Andhra HC (Pre-Telangana)
A.Ganapathy vs Government Of Andhra Pradesh Rep. By Its ... on 9 July, 2013
Author: Ramesh Ranganathan
Bench: Ramesh Ranganathan
THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No.17187 of 2013 dated:09-07-2013 A.Ganapathy...Petitioner Government of Andhra Pradesh rep. by its Principal Secretary, Panchayat Raj & Rural Development (RD-III) Dept., Hyderabad & Ors...Respondents COUNSEL FOR THE PETITIONER: SRI K.S.MURTHY COUNSEL FOR THE RESPONDENTS: GOVT. PLEADER FOR REVENUE (Telangana Area) <Gist: >Head Note: ?CITATIONS: 1) AIR 1995 SC 705 THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No.17187 of 2013 ORDER:
The relief sought for in this Writ Petition is to declare the action of the respondent authorities, in making a blanket declaration that a distance of 250 metres shall be maintained from the alleged public drinking water source to the point where the petitioner proposed to dig a borewell and in rejecting the application of the petitioner, as illegal and unconstitutional. A consequential relief is sought to direct the respondents not to interfere with the activities of the petitioner in digging a borewell as per his application after declaring that there is no blanket ban to dig a borewell within 250 metres of an alleged public drinking water source.
By the impugned proceedings dated 29.04.2013, the petitioner was informed that the subject borewell was not in the ayakut region; as per the orders issued by the Government any new borewell for drinking water purposes must be located at a distance of at least 250 metres; and the proposed site of the applicant was 134 metres from a borewell which was being used for drinking water by the people. The petitioner's application was, therefore, rejected.
Sri K.S.Murthy, learned counsel for the petitioner, would question the validity of the impugned order on the grounds that every borewell cannot be treated as a public drinking water source and it is only the source, from which the Government or any local authority provide drinking water to the public, which can be said to be a "public drinking water source"; mere proximity to a public drinking water source, even if it is within a distance of less than 250 metres, is not prohibited under Section 10 of the A.P. Water, Land and Trees Act, 2002 ("WALTA" for short); any person, who intends to sink a well, can seek permission of the authority who is required to examine the application in accordance with Section 10(3) of WALTA; the restriction under G.O.Ms.No.227, dated 08.04.2013 is only that a borewell should not be dug within a distance of 250 metres from a public drinking water source as per Clause 10 of WALTA; the proceedings dated 30.04.2013 reveals that there were 59 borewells in the village and there was no record to show that permission had been obtained by them; the petitioner has been singled out for discriminatory treatment; and no action has been initiated against the other 59 persons.
Section 2(12) of WALTA defines a 'public drinking water source' to mean a well from which the Government, or any local authority, or such other authority as the Government may by notification specify, provide water to the public and includes such well or any other drinking water source as may be notified by the Authority. Section 2(22) defines 'well' to mean a well sunk for the search and extraction of ground water and includes a dug well, borewell, dug-cum-borewell, tube well, and filter point. Section 10(1) prohibits any person, subject to sub- section (2), from sinking a well in the vicinity of a public drinking water source within a distance of 250 metres in areas other than the areas covered under Section 9 and sub-section (1) of Section 11 of WALTA.
The submission that the borewell, dug by the government or local authority for use of the general public to meet their drinking water requirements, is not a public drinking water source is difficult to accept as a "public drinking water source" would include a borewell from which the Government or any local authority provides water to the public. Accepting the construction placed by Sri K.S. Murthy, on the expression 'public drinking water source', would mean that only such government dug borewells, from which the government or the local authority draw water from and, in turn, supply it to those in need thereof, would fall within the ambit of the definition. I see no reason to place such a restrictive construction on the expression 'public drinking water source' as defined in Section 2(12) of the Act, as it would result in exclusion of all borewells, dug either by the government or the local authority to be used by the public for their drinking water needs, from the ambit of the definition and in placing more emphasis on "supply of drinking water" rather than its "source". Such a construction would not only result in negating the object of the enactment, which is to promote water conservation, regulate exploitation and use of ground and surplus water and for protection and conservation of water sources, but would also promote unregulated digging of borewells and mindless exploitation of ground and surplus water.
As long as the borewell, dug either by the Government or by the local authority, is meant to provide drinking water to the members of the locality, such a borewell would fall within the definition of a "public drinking water source". I do not also see any merit in the submission of Sri K.S. Murthy, Learned Counsel for the petitioner, that the impugned order is discriminatory. It would not be proper for this Court to examine the plea of discrimination as the other 59, who are said to have dug borewells in the vicinity, are not arrayed as respondents in the Writ Petition and as no mandamus can be sought from this Court to perpetuate an illegality, even if the bore-wells dug by the other 59 is presumed to be illegal. (Chandigarh Administration v. Jagjit Singh1).
The fact, however, remains that the impugned order does not even state that the subject borewell, which is said to be located at a distance of 134 metres from the petitioner's borewell, was dug either by the government or the gram panchayat for it is only such a borewell, which is meant for drinking water use of the public, which would fall within the ambit of the definition "public drinking water source". Even if the borewell, which is said to be located within 134 metres of the site where the petitioner proposes to dig a borewell, is held to be a "public drinking water source", there is no embargo under Section 10 of the Act for grant of permission to sink such a well. The power to grant permission in such a case is, however, subject to the restriction under Section 10(2) of WALTA which stipulates that, any person desirous of sinking a borewell for the purposes of irrigation or drinking water or any other purpose within a distance of 250 metres from the public drinking water source, should seek permission of the prescribed authority. Another condition stipulated therein is that, if such a person intends to use a power driven pump, he must obtain prior permission from A.P.TRANSCO, under Section 13 of the Andhra Pradesh Electricity Reform Act, 1998, in such manner as may be prescribed. Section 10(3) of WALTA empowers the authority, within 45 days of receipt of an application under sub-section (2), on the advice of the Technical Officer and for reasons to be recorded in writing, to grant permission for sinking of a well, either for irrigation or for drinking water purposes, if it is satisfied that such sinking would not adversely affect the public drinking water source or refuse to grant permission if such sinking affects such source adversely. It is evident from Section 10(3) of WALTA that, if the authority is satisfied that granting permission to sink a borewell would not adversely affect the public drinking water source, he may grant permission. If, on the other hand, he is satisfied that it would adversely affect a public drinking water source, he is entitled to refuse to grant of permission.
The third respondent, in passing the impugned order, has not even examined whether granting the petitioner permission, to dig a borewell, would adversely affect the public drinking water source or not. Reference by the third respondent to G.O.Ms.No.227 dated 08.04.2013 is also misplaced as Annexure-II of the said G.O., while specifying the distance from the existing public drinking water source to be not less than 250 metres, also notes that this is as per Section 10 of WALTA. As noted hereinabove there is no embargo under Section 10 of WALTA for grant of permission even if the proposed borewell is located within a distance of 250 metres from a public drinking water source provided, of course, that the Tahsildar is satisfied that granting permission would not adversely affect the said public drinking water source. Before arriving at such a satisfaction, and in order to decide whether or not permission should be granted, the Tahsildar is required to seek prior advice of the Technical Officer and only thereafter take a decision and pass a reasoned order in accordance with law. The distance limits stipulated in G.O.Ms.No.227 dated 08.04.2013 would not prohibit the Tahsildar from passing a reasoned order in accordance with law. As it is evident that the third respondent has not considered any of these aspects, the impugned order must be and is, accordingly, set aside. The third respondent shall consider the petitioner's application afresh; ascertain whether the borewell which is used for drinking water by the people, (allegedly within 134 metres from the borewell proposed to be dug by the petitioner), has been dug either by the Government or by the Gram Panchayat; if it is so dug, then to seek advice of the technical officer; thereafter pass a reasoned order, after satisfying himself whether or not granting permission to sink such a borewell would adversely affect the public drinking water source; and then communicate his decision to the petitioner. This Court may not be understood to have held that the borewell, which is now being used by the villagers to meet their drinking water needs and which is said to be located at a distance of 134 metres from the borewell proposed to be sunk by the petitioner, is a "public drinking water source" as these are all matters for the third respondent to ascertain. The entire exercise, culminating in a reasoned order being passed and communicated to the petitioner, shall be completed within a period of three weeks from the date of receipt of a copy of this order.
The writ petition is disposed of accordingly. The miscellaneous petitions pending, if any, shall also stand disposed of. There shall be no order as to costs.
_______________________________ (RAMESH RANGANATHAN, J) Date:09.07.2013