APPANA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) In these petitions under Article 226 of the Constitution, the petitioners have challenged the order of Government bearing No. PWD 227 IIB 77 (P) dated 26-9-1979 (Ex-L) according administrative sanction for the construction off a tank near- Murkani, Kasaba Hobli, Kanakapura, Taluk, Bangalore District. For brevity and convenience, this site will be hereinafter referred as site-B.

(2.) A stream or called as a 'halla,' in Kannada joining the river Arkavathi, a tributary of river Cauveri, runs across several villages of Kasaba Hobli of Kanakapura Taluk. For some time past, stated to be for more than two decades, there is a proposal to construct a tank or a bund to store water that flows in that stream, and thus provide irrigation facilities to certain parts of the said area. According to the surveys and investigations conducted by the technical wing of Public Works Department, a, tank can be constructed at 'B' site and also at a nearby place called as Karekal Voddu. For brevity and convenience, Karekal Voddu site will be hereinafter referred to as site 'C'. On, all sides it is admitted that a tank can be constructed on either of these, sites and the same is technically feasible, Apart from the technical feasibility of the sites, the subordinate officers of the Department examined the question, from the point of view of benefit to small marginal farmers, advantages and disadvantages to the members of the Scheduled Castes and Scheduled Tribes (hereinafter referred to as S.Cs and S.Ts). The officers of the Department to the level of Superintending Engineer, except furnishing the technical data for the construction of a tajik on the aforesaid two sites evidently having regard to the controversy generated in the area did not furnish their clear and definite opinion on the selection of one to the exclusion, of the other. On 6-10-1978, the Chief Engineer, Minor Irrigation and Public Health, in the company of his subordinates inspected the sites and reported to Government on 20th August, 1979 (Ex- G) to select site-'B' in preference to site-'C' for the various reasons stated therein. In the said letter, the Chief Engineer, apart from expressing his opinion on the technical and financial aspects to select site-'B', also stated that in the interest of S.Cs and S.Ts of the area, it was desirable to select site-B. So far as advantages and disadvantages to S.Cs" and S.Ts, the Chief Engineer stated thus: "From the above statement it can be seen that the number of beneficiaries in respect of site-'B' are 22 Scheduled Castes and Scheduled Tribes people while at site-'C' the beneficiaries of Scheduled Caste and Scheduled Tribes are only nine. Further, it may be stated that no persons belong to S.C. & S.T. are affected at Site-'B' while 12 Scheduled Cagtes and Scheduled Tribes are affected at site-'C'.". On an examination of the recommendations of the Chief Engineer, Government by its order dated 26-9-1979 (Exhibit-L) has accorded: its sanction to construct a tank at site-'B'. Paras 3 and 4 of the said orde,r that contains the reasons for selecting site- 'B' on the basis of which the whole, controversy has centered round, reads thus: - "The cost per acre works out to to Rs. 2,194 against the maximum limit of Rs. 2,750. Benefit cost ratio with 5 -and 10 per cent interest rate works out to 3.94 and 2,40 respectively. Hence, the project is financially feasible. There was a controversy over the selection of the site. Representations were received to shift the site lower down so, that more water can be stored and more area irrigated. Investigations were conducted for this Karekal Voddu site and the cost of the work was estimated. According to this the estimate for the work was Rs. 26.55 lakhs and an area of 1129 acres could be brought under irrigation. Cost per acre worked out to Rs. 2361/-. In addition, to this increased cost per acre the tank would submerge more area. It has been reported that the proposed site at Karekal Voddu would affect lands of 12 Scheduled Caste and Scheduled Tribe, persons, whereas the proposed tank, which is recommended by the Chief Engineer, would not affect the lands of any Scheduled Caste and Scheduled Tribe persons. Also at the proposed site, more number of Scheduled Caste and Scheduled Tribe people will be benefitted than from the tank at the other site. The Chief Engineer has furnished detailed comparative statement for all these aspects for both the sites. From the statistics furnished by the Chief Engineer, it is clear that the site proposed by Chief Engineer is more advantageous than the other site."

(3.) While furnishing a number of details in support of their case to select site-'C' as against sitee 'B', the petitioners dispute the correctness of the figures furnished by the officers and the Government for selecting site- 'B'. Secondly, the petitioners havee urged that one of the reasons given by Government viz., that the project would not affect or benefit the members of the S.Cs and S.Ts was an irrelevant consideration in selecting the site. Lastly, they have urged tha,t site-'B' has been selected for collateral considerations viz., at the pressure and influence of the local M.L.A. who is a good friend of respondent No. 5, who has come on record at his own request.