Andhra HC (Pre-Telangana)
Pennar Delta Ayacutdars Association ... vs Government Of Andhra Pradesh And Others on 12 May, 2000
Equivalent citations: 2000(3)ALD715
ORDER V.V.S. Rao, J.
1. As a prologue to this judgment, we may say that notwithstanding the doctrine of 'Judicial Restraint' and considerations of 'justiciability' of the issues involved in this case, as a Constitutional Court, entrusted with the solemn duty to prevent infringement of fundamental rights and human rights, we have heard the learned Counsel for the appellants for a considerable length of time. The reason is that, 'Judicial activism' propels us into the arena of prohibited area, though realszation is subliminal in judicial mind that our greatest weakness is our unbounded strength gushing out from Article 226 of the Constitution of India.
2. The unsuccessful petitioners in the writ petition are the appellants before us. The writ petition filed by them pro bono publico met the 'Waterloo' at the threshold. The learned single Judge dismissed the writ petition () taking a view that 'the situation on hand is not a judicially manageable one, and that the Court is not properly equipped to adjudicate the lis concerning the release of water from an irrigation project for the second Rabi crop mainly in Nellore District. Facts are not in dispute; but perceptions are. Hence, let us notice the facts to the extent necessary.
3. The parties herein are referred to as per their status in the writ petition. The petitioners approached this Court praying for a declaration that the action of the respondents-Government of A.P., District Collector-cum-Chairman, Irrigation Development Board, Nellore, Superintending Engineer, Irrigation Circle, Nellore, Superintending Engineer, Somasila Project, Nellore, and Chief Engineer, Telugu Ganga Project, Srikalahasthi, in deciding not to release water from Somasila Project for the second crop for the Pennar Delta Ayacutdars, as illegal, arbitrary, unjust, apart from being violative of constitutional guarantees adumbrated in Articles 14, 21 and 300-A of the Constitution of India, and for consequential directions, to forthwith release water for the second Rabi crop in Pennar Delta.
4. As disclosed in the affidavit, accompanying the writ petition, it is the case of the petitioners that for stabilising the ayacut of Pennar Delta, comprising Nellore and Sangam ayacuts, the Somasila Project was conceived and completed in 1972. The project is designed for supplying irrigation water to 1,75,000 acres in Pennar Delta for first crop (Khariff), and 19,000 acres for second crop (Rabi). North Feeder Channel, Kavali Canal, South Feeder Channel and Kanpur Canal form part of the irrigation system under the Somasila Project, which is designed to have a storage capacity of 78 TMC (Trillion Cubic Meters). As per the project report, the ayacutdars of Pennar Delta are entitled for supply of water from August. However, water for Khariff season during 1999-2000 for the ayacutdars of Pennar Delta was released only for 1,14,000 acres instead of 1,75,0000 acres on the ground that there is insufficient of water, that too from October, 1999. Due to unseasonal rain and flash floods during February, 2000, the farmers, who raised Khariff crops suffered huge cumulative losses to the extent of Rs,150-00 crores. The inaction on the part of the respondents in not releasing the water for Khariff crop as per schedule in August, 1999, contributed this. If water had been released in time, the crop would have been harvested by January, 2000, thereby avoiding the wrath of the nature. The State Government ought to have taken corrective steps having regard to the loss of Khariff crop, but the second respondent-Irrigation Development Board took a decision as published in the newspaper 'The Hindu' on 30-3-2000 that 'no second crop would be permitted under Pennar Delta this year'. This is contrary to the determined and established rights as the ayacutdars of the Pennar Delta are entitled to 3.702 TMC of water for the second crop as a matter of right. Therefore, they filed the writ petition.
5. It is the case of the petitioners, that the ayacutdars have a right to water for the second crop as per the project report, and that though there is 17.00 TMC of water, they are not releasing the water with an intention to supply drinking water to Chennai, and that in the past, even when the storage in the reservoir was about 12.00 or 8.00 TMC, water was released for the second crop, and that when the Khariff crop failed due to untimely rains and when water is available in the reservoir as well as other irrigation canal systems, it is arbitrary and unreasonable on the part of the respondents not to release water for Rabi crop.
6. The fourth respondent filed a counter affidavit on behalf of respondents 2, 3 and 5 as follows: The first respondent issued orders in G.O. Ms. No.90 Irrigation & CAD (Projects Wing TGP.I) Department dated 8-2-1990 constituting a committee to monitor release from Somasila Reservoir (hereinafter referred to as 'the Somasila Irrigation Committee) to maximise the benefits under the reservoir. The said committee consists of Engineer-in-Chief and seven other members from Irrigation Department from all regions. The committee makes recommendations every year for the release of water for second crop taking into consideration the availability of water during the season and crop requirement. The recommendations made by the District Irrigation Advisory Board are also considered by the Government before issuing specific orders each year notifying the extent of irritable land and quantity of water to be released for the second crop. As there was adequate water in Somasila Reservoir during 1999, the Government issued G.O. Ms. No.59 dated 17-4-1999 to release water to an extent of 15.34 TMC for irrigating an extent of 1,23,505 acres. However, due to failure of southwest and northeast monsoons the inflows into the reservoir have been inadequate necessitating restricting water supply even for Khariff season of the year 1999-2000. Therefore, the District Irrigation Advisory Board in its meeting on 28-11-1999 proposed Khariff ayacut as 1,35,457 acres only as against the developed ayacut of 3,04,100 acres. However, taking advantage of rains during the last week of November, 1999, additional extent of land was brought under cultivation transplanting in an extent of 2,04,706 acres. From 6-10-1999 to 12-3-2000, 25.009 TMC of water was released for Khariff ayacut though the inflows received into the reservoir during the same period was 22.149 TMC including 12.42 TMC of Krishna water released from Srisailam Reservoir and let into Somasila reservoir from 6-10-1999 to save the crops under Somasila project. After releasing the water for Khariff ayacut, due to meagre inflows the available storage of water is 12.640 TMC as on 12-3-2000. In view of this, the 3rd respondent convened a meeting of the District Irrigation Advisory Board. The said body took into consideration the available storage, the balance demands to be met from the Somasila reservoir and determined that 10.50 TMC of water is required to meet the compelling demands for Khariff crop under canal system under direct ayacut in Pennar Delta, for seedbeds for Khariff 2000-2001, for drinking water for Nellore and Kavali towns and provision for evaporation losses. After determining the water required to meet these demands, the District Advisory Board in its meeting held on 12-3-2000 resolved not to permit second crop in Pennar Delta for the year 1999-2000 (Fasli 1409). The resolution was duly sent to the Government for consideration.
7. The Committee constituted as per G.O. Ms. No.99 dated 8-2-1990, after examining various aspects had recommended in 1996 that the minimum storage of 7.5 TMC has to be maintained at Minimum Drawn Down Level (MDDL) and, therefore, since 1996 the MDDL at 7.5 TMC is being maintained in Somasila reservoir. The District Irrigation Advisory Board while passing the resolution on 12-3-2000 also took this into consideration. Therefore, there is no water available in Somasila reservoir for supply to Pennar Delta for Rabi Crop 1999-2000. The petitioners cannot claim release of water for second Rabi crop as equitable distribution of available water is a policy matter required to be decided by the Government. The respondents stoutly denied the allegations made by the petitioners that there is sufficient and adequate water available in Somasila reservoir for release for second crop in Pennar Delta.
8. The first respondent filed a separate counter-affidavit. It is contended that no statutory rule or provision having statutory force has been violated and, therefore, the writ petition is not maintainable under Article 226 of the Constitution of India. The resolution-dated 12-3-2000 passed by the District Irrigation Advisory Board was placed before the Somasila Irrigation Committee. The Committee in its meeting held on 30-3-2000 examined the extent of water available as on 29-3-2000 and recommended that no area shall be permitted under Pennar Delta for Rabi second crop, that 1.5 TMC of water be released for Rabi Irrigation Dry crop (Rabi ID crop) under Somasila project canals from 1-4-2000 to 30-6-2000 as Rabi ID crop is in uplands and unlike the Pennar Delta it has only one crop, that water be released to seedbeds for ensuing Khariff crop only after the reservoir starts receiving appreciable inflows, so that water in the reservoir is not depleted much below the MDDL and release water for drinking water supply to Nellore and Kavali towns and villages under Command Area of Somasila project.
9. The Government considered the recommendations of the Somasila Irrigation Committee. In view of the fact that there is acute shortage of water in Somasila reservoir on account of reduced inflows, the Government decided to close the irrigation canals in Pennar Delta by 31-3-2000 and not to permit any area under Pennar Delta for Rabi second crop, to release 1.5 TMC of water for Rabi ID crop under Somasila project canals and to make necessary arrangements for adequate drinking water supply for Nellore and Kavli towns and villages by releasing adequate water from Somasila reservoir. The Government also decided not to release water in Survepally Reservoir/tanks with a view to ensure completion of drainage works by 30-6-2000. Therefore, the first respondent prayed for dismissal of the writ petition.
10. The main contention of Sri S. Ramachandra Rao, the learned senior Counsel appearing for the petitioners before the learned single Judge was that the decision of the respondents in refusing to supply water is arbitrary and that non-supply would infringe the statutory rules as well as fundamental rights under Articles 14 and 21 of the Constitution of India. On the other hand, the learned Additional Advocate-General who appeared for the respondents contended that the decision taken by the respondents is, in fact, in the interests of the fanning community, that the decision making process is not vitiated by any error and that the decision is a collective decision taken by the technical experts having regard to various factors and ground realities obtaining at the project.
11. The learned single Judge considered the fact that the committee of technical experts constituted as per G.O. Ms. No.99 took a decision having regard to the total demands, the MDDL required and arrived at a conclusion that there will be no water available for second crop under Pennar Delta and observed that the conclusion reached is a reasonable conclusion. The learned single Judge observed that unlimited quantity of water is not available in the reservoir and, therefore, it is for the State to decide as to how the existing available water may have to be utilised and managed. The Court of judicial review cannot interfere with such a policy decision taken by the State Government having regard to the various policy options, especially when such a policy decision is taken after careful scrutiny and examination of various factors. The learned single Judge relied on the dicta of the Supreme Court in State of U.P. v. Vijayabahadur Singh, , in support of the conclusion. The learned single Judge also held that when the situation on hand is not judicially manageable, the Court cannot indulge in an act of nice balancing. Accordingly, the writ petition was dismissed.
12. When the matter came up for preliminary hearing as to the admission of this appeal under the Letters Patient, we heard the learned senior Counsel for the petitioners as well as the learned Additional Advocate-General for some time. At the request of the learned Additional Advocate-General, the matter was adjourned to enable him to file a report of the Irrigation Engineers of Somasila Project depicting the latest position as to the water levels in the main reservoir as well as in the irrigation tanks, which are fed by the reservoir. The learned Additional Advocate-General filed an affidavit of respondent No.5 accompanied by the Report dated 24-4-2000 of the Committee of Engineers.
13. Before we formulate the points that arise for consideration, it is appropriate to notice the admitted as well as disputed factual matrix as culled out from pleadings, and various documents placed by the petitioners and respondents in evidence of the averments.
14. The Somasila Project was conceived about three decades ago. The Planning Commission approved the Project (Stage-I) in 1973 at an estimated cost of Rs.17.20 crores, which now due to cost escalation stands at Rs.415.00 crores. The project envisaged the construction of a composite dam across the river Pennar near Somasila village of Nellore District in Andhra Pradesh, and building its canal system consisting of North Feeder Channel, South Feeder Channel and Kavali Canal. The avowed object was to stabilise the ayacut of 1,04,490 hectares under the existing delta and tanks system as well as to provide irrigation to 38,475 hectares of new area in Nellore District. The Status Report for 1995, prepared by the Central Water Commission, Government of India, (filed by the petitioners) gives the details of the ayacut under the project. The same is as under:
Total Ayacut SI. No. Name of the System Stabilisation of wet ayacut in Khariff in ha (acres) Demand M cum (TMC) ID Ayacut in Rabi in ha (acres) Demand M cum (TMC) (1) Pennar Delta 1st Crop 70,850 (1,75,000) 579 (20,445) 2nd Crop 7,692 (19,000) (Rabi) 105 3.702 (2) North Feeder Channel 9,312 (23,000) 75 (2.650) 8,097 (20,000) 64 (2.259) (3) Kaveli Canal 10,121 (25,000) 82 (2.881) 20,243 (50,000) 153 (5.418) (4) South feeder Channel 6,478 (16,000) 52 (1.844) 10,121 (25,000) 135 (4.772) Total 1,04,453 (2,58,000) 893 (31.522) 38,4561 (95,000) 352 (12.459)
15. The Status Report also mentions that Somasila reservoir will receive 15 TMC of Krishna water and divert it to Kandaleru reservoir for drinking water supply to Chennai city as part of Telugu Ganga Project, a joint project of Andhra Pradesh and Tamil Nadu governments. It may be noticed that the Government appointed an expert committee to look into the irrigation, planning and other aspects.
16. The Status Report of 1995 shows that in 20 years period, after commencement of the work, an expenditure of Rs.235.52 crores was spent, and it would take another 10 years for the entire project to be completed as the canal system and the project design has lined channels, and they are yet to be completed at certain portions, and if completed they will be in a position to carry their designed discharge and render the contemplated benefits. Be that as it may, it is not disputed that the wet ayacut in the second Rabi season of the agricultural year is contemplated only under the Somasila reservoir to an extent of 19,000 acres. Under the canal system - North Feeder Channel, South Feeder Channel and Kavali canal, what is contemplated is only Khariff irrigation, and Rabi wet irrigation is not contemplated.
17. The report of the Committee of Engineers, filed before this Court on 26-4-2000 adverts to the contemplated irrigation under the irrigation project and the ayacut developed in the respective canals in the Pennar Delta as under:
Total contemplated ayacut and its demand as per project report and the ayacut so far developed and its demand.
Sl.No. Component As per project report As developed so far Ayacut in acres Demand in TMC Ayacut in acres Demand in TMC (1) Pennar Delta 1st crop Khariff wet 1,75,000 20.445 2,50,000 27.702 2nd crop Rabi wet 19,000 3.702 19,000 3.702 (2) Kanupur Canal Khariff wet 17,000 1.934 17,000 3.702 Rabi I.D. 44,000 4.772 (3) Kavali Canal Khariff wet 25,000 2.881 18,000 2.166 Rabi I.D. 50,000 5.418 9,200 0.996 (4) North Feeder Channel Khariff wet 23,000 2.650 13,200 1.521 Rabi I.D. 20,000 2.169 4,000 0.434 (5) South Feeder Channel Khaiiff wet 16,000 1.814 5,100 0.588 Rabi I.D. 25,000 2.713 2,100 0.228 (6) Total Khariff wet 2,56,000 29.754 3,04,100 33.911 Rabi wet 19,000 3.702 19,000 3.702 Rabi I. D. 1,39,600 15.072 15,300 1.658 4,14,000 48.528 3,38,400 39.271
18. The ayacut developed till now, far exceeded the ayacut contemplated as per the project report except the ayacut under canal system. Accordingly, the demand for water available for irrigation purposes, which was 48.528 TMC for both Khariff wet, Rabi wet as well as Rabi ID exceed, and if water for the entire developed ayacut, both for Khariff and Rabi seasons is to be supplied, the demand for water stood at 39.271 TMC.
19. The learned senior Counsel for the petitioners made a passionate plea to this Court to save the farmers of Pennar Delta from alleged starvation by ordering release of water from Somasila reservoir for the purpose of second Rabi crop. The submission of the learned senior Counsel is that the decision of the respondents not to release water for Rabi crop 1999-2000 is not a policy decision. In any view of the matter, even if it is taken to be a policy decision, the same cannot be arbitrary in the teeth of the determined rights and fundamental rights when Somasila project itself was conceived and built for the benefit of ayacutdars of Pennar Delta. When there is water available, it is unreasonable for the authorities not to release water. Such a decision is capricious and arbitrary.
20. The learned Additional Advocate-General, who appeared for the respondents submitted that there is no arbitrariness in the decision taken by the first respondent not to release the water for the second Rabi crop during this year. The decision making process did not suffer from the vice of arbitrariness, and the decision - is not arbitrary.
21. In any event, the learned Additional Advocate-General would submit that the issue of release of water from Somasila Project for Rabi second crop under Pennar Delta is not justiciable as the question involves an element of administrative expertise and experience in the field of irrigation and water resources management, which the Court for want of manageable standards would not be inclined to review such decisions. It is proper that we should notice the rival contentions in more detail.
22. The petitioners submit that as on 14-3-2000, the net quantity of water available for second crop in Somasila reservoir as well as Sangam Delta tanks is 13.75 TMC, and applying the thumb rule that 1 TMC of water can irrigate 10,000 acres of wet crop, if the respondents release 13.75 TMC, an extent of 1,37,500 acres can be irrigated in the second Rabi crop season. While arriving at these figures, the petitioners say that transmission and evaporation losses are at 2.75 TMC must be taken into consideration, but the petitioners ignored the demands standing Khariff crop and other demands, which the respondents contemplate. We will advert to this a little later. Before the learned single Judge petitioners provided details of water available under Somasila Project as on 2-4-2000.
A. Water available in Somasila Reservoir in TMC As on 2-4-2000 10.853 Add anticipated inflows 0.160 Total 10.995 Or say 11.000 B. Demand as on 2-4-2000 (1) Demand as on Somasila Project for the standing Khariff crop Nil
(i) North Feeder Channel Nil
(ii) Kavali Canal Nil
(iii) South feeder Canal Nil (2) Demand for balance Khariff under Pennar Delta System, Kanupur Canal As open Head Channel of Pennar river Nil (3) Drinking water to Nellore town 1.00 (4) Evaporation losses in Somasila Reservoir 0.70 (5) Dead storage 0.50 2.20
23. The respondents provided the details of water available and the details of water required to meet the demands as on 29-3-2000. Before we deal with the details of water available as on 24-4-2000 as submitted by the learned Additional Advocate-General based on the report of the Committee of Engineers, we may again notice the submission of the learned senior Counsel for the petitioners that the details submitted by the respondents as to the quantity of water as on 29-3-2000 for the purpose of availability (and non-availability) are unreliable on the ground that the same are divorced from the ground realities and ignores the actual quantity of water available. The learned senior Counsel seriously disputes the figures submitted by the respondents.
24. Indeed, the minutes of the Somasila Irrigation Committee held on 30-3-200P critically examined the storages available as on 29-3-2000 and arrived the figures of storage and demands of Somalia Project as on 29-3-2000 as indicated above. The Somasila Irrigation Committee noticed the water particulars as on 29-3-2000 as in the Delta Tanks and Reservoirs under the Somasila Project and arrived at the total net storage available at 1.84 TMC in various tanks and reservoirs after providing for dead storage and evaporation losses at 1.31 TMC. However, the irrigation committee did not consider the present storage capacity of 3.15 TMC in the Delta Tanks and reservoirs for the purpose of release of water for second Rabi Crop presumably because project did not contemplate wet irrigation for second Rabi crop under Delta tanks and reservoirs. The learned senior Counsel submits that providing for the demands under the heads like seedbeds, drinking water needs of Nellore, Kavali and other villages under the Command of Somasila and for evaporation losses in the Reservoir are far in excess of the required demands and arbitrary and that those demands were arrived at in an arbitrary and unreasonable manner. According to the learned senior Counsel, the Somasila Irrigation Committee ought to have provided only 2 TMC towards seedbeds, 2 TMC towards drinking water needs and 1 TMC for evaporation losses in the reservoir and ought to have kept the required demands at 6.25 TMC instead of 9.05 TMC in Somasila Project (Reservoir). Hence considering 3.15 TMC of the stored water in Delta tanks and Reservoir, the total available water is more than 13 TMC in both the reservoir and tanks. It is the submission of the learned Counsel that the respondents should be directed to release about 5-6 TMC of water.
25. Alternatively, it is submitted that when the Ayacutdars in Pennar Delta as well the canal system are facing misery, penury and starvation due to 'khariff crop failure' due to untimely rains in February, 2000, there is no rational whatsoever in sticking to the unscientific decision to maintain the storage at MDDL (dead storage) at 7.5 TMC in the reservoir and other dead storage in the tanks and reservoirs. The learned senior Counsel passionately attempted to make out a case of 'arbitrariness and irrationality' on the part of the respondents alleging that any decision in a matter like this, which does not take in its fold the contemporaneous factors should be held as arbitrary and irrational. According to the learned Counsel, it is always within the power of this Court under Article 226 of the Constitution while exercising the power of judicial review to take a different view from the view taken by the Government having regard to the right of the ayacutdars to 'life' under Article 21 of the Constitution. In a nutshell, the learned senior Counsel would contend that this Court should ignore the 'demands' as projected by the respondents, arrive at the total quantity of water at 14.34 TMC (11.19 + 3.15 in reservoirs and tanks respectively) and should order release of about 5-6 TMC of water leaving the other quantity of water towards dead storage and other demands. The learned senior Counsel also submits that as the Somasila Irrigation Committee recommended to release water for seedbeds of Khariff crop after reservoir receives appreciable fresh inflows, taking the said demand into consideration is not warranted and is unreasonable.
26. The learned senior Counsel has placed reliance on the counter-affidavit filed by the first respondent and the minutes of the meeting of the Somasila Irrigation Committee held on 30-3-2000. Reliance on certain other documents was also placed to show that there are number of instances in the past where the Government ordered release of water ignoring the minimum dead storage at 7.5 TMC and the Government Orders in G.O. Ms. No.517 Irrigation and CAD (Projects Wing TGP.I) Department), dated 5-7-1999 whereunder the Government ordered release of 1.6 TMC of water from Somasila Reservoir for the standing crop in Rabi 1999 under Pennar Delta. A pointed reference was made by the learned Counsel to the letter addressed by the third respondent to the 2nd respondent in support of the submission that in a case of contingency resulting from compelling factors like "to save the standing Rabi crop", it is always permissible to draw water from the storage available below the MDDL.
27. The learned Additional Advocate-General in reply submits that the Somasila Irrigation Committee was constituted in 1990 by G.O. Ms. No.99 dated 8-2-1990. The said Committee, in its meeting held on 23-1-1996, examined various aspects and recommended to maintain minimum storage of 7.5 TMC at MDDL, that such a policy decision was taken by the Government with the demands to be met from the storage available arrived at by the Somasila Project Committee, having regard to the various scientific data, that when the committee consisting of Chief Engineers who are experts in 'Irrigation system management' have recommended and the decision not to release water is based on the experts' opinion, this Court may not.be inclined to undertake a 'nice balancing exercise' and record a opinion contrary to the opinion of the experts. According to learned Additional Advocate-General, such issues are not justiciable. The learned Additional Advocate-General also submits that from 1996 onwards, the dead storage was never allowed to go below the required MDDL at 5.5 TMC and places reliance on the report dated 24-4-2000 of the engineers submitted to this Court on 26-4-2000. The learned Additional Advocate-General also submitted that the letter dated 2-7-1999 addressed by the second respondent to the third respondent does not in any way support the contention of the learned Counsel for the petitioners. In any event, when basing on such ground realities and other irrigation parameters finding is recorded by the experts, the Court should accept such finding, especially when a policy decision is taken to maintain the MDDL at 7.5 TMC. The question whether the required demands are to be met from the storage available, whether the demands are determined properly or not and whether this Court' is competent to take a different opinion than the opinion taken by the experts and the Government will be considered while we take up the second point for consideration.
28. The pleadings, the various reports dealing with the subject and rival contentions, raise the following points for consideration in this writ appeal:
(A) Whether it is within its scope to judicially review a decision in the realm of 'irrigation management systems' administered by the respondents? and whether the issue raised in the present case is justiciable?
(B) Whether the decision taken by the first respondent not to release water from Somasila Project Irrigation system for Rabi second crop under Pennar Delta is arbitrary and irrational violating Article 14 of the Constitution of India?
(C) To what relief?
In Re point-A:
29. Henry J. Abraham, an acclaimed Constitutional Law scholar pointed out that 'judicial review comprises the power of any Court to hold unconstitutional, and hence unenforceable any law or any official action based upon a law or any other action by a public official that it deems to be in conflict with the basic law, and that the highly significant power of judicial review is possessed by every Court of record'. Henry J Abraham 'Judicial Process' IV Edition Oxford University Press, 1980. This definition of judicial review in the America context was quoted with approval by a seven Judge Constitutional Bench of the Supreme Court in L. Chandra Kumar v. The Union of India, . The Supreme Court held that subject to few modifications, the same definition is equally applicable to the concept as is understood in Indian Constitutional law.
30. The various aspects of judicial review in the Indian context can be categorised as follows:
(a) Judicial review of the constituent power of the Parliament to amend the Constitution;
(b) Judicial review of legislative action both of State Legislatures and the Parliament as well as the judicial review of delegated legislation;
(c) Judicial review of administrative action;
(d) Judicial review of quasi-judicial decisions of administrative authorities; and
(e) Judicial review of the decisions of the statutory Tribunals dealing with service cases and revenue cases.
31. In this case, we are primarily concerned with the judicial review of administrative action. Whatever be the category of judicial review, it is to be remembered that while exercising the power the Court of judicial review does not act as a supervisory body in respect of all decisions. The Court is primarily concerned with the decisions of administrative authorities brought before it by the 'aggrieved' persons. Judicial review, therefore, is the control of administrative action by the Court to see that impugned action is not within constitutional prohibition.
32. As observed by Lord Diplock in Council of Civil Service Unions v. Minister of Civil Services, (1984) 3 All ER 935, (CCU case for brevity) every judicial review is a of decision made by some authority or refusal by such an authority to make a decision. To qualify as subject for judicial review, a decision must have consequences, which affect some person other than the decision maker. It must affect such other person either by altering rights or obligations of that person which are enforceable by or against him in private law or by depriving him of some benefit or advantage which he had in the past permitted by the decision maker to enjoy, and which he can legitimately expect to be permitted to continue until it has been withdrawn. When the decision become susceptible to judicial review, it is useful to excerpt the observations of Lord Diplock in CCCU case at Pp.949-950.
"For a decision to be susceptible to judicial review the decision maker must be empowered by public law (and not merely, as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority empowered by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph. The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute; but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself, i.e., that part of the common law that is given by lawyers the label of the prerogative....."
33. It is now well accepted in the field of Administrative Law that administrative action is subject to control by judicial review under three grounds namely, illegality, irrationality and procedural impropriety. (Tata Cellular v. Union of India, .)
34. Illegality, as a ground of judicial review connotes that the decision maker must understand correctly the law that regulates the decision making power and must give effect to it. It is always a justiciable matter whether the decision maker appreciated all the relevant facts and applied the correct law. Irrationality as a ground for judicial review deals with the question whether any sensible person, who had applied mind to the question to be decided could have arrived at the same conclusion. This came to be called as 'Wednesbury unreasonableness' following the doctrine developed in Associated Picture House v. Wednesbury Corporation, (1947) 2 All ER 640. Lastly, if a decision is in violation of principles of natural justice and contrary to procedural fairness, such a decision suffers from 'procedural impropriety', which is the third ground for judicial review.
35. 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 scrutinise 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 would 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.
36. 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 scrutinise 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, AIR 1987 SC 1109, 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 least 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."
37. 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, summarised as under:
'If the scope of review is too broad, agencies are turned into little modem 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'.
38. Prof. Clive Lewis in his book, 'Judicial Remedies in Public Law' 1992 Edition At p. 294-295, summarised the present status of judicial review in English Law as under:
'The Courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction' .....Earlier cases took a robust line that the law has to be observed and the decision invalidated, whatever the administrative inconvenience caused. The Courts now-a-days recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the Court's remedial discretion may prove decisive.... They may also be influenced to the extent to which the illegality arises from the conduct of the administrative body itself, and their view of that conduct'.
39. It is pertinent to note that Prof. Bernard Schwartz's observations were quoted with approval by the Supreme Court in Tata Cellular case (supra). In Para 89 of the same decision the Court held as follows:
"Observance of judicial restraint is currently the mood in England. The judicial power of review is exercise to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the Court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action."
40. As pointed out by us under the Constitutional scheme when allegations of grave violation of fundamental rights or blatant ignorance of Directive Principles of State Policy arc brought before it, the least the Court can do is to examine whether all relevant considerations have been appreciated by the decision maker. The Court, however, is not equipped with expertise. The Court has no machinery to verify the facts presented to the Courts for the parties to the lis. Even in public law, the rival contestants seldom agree, to the jurisdictional facts. In such circumstances, there are cases, which present complexities. What are the tests to be applied in such cases?
41. In Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141, the celebrated oft-quoted illuminating passage from the opinion of Lord Brightman is as under:
"I turn secondly to the proper purpose of the remedy of judicial review, what it is and what it is not. In my opinion, the law was correctly stated in the speech of Lord Evershed (1963) 2 All ER 66 at 91, (1964) AC 40 at 96. His was a dissenting judgment but the dissent was not concerned with this point. Lord Evershed referred to - 'a danger of usurpation of power on the part of the Courts...... under the pretext of having regard to the principles of natural justice..... I do observe again that it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached, and particularly in such a case as the present the need for giving to the party dismissed an opportunity for putting his case'. Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the Court is observed, the Court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
42. In State of U.P. v. Dharmander Prasad Singh, , the Hon'ble Supreme Court quoted Lord Hailshan and Lord Brightman in Evan 's case (supra), with approval and held as under:
"When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors."
43. We may now deal with the question of justiciability. In our judgment dated 18-4-2000 in WA Nos.1468 and 1528 of 1999 (unreported) while referring to Judicial Remedies in Public Law by Clive Lewis, CCSU case (supra), S.R. Bommai v. Union of India, , we observed as under:
"It is not easy to precisely give the meaning of justiciability. Broadly speaking, an issue is not justiciable if the judicial process is unsuitable for reaching decisions on such issues either because the Court lacks expertise or there are no manageable standards to consider and appreciate the evidence placed before the Court. 'Underlying the concept of justiciability is the idea that certain issues raise questions with which the judicial process is not equipped to deal."
44. Therefore, as held by us, if there are no judicially manageable standards for scrutinising the material which is the basis for the decision and the Court is not equipped to deal with the situation presented before it, such issues are not justiciable.
45. 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.
46. It is well settled that while exercising the power of judicial review under Article 226 of the Constitution, we are more concerned with the decision making process than the decision itself. In doing so, it is often argued by the defender of the impugned decision that this Court is not competent to exercise its power when there are serious disputed questions of facts, when the decision of the Tribunal or the fact finding body or the arbitrator is given finality by the statute which governs a given situation or which by nature of the activity the decision maker's opinion on facts is final. But while examining and scrutinising the decision making process it becomes inevitable also to appreciate the facts of a given case as otherwise, in our considered opinion, the decision cannot be tested under the grounds of illegality, irrationality or impropriety. How far the Court of judicial review can reappreciate the findings of fact depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-neigh impossible for this Court to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to the prima facie conclusion or plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the Court with special reference to a given case. This position is well settled in Indian Administrative Law.
47. Dealing with the parameters of doctrine of 'irrationality' the Hon'ble Supreme Court in Tata Cellular case (supra), laid down as under:
"It is open to the Court to review the decision maker's evaluation of facts. The Court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld."
48. Therefore, to a limited extent of scrutinising the decision making process, it is always open to the Court to review the evaluation of facts by the decision maker.
49. The objection raised by the State and accepted by the learned single Judge is that the decision taken is a policy decision and, therefore, the enquiry by the Court is not called for because the policy does not violate any constitutional mandate or statutory provision or the same is not tainted with mala fides. It is settled that generally the Court does not lightly interfere with the policy decision taken by the State in discharge of their 'executive function'. The wisdom of the legislative policy' may not be open to judicial review, but when the wisdom takes the concrete form of law, the same must stand the test of being in tune with the fundamental rights. If it trenches upon any of the fundamental rights, it is void as ordained by Article 13 of the Constitution (See A.L Kalra v. The Project and Equipment Corporation of India Ltd., ). In Srilekha Vidyarthi v. State of UP, , dealing with the challenge to the policy decision taken by the Government, the Hon'ble Supreme Court ruled thus:
"It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of Governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. (See Ramana Dayaram Shetty v. The International Airport Authority of India, and Kasluri Lal Lakshmi Reddy v. State of J&K, . In Col A.S. Sangwan v. Union of India, , while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. "
50. In State of Punjab v. Ram Lubhaya Bagga, , dealing with scope of review of Government policy, the Supreme Court held as follows:
"So far as questioning the validity of Governmental policy is concerned in our view it is not normally within the domain of any Court, to weigh the pros and cons of the policy or to scrutinise it and test the degree of the beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violatrve of any constitutional statutory or any other provisions of law. When Government forms its policy, it is based on number of circumstances on facts, law, including constraints based on its resources. It is dangerous if Court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints."
51. To the same effect is the decision of the Supreme Court in M.P. Oil Corporation v. State of M.P., . In T. Gopalan v. MO/, 1996 (1) ALD 1122, this Court has held that the Court can interfere with a policy decision if it is irrational, illegal and unreasonable.
52. In this case, the decision taken by the Somasila Irrigation Committee in 1996 and accepted by Government to maintain the dead storage (MDDL) at 7.57 or 7.50 TMC is a policy decision. The Government has now taken a decision to accept the recommendations of the committee-dated 30-3-2000 that the water available cannot be released having regard to the various demands to be met from the reservoir. As it is not seriously disputed by the learned Counsel for the petitioners that the decision taken by the Government to earmark the water for dead storage and demands to be met, is a policy decision, we need not further examine the issue. The petitioners as well as the respondents proceeded on the premise that the decision taken by the Government in 1996 to maintain MDDL at 7.57 or 7.50 TMC or the decision taken on 30-3-2000 not to release water for the second Rabi crop of 1999-2000 is a policy decision. Therefore, the question that requires examination is whether the policy decision is arbitrary. This question we will deal with while we consider the second point for consideration. In this context, we may refer to the judgment of the Division Bench dated 16-4-1999 in WA No.590 of 1999 (unreported) to which one of us (the Hon'ble the Chief Justice) is a member. Dealing with the case of release of water in the jurisdiction of the third respondent herein, the Division bench held as under:
"In our considered view, the appellants have got no legal right to compel the respondent-State to supply water or to procure extra water and supply the same to any zone, which is only a policy decision. No mandamus or injunction can be issued restraining the State from framing a policy or releasing a benefit to a particular locality.... The State is at liberty to effect modification in the mode of supply, channel of supply, manner of supply and other working conditions of supply. The appellants right is only limited to the extent of quantity of water to be supplied as stipulated in the undertaking, which the State reiterates even before us that requisite water as stipulated in the undertaking would be supplied....."
53. We, therefore, hold that the decision taken by the Somasila Irrigation Committee in 1996 to maintain dead storage (MDDL) at 7.5 TMC in Somasila Reservoir is a policy decision, which cannot be held to be unconstitutional. We also hold that the issue whether the dead storage should be maintained at 7.5 TMC and whether water can be released by maintaining the dead storage below the required level, are matters, which are not justiciable. Further, when the decision was taken not to release the water for Rabi second crop, the respondents have taken all the relevant facts and factors into consideration, and the decision-making process does not call for any judicial review.
54. Further the 'reviewability', of discretionary power should be dependent upon the subject matter thereof, and not whether its source was statute or prerogative, and certain exercises of power by the very nature of subject matter might be less justiciable in certain situations (see CCCU's case). It should also be noted that if a decision is a result of whim and fancy of an executive, it is always open to this Court to subject the decision to curial evaluation even if ordinarily such a decision is not justiciable. Point A is answered accordingly.
In Re Point-B:
55. The main attack by the learned senior Counsel appearing for the petitioners is that the decision taken by the respondents is wholly arbitrary, and therefore, violative of Articles 14 and 21 of the Constitution of India. It is axiomatic that any arbitrary decision would violate equality clause in Article 14, and therefore, by a necessary corollary, offends Article 14 of the Constitution of India. In substantiation of this submission, the learned senior Counsel disputes the provision made by the District Advisory Board as well as the Somasila Irrigation Committee for meeting the various demands. The consideration of Point-B, therefore, involves superficial examination of facts to see whether there is any arbitrariness as submitted by the learned senior Counsel. The second aspect is the test to be applied by this Court when the facts presented by the petitioners and the respondents diabolically contradict each other. Which of the evidence in support of the facts presented, should be accepted by the Court while testing the decision on the touchstone of equality clause in Article 14 of the Constitution of India has to be considered. Before dealing with this aspect, it is apposite to briefly examine the legal concept of arbitrariness.
56. The three grounds on which judicial review is sought are illegality, irrationality and procedural impropriety. Arbitrariness as a ground of attack in an application for judicial review is basically a species of the broader ground of 'irrationality', which is now well accepted as 'Wednesbury unreasonableness'. This is no more res integra as we presently examine. A decision not governed by rules is arbitrary, despotic and capricious. If something is done without reason, it is capricious. This lexicographic definition of arbitrariness may not furnish a comprehensive meaning of arbitrariness as used in the field of Constitutional Law and Administrative Law. The expression "arbitrary, arbitrariness and arbitrary and capricious" are defined in Words and Phrases, Permanent Edition Vol.3A, West Publishing Company (1995-96 Replacement Edition), in an elaborate manner. Some of the relevant definitions are as under:
The words "arbitrary" and "capricious" when used in a legal sense in determining that decision of administrative agency was arbitrary and capricious are to be distinguished from the same words used in a popular sense, where they have an opprobrious connotation; the Court uses them in a legal sense to indicate that the findings are without rational basis or that the evidence to support the findings is non-existent or without probative value in either direction.
"Arbitrary" means in an "arbitrary" manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in nature of things, non-rational, not done or acting according to reason or judgment, depending upon will alone, absolutely in power, capriciously, tyrannical, despotic and without fair, solid and substantial cause; that is, without cause based upon the law or not governed by any fixed rules or standard.
"Arbitrary and capricious" act is willful and unreasonable action, without consideration and in disregard of facts or circumstances and it is one lacking a standard or norm; words "arbitrary" and "capricious" are used synonymously and are frequently combined into a single term "arbitrary and capricious".
"Arbitrary and capricious" action on part of administrative agency is willful and unreasoning action, without consideration and in disregard of facts or circumstances and when there is room for two opinions, action is not arbitrary or capricious when exercised honestly and upon due consideration even though it may be believed that an erroneous conclusion has been reached.
57. Indeed, there are a very few authorities which attempted to define arbitrariness for the purpose of Administrative Law. For our purpose we may refer to three judgments of the Supreme Court, which in our respectful opinion, deal with the concept of arbitrariness. In S.G. Jaisinghani v. Union of India, , the Supreme Court indicated the test of arbitrariness as follows:
'In a system governed by rule of law, discretion, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rule and in general, such decisions should be predictable and the citizen should know where he is. If a decision taken without any principle or without any rule it is unpredictable and such decision is the antithesis of a decision taken in accordance with rule of law.'
58. In Shrilekha Vidyarthi case (supra), the Supreme Court held that non-arbitrariness is fair play in action, and that in case of arbitrariness the defect of irrationality is obvious and an act unfounded by reason is arbitrary, and dealing with the meaning of arbitrariness the Court laid down as follows:
'The meaning and true import of arbitrariness is more easily visualised than precisely stated or defined. The question, whether an impugned act is arbitrary or not is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable may itself attract the vice of arbitrariness. Every state action must be informed by reason and it follows that an act uninformed by reason is arbitrary.'
59. In Mahesh Chandra v. Regional Manager, , U.P. Financial Corporation, the Supreme Court, in the context of interpreting Section 29 of the State Financial Corporations Act, 1951, held that every arbitrary decision is unreasonable. It is useful to excerpt the following passage from the said decision:
"The public functionaries should be duty conscious rather than power charged. Its actions and decisions which touch the common man have to be tested on the touchstone of fairness and justice. That which is not fair and just is unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. It does not become bona fide and in good faith merely because no personal gain or benefit to the person exercising discretion should be established. An action is mala fide if it is contrary to the purpose of which it was authorised to be exercised. Dishonesty in discharge of duty vitiates the action without anything more. An action is bad without proof, of motive of dishonesty, if the authority is found to have acted contrary to reason."
60. Therefore, it may be taken as well settled that arbitrariness as a ground of judicial review is primarily concerned with the 'rationality and reasonableness' of the decision. Whether a decision is arbitrary or not, has to be answered on the facts and circumstances of a case. A decision without any discernible principle which fails to satisfy the test of reasonableness by logic is unreasonable and every unreasonable decision taken on the whims and fancies of the authorities, is arbitrary.
61. As held by the Supreme Court, whether a decision is arbitrary or not, has to be decided on the facts and circumstances of a case. In this case, the learned senior Counsel appearing for the petitioners submits that there is water in the Somasila reservoir to an extent of 14.00 TMC, and therefore, having regard to the failure of khariff crop, the decision not to release water on the ground that the dead storage has to be maintained at 7.5 TMC level, and that provision has to be made for meeting various demands, is arbitrary and unreasonable. We may now examine this question.
62. Before examining this question, we may have to advert to the legal position as to the extent of Court's intervention when the panics are at loggerheads as to the existence of facts as well as the inferences to be drawn. On one hand, Sri Ramachandra Rao, learned senior Counsel for the petitioners disputed the various statistics presented before us by the learned Additional Advocate-General, and on the other hand, alternatively submitted that even if the statistics presented by the learned Additional Advocate-General are treated to be correct, still the decision not to release water for the Rabi second crop is arbitrary.
63. While dealing with the legal position of justiciability under Point-A, we have indicated that the question of justiciability, and the question of finding of fact, are two broad limitations among others, while the Court exercises the power of judicial review. We have already dealt with the question of justiciability. One of the important limitations while exercising the power of judicial review is the question of finding of facts, recorded by the competent authority. It is too well settled that when the duty of finding the facts in an 'administrative exercise' leading to a decision, the authority/administrator, entrusted with collection, collation and interpretation of facts should be given due respect and such finding should be treated as final. If the finding of facts are perverse, or if the administrator ignores the 'relevancy' and decides on irrelevancy, such a decision is treated as a grave error, which can be corrected in judicial review.
64. Bernard Schwartz in his 'Administrative Law' (supra), after referring to various decisions rendered by the State Supreme Court in US, deduces the following legal position:
'Where a question of law is at issue, the Court determines the rightness of the agency answer on its own independent judgment. If the agency answer does not square with that which the Court considers the right one, its finding of law should not be upheld. Where a question of fact is at issue, the Court does not weigh the quality or quantity of the evidence for sufficiency; the Court determines only the reasonableness of the agency answer. If the agency answer is reasonable, even though it is not 'ideal or even perhaps, correct' i.e., not necessarily the one that the Court would have given had it sat as the trier of fact - the agency finding of fact should be upheld.'
65. In Evan's case (supra), Lord Hailsham of St. Marylebone Lord Chancellor, in his concurring speech emphasised the law as under:
".....The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court."
66. In Puhlhofer v. Hillingdon London Borough Council, (1986) AC 484 (see the speech of Lord Brightman), the House of Lords held as under :
"Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review...... The ground upon which the Courts will review the exercise of an administrative discretion is abuse of power - e.g., bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity. Where the existence or non-existence of fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
67. In Regina v. Panel on Take-overs and Mergers, Exparte Datafin PLC, (1987) QB 815, Sir John Donaldson, the Hon'ble Master of Rolls of the Court of Appeal, reiterated the scope of judicial review as under:
"There was some failure on the part of the applicants to appreciate, or atleast to act in recognition of the fact, that an application for judicial review is not an appeal. The panel and not the Court is the body charged with the duty of evaluating the evidence and finding the facts. The role of the Court is wholly different. It is, in an appropriate case, to review the decision of the panel and to consider whether there has been 'illegality', i.e., whether the panel has misdirected itself in law; 'irrationality', i.e., whether the panel's decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it; or 'procedural impropriety', i.e., a departure by the panel from any procedural rules governing its conduct or a failure to observe the basic rules of natural justice, which is probably better described as 'fundamental unfairness', since justice in nature is conspicuous by its absence."
68. In Universal Camera Corporation v. National Labour Relations Board, (1950) 340 US 474 = 95 Law Ed 456, Mr. Justice Frankfurter while observing that the reviewing Courts must be influenced by a feeling that they are not to abdicate judicial function, held as follows :
"Our power to review the correctness of application of the present standard ought seldom to be called into action. Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied."
69. Mr. Justice Frankfurter in the same decision also held that 'if the record placed before the Court leads to a conclusion that the decision of the fact finding body is not based on substantial evidence, the Court of judicial review can even record a finding different from the one recorded by the fact finding body. This power is not pressed into service as a matter of course, and it is only used sparingly and in rare cases'.
70. In India, the position is the same. It is well settled that when taking a decision an administrator, depends on evaluation of facts, and applies the law to the facts. The decision-maker's choice and the finding recorded by such authority shall be treated as final unless it is grossly perverse and irrational. Further, the Courts in India have held that after appreciation of the facts, if there is a second view possible as per the Courts consideration, still the Courts cannot interfere with the decision on the ground that the conclusion reached by the decision-maker is not correct 'in the eyes of the Court'. Even if there are two views possible, the decision-maker's finding on facts is treated as conclusive. If authority be required for these propositions which are so well established, we may refer to the dicta laid down by a Constitution Bench of the Supreme Court in Syed Yakub v. Radhakrishnan, , which is as follows :
"There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned findings. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal and the said points cannot be agitated before a writ Court....."
71. The decisions of the Hon'ble Supreme Court in State of Maharashtra v. Madhukar Narayan Mardikar, , Union of India v. Upendar Singh, and Chaturvedi v. Union of India, , also lay down that ordinarily reappreciation of evidence is not within the scope of judicial review, unless the decision is perverse.
72. Keeping in view the principles discussed thus far, we may now examine the submissions made by the learned senior Counsel appearing on behalf of the petitioners. For this purpose, we may take the statistics submitted by the Committee of Engineers to this Court on 26-4-2000, which gives the water level as well as the requirements for the demands as on 24-4-2000. The report gives reasons for excess utilisation of water in Pennar Delta for Rabi second crop and says that the ayacut for irrigation dry crops under various canals -- Kavali Canal, North Feeder Channel and South Feeder Channel - has not been developed completely, and therefore, water was released from Somasila Reservoir to Rabi second crop for more acreage than contemplated 19,000 acres. As the distribution system under the canals was not in existence, no water was being supplied for Rabi crop to the wet ayacut under the canals, and the entire water was diverted and supplied to Pennar Delta in excess of 19,000 acres. This explains as to why in yester years, the respondent supplied water in excess of 19,000 acres for Rabi second crop. There is, therefore, no substance in the contention of the learned senior Counsel appearing for the petitioners that when water was released in the past in excess of 19,000 acres, the same quantity of water should also be released for Rabi second crop.
73. Another aspect of the matter is that the report submitted to this Court also says that under the Inter-State Agreement, 5.00 TMC of water each have to be supplied by the States of Maharashtra, Karnataka and Andhra Pradesh to Chennai city from out of the Krishna waters. This water is required to be supplied from Srisailam Reservoir to Chennai through 'Somasila Reservoir', the 'Somasila - Kandaleru Flood Flow Canal', the 'Kandaleru Reservoir' and the 'KP Canal'. The water to be supplied to Chennai city through Somasila Reservoir is water from Krishna river and not from Pennar river. The Pennar river water is being utilised only to meet the irrigation and drinking water requirements of all the ayacutdars under the Somasila Project and for the people living in Nellore, Kavali towns and other adjoining villages. As per the report, the water available in the somasila Reservoir for the Rabi second crop of 1999 (April to August, 1999) is 11.03 TMC. The water available in the tanks is 3.50 TMC. The water in the Reservoir and canals (11.03 + 3.50 - 14.53 TMC), was sufficient to irrigate 1,23,505 acres. However, the ryots transplanted 1,58,305 acres, which resulted in depletion of water level in the Somasila Reservoir below MDDL to an extent of 2.00 TMC, and therefore, the dead storage of 5.502 TMC was maintained. The details of the water available in the Somasila Reservoir and the demands for the water under various categories as on 24-4-2000 is as under:
Storage Levels (1) Storage of Somasila Reservoir as on 24-4-2000 10.222 TMC (2) Anticipated Inflows Nil (3) Storage at MDDL 7.50 TMC (4) Net live storage available (10.22-7.50) 2.72 TMC Demands under various categories Demand at MDDL of 7.50 TMC Demand at Reservoir Level of 2 TMC For Rabi in S.P. Canals 1.10 1.10 For Seedbeds 2.50 2.50 For drinking water 3.00 3.00 For Evaporation losses 1.60 1.60 Dead Storage 7.50 2.00 Total 15.70 10.20 Present storage in the Reservoir As on 24-4-2000 :
10.22 Net Balance :
10.22 - 15.70 10.22 - 10.20 =
- 4.48 TMC = + 0.02 TMC The details of water particulars as on 24-4-2000 in Delta Tands and Reservoirs is an under :
S.No. Name of Source Present Storage capacity Dead Storage & Evaporation in TMC Net water available in TMC (1) Kanigir Reservoir 1.012 0.300 0.712 (2) Duvvur Tank 0.100 0.100 0.000 (3) Alluru & Ramanna tanks 0.230 0.200 0.030 (4) Nellore tank 0.195 0.210 (5) Survepalli Res.
1.100 0.400 0.700 (6) Subsidiary Tanks 0.100 0.100 Total 2.737 1.310 1.442
74. The submission made by the learned senior Counsel appearing for the petitioners is that as on 29-3-2000, the water levels, allegedly ascertained personally by the petitioners from the Engineers Body (filed at Page 147 of the paper book) is 17.70 TMC, including 11.698 TMC of water in Somasila Reservoir, and 6.05 TMC of water in various reservoirs, (At page 148 of the paper book, petitioners filed statement showing "Water position as on 2-4-2000 at 12.00 noon". According to this water available in Reservoir and tanks is allegedly 15.685 TMC (10.835 + 4.85 TMC)}. Therefore, the learned senior Counsel appearing for the petitioners submits that the statistics furnished by the Committee of Engineers are not correct. We must record that the learned senior Counsel knowing the limitations well, only made a feeble attempt on this point. His further submission; an alternative submission, is that if the MDDL is reduced below 7.50 or 7.5 TMC, and water is made available for the demands in a reasonable manner, still the respondents can supply about 5.00 to 6.00 TMC of water for Rabi second crop. He submits that provision of 2.5 TMC water for seedbeds is not warranted, that provision of 3.00 TMC of water for drinking water is in excess of requirements, and that provision of 1.60 TMC towards evaporation losses is unscientific. We shall examine these submissions one by one.
75. The submission that 7.5 TMC storage at MDDL is not required, is not adjudicable and justiciable issue. However, we may passingly notice that in Para 16 of the counter-affidavit, filed by respondents 2 to 5, the reason compelling the maintenance of dead storage at MDDL of 7.5 TMC is given as under:
"In any event, as against the storage in the Reservoir of 12.640 TMC as on 12-3-2000, if the requirement of 10.50 TMC (as referred to supra) is deducted, the balance water available would only be 2.14 TMC, which is insufficient even to meet the requirement of the Localised Ayacut of 19,000 acres for the second crop. It is relevant to submit that pursuant to plugging of the 19th Block River Sluice in the year 1990, the dead storage below the SILL level (bottom level) of the existing River Sluices of Somasila Reservoir is of 2 TMC which cannot be drawn at all. It is therefore clear that even if the MDDL of 7.5 TMC is not maintained, there is hardly any water available in the Somasila Reservoir, for supply to Pennar Delta for the Rabi crop."
76. The petitioners filed rejoinder to the counter-affidavit of the respondents 2 to 5. Except saying that the figures mentioned in para 16 of the counter-affidavit are concocted, the crucial averment justifying the maintenance of dead storage of MDDL of 7.5 TMC, has not been denied. Therefore, it is very clear that if the MDDL of 7.5 TMC is not maintained, the dead storage would go below the SILL (bottom) level of the existing river sluice rendering huge quantity of 2.00 TMC of water unusable. The reason is rational and any reasonable authority would come to the same conclusion that the dead storage of 7.5 TMC requires to be maintained at all costs. Further, the quantity of water in the Reservoir is disputed. We have already referred to various authorities - both text books and decided cases, and concluded that when it is for the administrator/decision-maker to record findings as to the existence or non-existence of facts, basing on the judgement and discretion of such decision-maker, and the facts involved, taking into consideration the broad aspects of the entire issue, including the imponderables, unforceable and unpredictable monsoon conditions, it is the duty of the Court to upheld the finding of fact by the public body/decision-maker. It is impermissible for the Court to weigh the quality or quantity of the evidence for the Court only determines the reasonableness of the finding. Therefore, we reject the contention of the learned senior Counsel on the first aspect of the matter. When the respondents have arrived at the storage levels at 10.22 TMC as on 24-4-2000 in the Somasila Reservoir, and the availability of water at 3.15 TMC (including the dead storage and evaporation) in Delta Tanks and Reservoirs, it is impermissible for this Court to countenance the submission of the learned senior Counsel and record a different finding.
77. In the affidavit, accompanying the writ petition, while giving the particulars of water available in Somasila Reservoir as on 14-3-2000, the petitioners have assumed that the transmission and evaporation losses would be at 2.75 TMC when the total water available is 13.00 TMC. The District Advisory Board which met on 12-3-2000 assumed the evaporation losses at 2.00 TMC when the total water available in the reservoir as on that date was 12.64 TMC. The counter-affidavit, filed by respondents 2 to 5 mentions that the evaporation losses were determined in accordance with the formula prescribed in the Irrigation Manual by Ellis, which is stated to be uniformly applicable throughout the country. When the Somasila Irrigation Committee met on 30-3-2000, the evaporation losses were assumed at 1.80TMC when the storage of Somasila Reservoir as on 29-3-2000- was at 11.19TMC. In the report submitted by the Committee of Engineers, the water level in the Somasila Reservoir was 10.22 TMC, and the demand for the purpose of evaporation was shown as 1.60 TMC in the Reservoir, and 1.310 TMC (both dead storage and evaporation) in Delta, Tanks and Reservoirs when the total water available in the Tanks and Reservoirs is at 2.737 TMC. The learned senior Counsel submits that even 1.60 TMC towards evaporation losses and 1.310 TMC towards dead storage and evaporation in the Reservoir and Tanks respectively is an arbitrary figure. We are afraid, we cannot agree with this. We have already examined these figures in juxtaposition with the affidavit filed by the petitioners themselves, who admit that when the water in the reservoir is 13.00 TMC, the evaporation losses would be 2.75 TMC. This clearly shows that there cannot be any interference with the findings of the Committee of Engineers. In any event, as we have already mentioned that these are the matters for experts, we cannot interfere by taking to impermissible course of "nice balancing of relevant considerations."
78. Nextly, it is contended that provision of 2.50 TMC of water for meeting the demands towards seedbeds for khariff crop of 2000 is unwarranted and unreasonable. To substantiate this, the learned senior Counsel has repeatedly invited our attention to the recommendations made by the Somasila Irrigation Committee on 30-3-2000. The Somasila Irrigation Committee inter alia recommended "to release water to seedbeds for ensuing khariff only after the reservoir starts receiving appreciable inflows in order to see that the water in the Reservoir is not depleted much below MDDL." In view of the reasons explained supra, according to the learned senior Counsel, it clinchingly shows that water need not be stored for the purpose of seedbeds now. This, in our opinion, is a mis-conception. The recommendation only means that having regard to the danger of allowing the water depletion in the reservoir below MDDL, the water meant for seedbeds should be stored and should be released for seedbeds only after fresh inflows are received. This does not mean that water need not be stored for the present. In the case of failure or delay of onset of south-west monsoon, the fate of seedbeds for khariff can well be imagined if the water is released now without making any provision to meet such demand. We, therefore, reject the submission.
79. Another submission made by the learned senior Counsel is that provision of 3.00 TMC of water available for meeting drinking water needs of Nellore and Kavali towns and other villages under command of Somasila Project is on the higher Side. For the same reasons of justiciability, we cannot agree with this. Even otherwise, in our considered opinion, the drinking water needs of the people should take precedence over the water needs for the purpose of irrigation, and other economic activities and we cannot find fault with the decision taken by the District Advisory Board, the Somasila Irrigation Committee as well as the Committee of Engineers. Indeed, it is impermissible for a Court of judicial review to disagree with the opinion of an expert body only on the ground that it does not accord with the opinion of the individual judges. As observed in the beginning of the judgment, we are weakened by our own strength.
80. Yet another submission made by Sri. S. Ramachandra Rao, is that during yester years, the respondents themselves released water for Rabi second crop in excess of contemplated ayacut even when the dead storage went below the required MDDL.
He invited our attention to a coy of the letter dated 8-2-1989 (page 43 of the material paper book) addressed by the Executive Engineer, Nellore to 3rd respondent herein, and also the statement (page 48 of the material paper book) showing the details of second crop permitted in Pennar Delta since 1998. The first document is the letter, whereby the Executive Engineer submitted a reported to the 3rd respondent inter alia informing that on 7-2-1989 a meeting of officers from Irrigation Circle, Nellore, as welt as Telugu Ganga Project was convened, that during the meeting the Somasila Project authorities decided to release an additional 1.5 TMC of water from the reservoir for second crop under Pennar Delta, and that originally the water agreed to be released i.e., 1.5 TMC was reserved towards dead storage of 0.5 TMC and 1.0 TMC for drinking water for Nellore Town. Even in this report, the Executive Engineer recommended for releasing the water only for about 7,000 acres for Rabi second crop at the rate of 5,000 acres per TMC, but not for huge extent of about 1,00,000 acres. The report also proposed to supply water for lands under Zone VI-(Part) in the order of rotation as per the zonal system.
81. The statement showing the irrigation details during second crop gives the particulars of storage available, both in Somasila Reservoir and Delta tanks, water available for second crop etc. The details of water released from 1978 to 1994 are typed in the statement, and the details for the year 1994-95 and 1995-96 are handwritten. Be that as it may, the statement shows that till 1996, the respondents allegedly released water ranging between 2.948 TMC (1985) to 14.524 TMC (1994) for second crop. The details of water available in Somasila Reservoir from 1978 to 1987 are not available in the statement. From 1988 to 1996, the details of water available in Somasila Reservoir, the Delta tanks and the water available (released) for second crop are given. We have examined this. From 1988 to 1996 onwards, even after allegedly releasing water ranging from 3.21 TMC (1989) to 14.524 TMC (1994), still the dead storage in the Somasila Reservoir was maintained ranging between about 5.6 TMC MDDL (1989) to about 16.5 TMC (1994-95). Therefore, we are unable to agree with the submission that from 1978 to 1996, the dead storage levels at the required MDDL were ignored to facilitate transplantation during Rabi second crop.
82. The learned senior Counsel also relied on a letter dated 2-7-1989 addressed by 3rd respondent to the 2nd respondent wherein the former requested the latter to address the Government for permission to utilise the water available at Somasila Reservoir below the MDDL + 270. The other document relied on by the learned senior Counsel is an order of the Government being G.O. Rt. No.517, Irrigation C&D (Projects wing TGP-1), dated 5-7-1999, vide which the Government while accepting the report of the Chief Engineer, Telugu Ganga Project, Srikalahasthi, agreed to release 1.6 TMC of water from Somasila Reservoir "to protect the standing crop in Rabi 1999 (F-1408) under Pennar Delta." In our considered opinion, these two documents would not support the case of the petitioners. Admittedly, for Rabi second crop 1999-2000 the ayacutdars have not yet taken up transplantation, which is one difference, which goes a long way against the petitioners. When the Government issued G.O. Rt. No.517, dated 5-7-1999, it is obvious that the decision was taken to release 1.6 TMC of water as there was already standing crop in Rabi 1999, which is not the case before us. Therefore, we have to reject the submission. In fact, the details of minimum reservoir levels from 1990-99 are annexed to the report of the Committee of Engineers dated 28-4-2000, which may conveniently be reproduced below:
Yearwise Minimum Water Levels in Somasila Reservoir Year Min. water level in the Reservoir Capacity at that level Date 1990 +76.54 M/+257.09' 2.125 TMC 8-5-1990 1991 +84.46 M/+ 277.11' 1 1.341 TMC 5-6-1991 1992 82.25 M/ +289.85' 7.480 TMC 30-9-1992 1993 +75.02 M/+246.14' 1.426 TMC 21-7-1993 1994 +78.95 M/+259.03' 3.886 TMC 5-10-1994 1995 + 84.06 M/+275.80' 10.563 TMC 18-7-1995 1996 + 82.62 M/+271.07' 8.105 TMC 8-6-1996 1997 +85.59 M/+280.82' 13.504 TMC 12-8-1997 1998 +83.15 M/ +1272.82' 8.984 TMC 29-7-1998 1999 +80.58 M/ +264.38' 5.501 TMC 6-8-1999
83. A plain inference that can be drawn from the above details is that from 1994-95 onwards the MDDL was never allowed to go beyond 5.501 TMC. We have already given the details of water available in Somasila Reservoir as on 24-4-2000, as furnished by the Committee of Engineers. The same shows that after providing for the demands like seedbeds, drinking water, dead storage, evaporation etc., the water that is available would be -4.48 TMC (minus 4.4.8 TMC) when the demand at MDDL 7.50 is maintained. The water available would be +0.02 TMC (plus 0.02 TMC) if the demand is maintained at the reservoir level of 2.00 TMC. Therefore, the decision of the respondents not to release water from Somasila reservoir or the Delta tanks for Rabi second crop 1999-2000, and to close down the irrigation canals with effect from 31-3-2000 is reasonable and cannot be branded as arbitrary. We, therefore, reject all the submissions made by the learned Counsel for the petitioners on this point. We notice that no other submission is made by the learned senior Counsel for the petitioners.
84. 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 civilisations 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 sources need not be overemphasised. 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.
85. The Supreme Court of India, 'In the matter of Cauvery Water Disputes Tribunal, , reiterated the legal position enunciated by the US Supreme Court in State of Kansas v. State of Colorado, (1906) 206 US 46 = 51 Law Ed 956, in which the US Supreme Court, had in fact, approved the law declared by Mr. Justice Burch of Kansas Supreme Court while delivering the unanimous opinion of the Court in Clark v. Allaman, 71 Kan. 206 = 70 LRA 971. The relevant law, as stated by Mr. Justice Burch, and approved by the US Supreme Court in Kansas v. Colorado, is as under:
"The use of the water of a running stream for irrigation, after its primary uses for quenching thirst and other domestic requirements have been subserved, is one of the common law rights of a riparian proprietor.
"The right to flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such character that, whilst it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it, as it passes through his land; and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down.
"The right to the use of flowing water is publici juris, and common to all the riparian proprietors; it is not an absolute and exclusive right to all the water flowing past their land, so that any obstruction would give a cause of action; but it is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors, to the reasonable enjoyment of the same gift of Providence. It is, therefore, only for an abstraction and deprivation of this common benefit, or for an unreasonable and unauthorized use of it, that an action will lie."
86. 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 Js 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 21 of the Constitution. Needless to add, that right to water, which is substantial ingredient to make 'life', is itself a penumbral right to life.
In Re point C:
87. For all the above reasons, we reject the writ appeal and confirm the judgment of the learned single Judge. Writ appeal is accordingly dismissed. There shall be no order as to costs.