture;
(15) to take up training programme for Members;
(16) to prepare annual list of all Water users and Members with voting rights;
(17) to assist the Revenue, Irrigation and Agriculture Departments in the preparation and Maintenance of basic records;
(18) to maintain and operate a Reserve Fund;
(19) to scrutinize the audit reports and rectify defects and report to the General Body;
(20) to carry out and implement all decisions of the General Body; and (21) to establish a management information system and submit periodical report as may be prescribed by Government.
16. The learned Counsel representing 6th respondent placed strong reliance on the decision of the Division Bench of this Court in Pennar Delta Ayacutdars Association and Ors. v. Government of Andhra Pradesh and Ors. ) wherein the Division Bench at paragraphs 35, 36, 37, 45, 83, 84 and 86 observed as hereunder:
The exercise of power of judicial review by the High Court under Article 226 of Constitution has limitations. For the purpose of this case, we need to notice only two such limitations. First, if the issue presented for adjudication is not justiciable, the Court would not venture to scrutinize the decision. Secondly, when there are serious disputed questions of fact or by the very nature of controversy, the administrator's decision maker's choice based on facts is to be respected, the Court not tread into such area and would treat as final the decision of the administrator on facts. The first point for consideration deals with the first limitation and the second point with the second limitation insofar as this case is concerned.
To put it simply, all decisions are not justiciable. All the same in all the jurisdictions it is now well accepted that there is no and there cannot be any unreviewable decision, be it the exercise of sovereign power, be it the exercise of prerogative power, be it the exercise of legislative powers or police powers or powers of Taxation. All decisions are susceptible for judicial review subject to limitations. In the Indian context, having regard to the unique role assigned to the judiciary, and having regard to the Directive Principles of State Policy, no Court can shrug its shoulders and decline to scrutinize a decision, including a policy decision. A Constitutional Court, of course may not be inclined to enquire in a roving manner into the circumstances leading to a decision. What is the minimum and maximum extent of scrutiny would depend on circumstances of each case. These principles are well settled in English Law, American Law and as well as Indian Law. In Shri Sachidanand Pandey v. State of West Bengal , the Supreme Court observed as under:
When the Court is called upon to give effect to the doctrine of Directive Principle and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy making authority. The lease that the Court may do so is to examine whether appropriate considerations are borne in mind and irrelevances excluded. In appropriate cases, the Court go further, but how much further depend on the circumstances of the case. However, the Court will not attempt to nicely balance relevant considerations.
We, however, hasten to add that all decisions of policy cannot be beyond the pale of controversy, and all controversial policy decisions, which require delicate balancing and consideration of complex social, economic and political parameters cannot be brought under judicial scrutiny, though judiciary is not myopic and not insensitive to vagaries of individual and national life. It has its own limitations, and therefore, it would not encroach upon the areas exclusively left by the Constitution to the legislative wisdom and Executive expediency. Prof. Bernard Schwartz in his celebrated book, 'Administrative Law' III Edition Little Brown Company, 1991, dealing with the present status of judicial review in American context, summarized as under:
If the scope of review is too broad, agencies are turned into little modern media for the transmission of cases to the Courts. That would destroy the follies of agencies, created to secure the benefit of special knowledge acquired through continuous administration in the complicated fields. At the same time, Courts should not rubber-stamp the agencies; the scope of judicial enquiry must not be too restricted that it prevents full enquiry into the action of illegality. If that question cannot be properly explored by the Judge, right to review becomes meaningless... in the final analysis, the scope of review depends on the individual judges estimate of the justice of the case.
In this case, how much water is to be stored, how much water is to be released for Khariff crop, how much water is to be left for seedbeds and other demands and how much water is to be released for second Rabi crop and in case if it is released whether it has to be released for 19,000 acres as contemplated in the project report or to irrigate about 1,17,000 acres (as prayed by the petitioners), are issues which cannot be subjected to judicial review, for there are no manageable standards to appreciate the evidence. Further, the dispute about the release of water is unsuitable for judicial review because it requires expertise in 'Irrigation Management System and Water Resources Management', in respect of which matters, there are always more than one opinion. The Government of the day is the best Judge, for the Government gathers information and material from various sources including the administrators assigned with duty to manage the irrigation system. Therefore, in our considered opinion, the issue raised in this case is not justiciable, though in an appropriate case, the judicial review cannot be ruled out.
Before we conclude, we feel constrained to observe that water sustains the life, both animal life and plant life. Life is unimaginable without water. All the human settlements and great civilizations flourished on the riverbanks or in the river valleys. The great Sanskrit idealist Poet 'Sumathi' even exhorted a commoner to choose a village for living where there is a perennial river with plenty of water. The history of the world is replete with instances where battles and wars were fought at the levels of local chieftains as well as great countries only for the sake of water, and for possessing water bearing land with plenty of surface water resources. The rivers are the best among the surface water resources of the Earth. The need for conservation of water in all the surface water resources as well as the underground water water sources need not be overemphasized. It is well settled that the right to flowing water 'is a right publici juris'. The right to use water, which is a right incident to property in the land, is not an absolute right.
Therefore, in an action like the one before us, unless the petitioners plead and prove that deprivation of right to water, for the purpose of irrigation is unreasonable, no action would lie. We must hasten to add that the dispute is not of justiciable nature to be adjudicated by this Court. Our endeavour, as a Court of judicial review, has been to satisfy the Court's conscience that there is no arbitrariness in the decision making process especially when the petitioners complain the deprivation of their right to equality under Article 14 and right to life and liberty under Article 12 of the Constitution. Needless to add, that right to water, which is substantial ingredient to make 'life', is itself a penumbral right to life.
The Division Bench in fact had referred to the under-noted decisions:
(1) A.L. Kalra v. The Project and Equipment Corporation of India Ltd. ; (2) Associated Picture House v. Wednesbury Corporation (1947) 2 ALL ER 640; (3) Chief Constable of the North Wales Police v. Evans (1982) 3 ALL ER 141; (4) Chaturvedi v. Union of India ; (5) Clark v. Allaman 71 Kan. 206 : 70 LRA 971; (6) Council of Civil Service Unions v. Minister of Civil Services (1984) 3 ALL ERR 935; (7) In the matter of Cauvery Water Disputes Tribunal ; (8) L. Chandra Kumar v. The Union of India ; (9) M.P. Oil Corporation v. State of M.P. ; (10) Mahesh Chandra v. Regional Manager ; (11) Puhlhofer v. Hillnigdon London Borough Council (1986) ac 484; (12) Regina v. Panel on Takeovers and Mergers Ex parte Datafin PLC (1987) QB 815; (13) S.G. Jaisinghani v. Union of India ; (14) S.R. Bommai v. Union of India ; (15) Shri Sachidanand Pandey v. State of West Bengal ; (16) Srilekha Vidyarthi v. State of UP ; (17) State of Kansas v. State of Colorado (1906) 206 US 46 : 51 Law Ed. 956; (18) State of Maharashtra v. Madhukar Narayan Mardikar ; (19) State of Punjab v. Ram Lubhya Baggal ; (20) State of U.P. v. Dharmander Prasad Singh ; (21) State of U.P. v. Vijayabahadur Singh ; (22) Syed Yakub v. Radhakrishnan ; (23) T. Gopalan v. MCH 1996 (1) ALD 1122; (24) Tata Cellular v. Union of India ; (25) Union of India v. Upendar Singh and Universal Camera Corporation v. National Labor Relations Board (1950) 340 US 474 : 95 Law Ed. 456.
Further the learned Counsel representing 6th respondent also placed reliance on Perali Water Users Association and Ors. v. Govt. of A.P. I and CAD Department and Ors. wherein the learned Judge of this Court observed at paragraphs 15, 16, 19, 30 and 38, as hereunder:
Whether water should be released for the second Rabi crop to the ryots having ayacut under P.T. channel? This is essentially an issue which lacks adjudicative disposition. It depends on many factors. The project report when the KWDS (Irrigation System) was conceived, the level of the water to be maintained at the head works as well as project site at Srisailam and Nagarjunasar, the nature of soil, the nature of crops and the drinking water requirements of other places and people, are all relevant factors which are to be considered by experts and the Government. The Courts are ill-equipped to adjudicate these issues. The Government is entitled to make pragmatic adjustments which may be required for by particular circumstances. The Court cannot reverse, by judicial review, the decision of the Government merely because the Court feels another decision is fairer or wiser or more logical. When the existence or non-existence of a fact is left to the judgment and discretion of a public body which involves a broad spectrum ranging from the obvious to the debatable, it is the duty of the Court to leave the decision of the fact to the public body to whom the Legislature has entrusted the decision making power See Lord Bightman in Puhlhofer v. Hillingdon (1986) AC 487. This grows from the constitutional principle that 'Court only destroys and does not reconstruct'. The observations of the Apex Court in G.B. Mahajan v. Jalgaon Municipal Council : are apt to be quoted.
...With the expansion of the State's presence in the field of trade and commerce and of the range of economic and commercial enterprises of Government and its instrumentalities there is an increasing dimension to governmental concern for stimulating efficiency, keeping costs down, improved management methods, prevention of time and cost over runs in projects, balancing of costs against time scales, quality control, cost-benefit ratios etc. In search of these values it might become necessary to adopt appropriate techniques of management of projects with concomitant economic expediencies. These are essentially matters of economic policy which lack adjudicative disposition, unless they violate constitutional or legal limits on power to have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of administrator's right to trial and error, as long as both trial and error are bona fide and within the limits of authority.
In this case, there are no standards to try the issue of release or non-release of water from the irrigation system and hence the issue is non-justiciable.
The impugned order is not an order under Section 46 of the Act as contended by the learned Counsel for the petitioners. Therefore, on the question whether Section 22 of the Act applies, this Court holds that there is no obligation either on the Irrigation Officer or the Government to continue water supply until the crop, if any, comes to its maturity. In any view of the objects of the Act, Section 22 cannot be interpreted as conferring any unfettered right on an ayacutdar to insist that till a crop in his land matures the Government should supply and continue to supply water for irrigation. Whatever be the reason and whatever be the consequences it is well settled principle of common law that no person has an enforceable right to draw water from a Government source of irrigation unless the Government decides to supply water from such source subject to conditions that may be imposed. In this connection, a reference may be made to the judgments of this Court in M. Kishtaiah v. Revenue Divisional Officer, Medak , Venkateswarlu v. Rangaiah 1983 (2) ALT 270 and K. Narasimhulu v. District Collector, Medak 1990(1) An. W.R. 113.
The submission of the learned Counsel for the petitioners that even according to respondents 6 to 162 the dry crops of Blackgram, Groundnut and Jowar are to be harvested by the March end and therefore no harm would be caused if water release is continued to the petitioners. He also would contend that as per the report of the Superintending Engineer, dated 20.1.2002 in almost more than Acs. 4,000 seedbeds have been raised and if water is stopped, it would cause hardship and injury. In this petition the Court is not concerned with these aspects. The Court is concerned whether the decision of the Government not to release water to the Rabi crop is justiciable. Though thee is an attempt to contend that most of the petitioners lands are double crop wet lands, the Court is not able to accept it. As seen from the note of the Secretary to the Government, Irrigation Department, and letters of Engineer-in-Chief, the entire Nargarjuna Sagar to Srisailam ayacut is a single crop ayacut. Besides, the Superintending Engineer already gave a statement that water would not be released beyond 31.12.2001. In spite of that a representation was made and an order was passed in great haste and, therefore equity is not relevant in this case involving larger public law issue. The Government disclosed more valid reasons than the reasons pressed upon by respondents 6 to 162 that being sandy soil, there would be seepage and dry crops would be damaged. If water is released according to the Government Pleader, there will be serious repercussions for the entire Khariff season. In a case of this nature where competing claims demand for their 'due' under the constitutional scheme they should be left to the Government alone. Smaller group interests must yield to larger public interest in the interest of nation. Therefore, the submission of the learned Counsel for the petitioners does not command itself to this Court.
Further reliance was placed on P.V. Hemalatha v. Kattamkandi Puthiya Maliackal Saheeda and Anr. , wherein the Apex Court observed at paragraphs 31 and 32:
31. The above argument advanaced is attractive but cannot be accepted for another reason. In our view, the law contained in the Kerala Act regulating the practices, procedure and powers of Chief Justice and Judges of the High Court in relation to all cases from ail enactments appearing before them is a general law which cannot be made applicable to appeals from Code of Civil Procedure regulated by special law that is contained in Sections 96 to 98 of the Code. There is a clear conflict between the provisions contained in Section 23 of the Travaneore-Cochin Act which allows the reference by differing Judges who have delivered separate judgments or opinions to third Judge on issues both on fact and law and the provisions contained in proviso of Sub-section (2) of Section 98 of the Code which permits reference to one or more Judges only on the difference of opinion on the stated question of law. When the Courts are confronted with such a situation, the Courts approach should be "to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific". The principle is expressed in maxims Generalia specialibus non derogant [general things to do not derogate from special things] and Generalibus specialia derogant [special things derogate from general things]. These principles have also been applied in resolving a conflict between two different Acts and in the construction of statutory rules and statutory orders, (See Principles of Statutory Interpretation Seventh Edition, 1999 by Justice G.P. Singh pages 113-114).
32. Assuming for the sake of argument that provisions of Section 23 of the Travancore-Cochin Act are saved by Section 9 of the Kerala Act and are applicable to the High Court of new State of Kerala, in our considered opinion since provisions contained in Section 98 of the Code is a special law as compared to the general law contained in Section 23 of the Travancore-Cochin Act read with Section 9 of the Kerala Act, the 'special law' will prevail over the general law and the provisions of Section 98 of the Code in all its terms will have to be applied to civil appeals arising from civil suits which are regulated by the Code.
In Welcome Hotel and Ors. etc. v. State of A.P. and Ors. it was observed by the Apex Court at paragraph 7:
It was next contended that the maximum price of scheduled items fixed under the impugned orders is economically unprofitable and the same have been arrived at without scientifically examining the price of inputs and overhead charges and the reasonable return on investment and therefore, the exercise of fixing maximum price suffers from the vice of arbitrariness and must be declared unconstitutional as being violative of Article 14. While canvassing the submission some attempt was made both on the side of the petitioners as well as on the side of the State to take us through the labyrinth of the tables drawn up by both sides showing prices of inputs and overhead charges. We declined to be involved in the vortex of this cost accountant's exercise as we are neither experts of the subject nor we consider it necessary to undertake this exercise. The argument proceeded that the prices of inputs have escalated so high that the maximum prices determined by the impugned orders have become uneconomical. For this malaise petitioners have to thank themselves because it was an integral part of their agreement with the Minister of Civil Supplies on December 31, 1980 that the maximum prices fixed by the impugned orders would be re-examined on the expiration of the three months from the date of the agreement. Instead of honouring this agreement, the Petitioners within a span of 12 days rushed to this Court and obtained ex parte stay order wholly suppressing the fact that the orders impugned in these petitions have already been replaced by the latest order dated January 5, 1981. Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court.
In State of Punjab and Ors v. Sarav Preet and Ors. the Apex Court at paragraph 4 observed as hereunder:
It is brought to our notice that the respondent had in fact appeared in the examination conducted by Punjab University which had been authorized to conduct such examination for recruitment of Lecturers in Geography and she had applied for the same in the year 1995 with Roll No.3316 but she failed in the same. If that was so, the respondent had an obligation to disclose this fact before the High Court. Not having done so and not possessing the relevant qualification and all that she possessed was only a qualification in a related subject, which was not sufficient for the purpose of the recruitment is sufficient to dismiss her petition. In the circumstances we think the view of the High Court is not justified and the same should be set aside and the Writ Petition filed by the respondent should be dismissed.
17. On the strength of these decisions, submissions at length were made relating to the maintainability of the Writ Petition and also further submissions had been made on the respecticve stands taken by the parties. At any rate, in the light of the limitations imposed on this Court in exercising the power of judicial review and parameters in relation thereto in interfering with such matters, relating to distribution of waters, this Court normally not to interfere. The relevant provisions of the statute governing the field and also the relevant Rule already had been referred to supra.
18. Certain further submissions were made on the ground that the alternative remedy by way of appeal or alternative remedy by way of Revision being available, the Writ Petition cannot be maintained.
19. The grievance ventilated by the writ petitioners is relating to the change of system, which had been in vogue all along. The writ petitioners are contending that there was no meeting convened at all and the alleged resolution which is being put forth is just brought into existence and the same cannot be treated as a valid one. As already specified above, these are all factual controversies which cannot be gone into by a writ Court. Hence, this Court is not inclined to express any opinion relating to the factual controversies, which had been canvassed by both the learned Counsel representing the writ petitioners as well as 6th respondent.
20. It is pertinent to note that whatever may be the system or whatever may be the pattern that may be adopted, it should be in the interest of the general Ayacutdars. No doubt the 6th respondent, concerned Water Users Association, had taken a specific stand that the present change is only in the interest of the general Ayacutdars. The same is being controverted by the writ petitioners.
21. No doubt there is some controversy between the parties. Whether in fact the first petitioner also is a signatory and whether in fact the first petitioner participated in the meeting or not, this is also predominantly a question of fact. However, in the light of the peculiar facts and circumstances since it is stated that the petitioners already preferred certain objections by way of representation before the 1st respondent, let the 1st respondent consider such objections and take an appropriate decision in this regard especially in view of the urgency pleaded before this Court within a period of two (02) weeks from the date of receipt of a copy of this order. Further, liberty is given to the writ petitioners to pursue the other remedies available to them under the statute if the writ petitioners are so advised. Except making these observations, no further positive relief can be granted in the present Writ Petition.
Accordingly, with the above observations, the Writ Petition is disposed of. There shall be no order as to costs.