Andhra Pradesh High Court - Amravati
Nallamada Rythu Sangham vs Government Of A.P., Represented By Its ... on 30 September, 2019
Author: M. Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.29325 of 2010
ORDER:(Per Hon'ble Sri Justice M. Satyanarayana Murthy) This petition is filed under Article 226 of the Constitution of India by Rythu Sankshema Sangham, represented by its Executive Member - Dr. Kolla Raj Mohana Rao and 10 others, challenging the inaction on the part of the respondents in not including Ac.1,50,000-00 of land in Block Nos. 10 & 11 situated in Chilakaluripet, Yedlapadu, Pedanandipadu, Guntur District, Marturu, Parchuru Mandal, Prakasam District under Right Canal of Nagarjuna Sagar for the purpose of irrigation as arbitrary, illegal and unjust, consequently, direct the respondents to include Ac.1,50,000-00 of land in Block Nos. 10 & 11 situated in Chilakaluripet, Yedlapadu, Pedanandipadu, Guntur District, Marturu, Parchuru Madnal, Prakasam District in Nagarjuna Sagar under Right Canal by declaring G.O.Ms.No.8, Public Works Department Project Works, Projects Wing dated 06.01.1964 as null and void.
The first petitioner is a Rythu Sangham and the other petitioners are agriculturists who own and possessed various extents of land in the villages referred above. The petitioners narrated the dimensions of Nagarjuna Sagar Project, capacity of reservoirs, the lands being irrigated under the left and right canals known as Jawaharlal Canal and Lalbahadur Sastry Canal and the lands in the villages being cultivated under those canals in Andhra Pradesh and Telangana Area, besides generation of Hydro Electric Power with a 2 HACJ_&_MSM,J.
WP.No.29325 of 2010capacity of 810 mega watts of 8 units. G.O.Ms.No.8, Public Works Department Project Works, Projects Wing dated 06.01.1964 was issued for exclusion of area of Ac.3,01,000-00 in Block Nos. 10,11 & 12 of Nagarjuna Sagar Right Canal which comprised the then tobacco growing areas, anti malarial zone and the ayacut in Guntur Canal from the ayacut of right canal. The said G.O. has been issued on the recommendation of the Government of India and on the stated policy for maintaining the export trade relating to the tobacco. As part of its recommendations, irrigation is not provided to the areas where tobacco was grown as it is an unirrigated crop. Further, it was mentioned in the said G.O that tobacco export promotion council suggested to include within the ayacut such of these tobacco growers area which produce low quality tobacco and those areas which produce good and high quality tobacco might be excluded within the ayacut of Nagarjuna Sagar Right Canal. Based on the above said recommendations of Central Government as well as Tobacco Promotion Council, the C.E. Nagarjuna Sagar Canals submitted proposals before the Development Committee, Nagarjuna Sagar Control Board to exclude around Ac.3 lakh of area in Block Nos. 10,11 and 22 which were initially identified to include in the ayacut of right canal. Pursuant to the Control Board recommendation, an extent of Ac.3,76,752 in Block Nos. 10,11 and 22 might be eliminated from the Ayacut area of right canal.
The recommendations of the Nagarjuna Sagar Control Board were accepted by Government of Andhra Pradesh and accordingly an area of Ac.3,76,762-00 in Block Nos. 10,11 & 22 were ordered to be deleted from the area of irrigation under the Nagarjuna Sagar Right 3 HACJ_&_MSM,J.
WP.No.29325 of 2010Canal. G.O.Ms.No.8, Public Works Department Project Works, Projects Wing dated 06.01.1964 is reproduced as under:
"GOVERNMENT OF ANDHRA PRADESH ABSRACT Irrigation Nagarjunasagar Project Pulichintala Block inclusion of certain area in and area. The scope of irrigation under N.S. Right Canal revised orders -
issued.
Public works department: projects wing
G.O.Ms.No. 8 Dated :06-01-1964
Read the following :
1. G.O.Ms.No.51 Public works (N.Sagar) department dt.21.2.1961
2. From the chief Engineer, N.S. Canals Lr.No.13428- T7/62-15 Dated:30.09.1963 ORDER:
1. In the G.O read above orders were issued for the exclusion of an area of 3.01 Lakhs acres in block No.10,11 and 22 of the R.S. Right Canal which comprised to tobacco growing areas, anti malarial zones and the ayacut under Guntur Channel from me ayacut of the Right Canal. Subsequently the Government of India in the Ministry of Irrigation & Power emphasized that in the interests of maintaining the export trade it is essential to ensure that irrigation is not provided to the areas where tobacco is grown as an unirrigated crop. The tobacco export promotion council suggested that the inclusion within the ayacut such of these areas which produce low quality tobacco might be included within the ayacut leaving out those lands which produce good quality tobacco. Based on the above considerations, the chief engineer, N.S Canals submitted proposals and they were considered by the development committee and the N.S. control Board. The control board recommended that an extent of Ac.3,76,752 in block 10,11 and 22 might be eliminated from the ayacut area of the right canal. It also recommended that an area of Ac.11,390.33 in block No.10 and an area of Ac.53,167.76 in block No.11 might be included in the ayacut of the right canal.
2. The Government accept the recommendations of the N.S. control board and accordingly, direct that an area of 3,76,762 acres in block 10,11 and 22 as detailed in annexure I to this order be eliminated from the scope of irrigation under the N.S Right canal. The area eliminated should be made good by increasing the intensity of ayacut in the net irrigated area in the other blocks under the right canal.
3. The government also direct that the area as detailed in annexure II to this order be included in the ayacut of the right canal. In respect of the area to be included in block No.11 the Government accept the recommendation of the N.S control board and direct that the cropping pattern of 1/3 wet and 2/3 dry as envisaged in the project estimate be followed.4
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WP.No.29325 of 2010
3. The Government ratify the action of the Engineer, N.Ş. Canals in having instruction superintending engineer, N.S. canals circles, Guntur to go ahead with the work of revising the hydraulic particulars, finalization of localization etc., in anticipation of Government approval.
These orders are in orders are in super session of the orders issued G.O. Ms.No.51 public works Nagarjunasagar) department 21.02.1961.
(by order and in the name of the Governor of Andhra Pradesh) G.A NARSHIMHA RAO ADDITIONAL SECRETARY TO GOVERNMENT To, The Chief Engineer N.S. Canals Vijayapuri North Hill Colony -- 508 202 Nalgonda District True Copy For Administrator - Cum - Chief engineers N.S. Right Canal, CADA, Guntur - 4 Date :09-08-89"
It is further contended that the erstwhile State Government of Andhra Pradesh issued G.O.Ms.No.16 PW Department (PW) dated 09.01.1965. According to the G.O, Nagarjuna Sagar Project originally estimated irrigation facilities to an extent of Ac.1-80 lakh first crop wet in Krishna Delta. The G.O further reads that the aforesaid extents could not be located in Krishna Delta and hence the Nagarjuna Sagar Control Board at its meeting held on 25.08.1960 approved the following proposals. The contents of G.O.Ms.No.16 dated 09.01.1965 reads as follows:
i. that an extent of 50,000 acres (wet) be earmarked in the lower reaches of the Guntur Channel and ii. that the remaining/one lakh acres (wet) made equivalent to one lakh fifty thousand acres (both wet and dry) in the pattern of 1/3rd wet and 2/3rd dry i.e. 0.50 lakhs acres wet and 1.0 lakhs acres dry, be distributed in the several blocks under the right canal of Nagarjunasagar Project, in preparation to cultivable command area in each block.2.
7. The above proposals of the Nagarjunasagar Control Board were accordingly given effect to, and included in the revised estimate of Nagarjunasagar Project which interalia provide for the irrigation of 0.50 lakhs acres (wet) under Guntur Channel scheme, and 11.2 lakhs acres (9.7 + 1.5) with the pattern of 1/3 wet and 2/3 dry under right canals.
8. Pursuant to the resolution of the Nagarjunasagar Control Board, irrigation of 50,000 acres (wet) or Nagarjunasagar Project ayacut in the lower reaches of 5 HACJ_&_MSM,J.WP.No.29325 of 2010
the old Guntur Channel, is dependent upon the construction of the upper portion of the Guntur Channel Scheme, providing irrigational facilities to an extent of Ac.23,600. Since this scheme has not been sanctioned yet, it has become necessary to consider another alternative to feed the Ac.50,000 (wet) of Naarjunasagar Project ayacut. After re-examining the various alternatives under Guntur Channel scheme and also from the Nagarjunasagar right canal distributor system, the Chief Engineer, Nagarjunasagar canals proposes to feed the ayacut under reference through branch canal No.10 and Turlapadu major and its extension leaving out the ayacut of Ac.23,000 in the head reach of the old Guntur Channel scheme to be served under an independent medium irrigation scheme, the water for which will have to be made available from the Krishna Delta allotment.
9. The development committee of Nagarjunasagar Project at its meeting held on 24/7/1964, approved the above proposal of the Chief Engineer, Nagarjunasagar canals as the area is commendable under the right canal, as the area is the lower reaches of Guntur channel is predominantly covered by block soils, which are saline in nature the development committee of Nagarjunasagar Project suggested that the entire extent of Ac.50,000 be localized as WET leaving out the rich quality tobacco growing areas. The Nagarjunasagar Control Board at its meeting held on 15/12/1964 approved the above recommendations of the development committee of Nagarjunasagar Project.
10. The Government accepted the recommendation of Nagarjunasagar Control Board and direct the Chief Engineer, Nagarjunasagar canals. a. To tag on the extent of 50,000 acres (wet) Nagarjunasagar Project, previously proposed under Guntur Channel to branch canal No.10 of the Nagarjunasagar right canal and b. To localize the entire extent as "wet" leaving out the rich quality tobacco growing areas.
11. The Government ratify the action of the Chief Engineer, Nagarjunasagar right canals and instructed the Superintending Engineer, Nagarjunasagar canals, Guntur to go ahead with the further, works necessitated as a result of the additional ayacut of Ac.50000 (wet) tagged on to the branch canals No.10 of the Nagarjunasagar right canal."
The erstwhile Government of Andhra Pradesh issued G.O.Ms.No.399 Public Works Project Wing dated 25.10.1969 specifically accepting the recommendations of Nagarjuna Sagar Control Board which were passed on its 47th Meeting to include the remaining pocket area, after localization in the ayacut of Right and Left canal of the Nagarjuna Sagar Project. The Government further directed the Chief Engineer, Nagarjuna Sagar Canals to implement the aforesaid recommendations of the Nagarjuna Sagar Control Board.
In view of various G.Os referred supra, the lands in various villages referred above were not being irrigated and they are not growing Tobacco on account of salinity. Later, on the representation 6 HACJ_&_MSM,J.
WP.No.29325 of 2010of ryoths and others, an enquiry was ordered directing the Superintendent Engineer, NSC Circle vide letter No.1853-CE dated 30.09.1979. The Superintendent Engineer, NSC Circle who conducted detailed enquiry, recommended the Chief Engineer to provide irrigation facilities and drinking water facilities at the end of Pedanandipadu Branch Canal and further requested the Government to take decision in this regard.
Later, Sri Venkatesan, Member of Central Water Commission on the representations received from various farmers and representatives in Guntur and Prakasam Districts conducted inspection and submitted a report to the Government on 04.12.1980 and in the said report, the Central Water Commission Member recommended to include the areas in Block Nos. 10,11 & 22 which were excluded from the Nagarjuna Sagar Right Canal by issuing G.O.Ms.No.8 dated 06.01.1964. The recommendations were based on technical as well as feasibility grounds for suggesting that the excluded area under G.O.Ms.No.8 to be included within the Nagarjuna Sagar ayacut and its right canal.
The first petitioner - Nallamada Rythu Sangham sent several representations to the Government of Andhra Pradesh and conducted several agitations to include the excluded area under G.O.Ms.No.8 dated 06.01.1964 with the Nagarjuna Sagar Right Canal. The Executive Engineer, N.S.R.C, O & M Division responded by way of letter dated 13.06.2007, informed that the Chief Minister has assured for conducting survey on technical feasibility and availability of water and further informed the rythu sangham that detailed surveys are to be carried for entrusting the field work to a consultancy. But, no 7 HACJ_&_MSM,J.
WP.No.29325 of 2010action was taken till date. Therefore, exclusion of those lands from Ayacut of Nagarjuna Sagar right canal is unjust and illegal. Hence, filed the writ petition seeking the direction as stated supra.
Respondents/Government did not file any counter. During hearing, learned counsel for the petitioner Sri Sudhakar Rao Ambati reiterated the contentions urged in the petition and vehemently contended that, on account of the recommendations of the Central Government as well as Tobacco Promotion Council, the petitioners and other ryoths in the village are facing lot of problems to include their lands and as on the date, they are not growing tobacco on account of developing salinity in their lands and they are being deprived of their livelihood; such inaction on the part of the Government is nothing but depriving the petitioners to enjoy their fundamental right to life; a right guaranteed under Article 21 of the Constitution of India and requested to issue a direction, as claimed in the writ petition.
Whereas, learned Government Pleader for Irrigation and Revenue supported the Government in all respects, without raising any specific grounds, contended that G.O.Ms.No.8, Public Works Department Project Works, Projects Wing dated 06.01.1964 was passed in the year 1964, but filed this writ petition in 2010 i.e at least after lapse of 36 years, as such, there is abnormal delay and on account of delay and latches, the Court cannot exercise discretionary power of judicial review under Article 226 of the Constitution of India, which unsettles the entire irrigation allotment of water to irrigate the lands under the ayacut of two canals of Nagarjuna Sagar i.e. left and 8 HACJ_&_MSM,J.
WP.No.29325 of 2010right canals. On this ground alone, writ petition is liable to be dismissed and requested to pass appropriate orders.
It is an undisputed fact that G.O.Ms.No.8, Public Works Department Project Works, Projects Wing was issued as early as in the year 1964. Since then, the petitioners or any other ryoths did not move their little finger to make any representation for inclusion of Ac.1,50,000-00 of land in Block Nos. 10 & 11 situated in Chilakaluripet, Yedlapadu, Pedanandipadu, Guntur District, Marturu, Parchuru Madnal, Prakasam District in Nagarjuna Sagar under Right Canal. But, after more than ten years, i.e. after passing G.O., they started claiming irrigation water as they failed to grow tobacco on account of development of salinity in the land. Till then, they did not realise the importance of irrigation water for their lands and maintained silence. For the first time, they woke up from their slumber and made representation to the Government after 1980 and later, news items were published in Hindu English newspaper on 11.05.2006 and thereafter, there was some letter correspondence in the department as to conducting survey, to take decision regarding inclusion of land under the ayacut of Nagarjuna Sagar right canal. Therefore, it is clear that there is any amount of delay and latches on the part of these petitioners in approaching the Court, though the delay by itself is not a ground to deny the relief, but, such exercise cannot be undertaken by this Court, since it is based on technical feasibility to include those lands in the ayacut of right canal of Nagarjuna Sagar.
9
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WP.No.29325 of 2010Learned Government Pleader rightly contended that delay disentitles the petitioners to claim relief under Article 226 of the Constitution of India, since it is purely discretionary in nature.
It is useful to refer to the passage from City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors1, wherein this Court while dwelling upon jurisdiction Under Article 226 of the Constitution, has expressed thus:
"The Court while exercising its jurisdiction Under Article 226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the Petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors."
In this regard reference to a passage from Karnataka Power Corporation Ltd. Through its Chairman & Managing Director and Anr. v. K. Thangappan and Anr2 would be apposite:
"Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers Under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party."1
2009) 1 SCC 168 2 (2006) 4 SCC 322 10 HACJ_&_MSM,J.
WP.No.29325 of 2010After so stating, the Court after referring to the authority in State of M.P. v. Nandalal Jaiswal3 restated the principle articulated in earlier pronouncements, which is to the following effect:
"the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the Petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."
Similarly, in State of Maharashtra v. Digambar4 a three-judge bench laid down that, power of the High Court to be exercised Under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court Under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon un-blameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
In Chennai Metropolitan Water Supply and Sewerage Board and Ors. v. T.T. Murali Babu5, it was held that, the doctrine of delay 3 (1986) 4 SCC 566 4 (1995) 4 SCC 683 5 (2014) 4 SCC 108 11 HACJ_&_MSM,J.
WP.No.29325 of 2010and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances, inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant--a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time"
and second, law does not permit one to sleep and rise like a phoenix.
Delay does bring in hazard and causes injury to the lis.
In Tukaram Kana Joshi and Ors. v. Maharashtra Industrial Development Corporation & Ors6 it has been ruled that:
"Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.6
(2013) 1 SCC 353 12 HACJ_&_MSM,J.WP.No.29325 of 2010
And again:
No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of latches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of latches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the Petitioners"
Similar issue came up for consideration before the Apex Court in Londhe Prakash Bhagwan v. Dattatraya Eknath Mane and others7, wherein the Apex Court while deciding a service dispute highlighted the jurisdiction of the High Court to exercise power when the parties approached the Court at belated stage observed as follows:
"In all these cases, the aggrieved person shall have a right to approach the Tribunal. Now, the sole question which falls for our consideration is: when an aggrieved person can apply before the Court, if no limitation is prescribed in the statute for filing an appeal before the appropriate forum. We have duly considered the said question. Even if we assume that no limitation is prescribed in any statute to file an application before the court in that case, can an aggrieved person come before the court at his sweet will at any point of time ? The answer must be in the negative. If no time-limit has been prescribed in a statute to apply before the appropriate forum, in that case, he has to come before the court within a reasonable time. This Court on a number of occasions, while dealing with the matter of similar nature held that where even no limitation has been prescribed, the petition must be filed within a reasonable time. In our considered opinion, the period of 9 years and 11 months, is nothing but an inordinate delay to pursue the remedy of a person and without submitting any cogent reason therefor. The court has no power to condone the same in such case."
7 (2013) 10 Supreme Court Cases 627 13 HACJ_&_MSM,J.
WP.No.29325 of 2010(vide Cicily Kallarackal v. Vehicle Factory [2012 (8) SCC 524], State of Orissa v. Mamata Mohanty [2011 (3) SCC 436] and K.R. Mudgal v. R.P. Singh [1986 (4) SCC 531]. In these cases, it has been held that the application should be rejected on the ground of inordinate delay.
The consistent view of the Apex Court in various judgments referred above was that, for abnormal delay, which is unexplained disentitles the petitioners to claim such discretionary relief under Article 226 of the Constitution of India.
Turning to the facts of the present case, by applying the law laid down in the above judgments, G.O.Ms.No.8, Public Works Department, Project Works, Projects Wing dated 06.01.1964 and consequential G.Os i.e. G.O.Ms.No.16 dated 09.01.1965 and G.O.Ms.No.399 dated 25.10.1969 were issued as early as in the years 1965 and 1969 respectively on the recommendations made by the Central Government as well as Tobacco Promotion Council. But, the petitioners approached this Court in the year 2010. Thus, there is an abnormal unexplained delay of more than 40 years. It appears from the allegations made in the affidavit that after exclusion of Ac.1,50,000-00 of land in the villages stated supra, the petitioners and other ryoths grown tobacco maintaining good quality, since tobacco crop does not require any irrigation water, enjoyed profits, but, due to passage of time, the land developed salinity and became unfit to raise tobacco gradually. Then, they realized the deprivation of their right to claim irrigation water under the ayacut of right canal of Nagarjuna Sagar and started agitating in various modes. 14
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WP.No.29325 of 2010The petitioners or any other persons did not explain the reason for the delay in approaching the Court under Article 226 of the Constitution of India. Consequently, the law laid down by the Apex Court is directly applicable to the facts of the present case and on this ground alone, the relief can be denied to the petitioners, since the equities are not in favour of these petitioners and such discretion cannot be exercised by this Court in favour of the petitioners, who caused abnormal delay, though cause of action for filing the petition arose in the year 1964, when G.O.Ms.No.8, Public Works Department Project Works, Projects Wing dated 06.01.1964 was issued. Therefore, we find that it is not a fit case to exercise power of judicial review under Article 226 of the Constitution of India, which is purely discretionary in nature and consequently, the writ petition is liable to be dismissed. Hence, the writ petition is dismissed at the stage of admission itself.
In the result, writ petition is dismissed.
Consequently, miscellaneous applications pending if any, shall stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:30.09.2019 SP