SRIRAM REDDY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) These two petitions are filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the Government of Andhra Pradesh the Chief Engineer (Minor Irrigation) and Superintending Engineer (P.W.D) Warangal Circle, to forbear from constructing and opening thre events in the weir of Enakunta tank situated at Kummarakunta village in Mahaboobabad taluk, Warangal district. The three petitioners in W.P. No. 1740/67 and the two petitioners in: W.P. No. 2034/67 are ayacutdars under Enakunta tank. Tae affidavits filed in support of the two writ petitioners contain substantially the same and similar allegations. The petitioners in the two writ petitions were represented by different Counsel, who addressed separate arguments but raising substantially similar contentions. It will, therefore, be convenient to deal with these petitions together.

(2.) The irrigation system in Kummarakunta viliage consists of an anicut across the Paleru river from where a feeder channel takes of to carry water. into a chain of tanks called Nidanpur tank, Enakunta tank Pedda Cheruvu in Kummarakunta village and Uracheruvu, Kothakunta and Achammakunta in Reponi village. From Nidanpur tank, water is let into the Enakunta tank and from Euakunta tank to the four other tanks lower down. In these two writ petitions we are concerned with Enakunta tank, it is stated that there is an area of 220 acres under wet cultivation in the ayacut of the Enakunta tank. It is also alleged that the total volume of water requircd for eukivatiug the entire ayacuc under the Enakunta tank is 38. 40 million city., where as the capacity of the tank is only 14. 09 million c.ft., which neccsitates the filling up of the tank over and over again several times. In addition to the volume of water from the feeder channels the Enakunta tank has its own catchment area. These. tanks would appear to have been under private management for a long time till the management was transferred to the Government ia or about 1963. In. 1965 the Government wanted to bring up these tanks to P. W. D. standards. Accordingly, some works were designed and initiated by the department. At that stage, one J. Janardana Reddy, an ayacutdar under Peddacheruva and Uracheruvu, filed a petition before the,Chief Engineer (Minor Irrigation) on 29-4-1966.Stating that there was an attempt to raise the weir of the Enakunta tank and close the vent through which water flowed into the lower tanks and that these steps were being taken at the instance of ayacutdars upder Enakunta tank and, if implemented, the ayacutdarns under the lower tanks would suffer. On this petition, the Chief Engineer ordered stay of all further constructions and called for a report from the Executive Engineer. On 6-6-1966, the Executive Engineer submitted a report stating that the repairs to the existing anicut were almost complete, that the restoration repairs to Nidanpur tank and Enakunta tank, which were taken up in 1966, were nearing completion, that the allegation of the ayacutdars under the lower tanks about the raising of F.T.L. was not correct, that he explained to the ryots the facts of the case and that the modified proposals sought to be implemented by him are to the best advantage of the lower down tank ayacutdars and that the representations were due to village party polities. The Executive Engineer requested for early orders for the proceeding with the work. On 7-7-1966, the Chief Engineer directed that, in view of the representation of the Executive Engineer, he may be instructed to complete the work of the body wall of the Enakunta weir upto 195-00 and that the size of the vent way in the weir may also be kept at the previous size i.e , 21/2 x 11/2with sill at 192-0O. In those proceedings, the Chief Engineer called for certain clarifications from the Superintending Engineer as to the reasons for interfering with the existing Itructure and also enquired as to whether the Collector's opinion was obtained before taking up the work. Janardana Reddy filed a petition before the Chief Engineer on 15-8-1966 stating that the vacation of the stay by the Chief Engineer and the consequent completion of the works in the Enakunta tank would cause irreparable damage and requested the restoration of the status qua ante or a direction to theSuperintending Engineer to inspect the site in the presence of the ryots. On this, the Chief Engineer made a note on 21-8-1966 as to whether the Superintending Engineer had submitted his report and, if not he should inspect the tank in the presence of the ryots concerned and submit a detailed report specifically with reference to the three points menutioned in the note. On 17-9-1966, Janardan Reddy filed a petition before the Chief Minister complaining against the raising of the weir of the Enakunta tank would result in the diminution of supply to the lower tanks and the consequent danger to the standing paddy crops in about 300 acres. A request was made in the petition that the Chief Engineer may be directed to make a spot inspection and give immediate relief. On this petition, the C. M. made a note on 19-9-1966 directing the Chief Engineer to go and personally inspect and give a report within a month. On 24-9-1966, the Deputy Secretary to Government, Public Works Department, forwarded a copy of the petition dated 17-9-1966 filed before the Chief Minister to the Chief Engineer and requested him to inspect the tanks mentioned in the petition personally and send a detailed report to the Government within a month. In the meanwhile, on 19-9-1966. a copy of the petition filed before the Chief Minister was sent to the Chief Engineer and on that, before the receipt pf the letter of the Deputy Secretary to Government, Public Works Department on 28-9-1966, the Chief Engineer had noted whether the Superintending Engneer had sent a report and if not, he should be;given a reminder to send it by 30-9-1966. The report of the Supeintending Engineer was received by the Chief Engineer on 26-10-1966. The Chief Engineer inspected the tank on 20-11-1966,and sent a report dated 9-12-1966. A copy of the report was sent to the Superintending Engineer with a request for the submission of detailed proposals based on the instructions contained in his report dated 9-12-1966 The Superintending Engineer, in his communication dated 13-4-1967, sent proposals regarding the vents, the weir and the shutters. These proposals were approved by the Chief Engineer in his order dated 22-6-1967. On 22-7-1967, the Joint Secretary passed the following order. "GOVERNMENT OF ANDHRA PRADESH P. W. D. Memo No. 3856-P1/66-13, dated 22-7 1967. Sub : Irrigation - Warangal Distiict - Mahbubabad Taluk . Nidanpur Kummarakunta and Reponi villages - Kumma- rakunta Anicut system on Palair river. Ref: 1. From C. E Minor Irrigation Letter No. L 3/35508/ 66.8 dated 9-12-66. 2 From C. E Irrigation letter No. L3/35506/66.8 dated 27-4-67. In the circumstances reported in the letter cited, the Government accept the suggestions of the C. E. (Minor Irrigation) for the provision of shutters to the Head Regulator at the anicut and suitable vents with screw gearing shutters to the three upper tanks referred to by him in the last para of his letter 1st cited and also for keeping under the control of P.W.D. for ensuring the efficient functioning of this system and also to mitigate the grievances of the ryots.

(3.) The Chief Engineer (Minor Irrigation) is requested to take necessary action in the matter and send his implementation report to Government in due course, Sd/-x x x Jt. Secretary to Government.' The proposals of the Chief Engineer, so far as the Enakunta tank is concerned, are of the opening of three vents each 3 feet wide and 4 feet deep with regulator and screw gearing rod and shutter in the weir, the sill level of the vents being 191-00. It is the opening of these three vents that is objected to by the petitioners in these two writ petitions. The contentions of the learned counsel may be stated as follows: 1. that the opening of the vents in the manner proposed will deprive the ayacutdars under the Euakunta tank of the customary supply of water; 2, that the impugned action has been initiated .and sought to be impfemented with the mala fide motive of injuring the ryots under the Enakunta tank, who belong to a political group opposed to the Chief Minister;; 3, that the action of the respondents is [opposed to Sec. 18 of the Andhra Pradesh Panchayat Samithis and Zill Paris'hads Act read with clause (ii) of item 2 of the schedule to the Act and 4, that, in the circumstances of this case, there was a Us between the ayacutdars under the Enakuma tank and the ayacutd ars under the lower tanks and as such, the deeemination of the dispute is in the nature of a quasi-judicial proceeding and that she Government should not have taken sides. Even so, in " any view the Government should have followed the usual procedure of giving notice before deciding questions that relate to the enjoyment of the property by the parties concerned. The learned Advocate-General for the respondents had conrended that the proposals impugned do not result in the diminution of customary supply of water and even, if it were so, that is a question that cannot be determined in a petition under Art. 226 of the Constitution. It is also argued by him that there is absolutely no basis for the imputation of malafides and political bias to the Chief Minister or want of good faith on the part of the Chief Engineer and the Superintending Engineer. Ay regards the third contention that the action taken by the Government is opposed to Section 18 of the Andhra Prades Panchayat Samithis and Zilla Parishads Act read in the context of clause (x) of item 2 of the Schedule to the Act, the learned Advocate-General has argued that the provision enacts that the Panchayat Samithis are entrusted with the maintenance of minor irrigation sources and supply channels only and that the Government is not relieved of its duty of regulating the customary supply of Water for irrigation. It is also argued that the action impugned is well within the jurisdiction of the Government and calculated to achieve an equitable distribution of water between "the ayscutdars of fix tanks under the irrigation system. I shall deal with the contentions of the learned counsel for the petitioner seriatim. The first contention is that the opening of the vents would adversely affect the ryots under the Enakunta anicut. There is a long line of authority for the position that the Government has a right to distibute the water of Government Channels among ryotvari proprietors holding wet lands in the ayacut, the only limitation on those power being that they should not disturb exiting arrange mems for the supply of water without providing an equally convenient source of supply of water necessary and sufficient for the cultivation of their wet Iand. In the leading case on the subject Robert Fischer v The Secrelary of State for india in Council, after a review of a large number of anthor ties, it has been held that the Government has power, by the customary law in India, to regulate in the public interests, in connection with the collection, retention and distribution of waters of rivers and streams and of waters introduced into such rivers by means of works constructed at the public expense, and in the public interents, for purposes of irrigation, provided they do not thereby inflict sensible injury ou other riparian owners and diminish the supply they have hither to Utilised. To the same effect are the decisions of the Madras High Court in .Sankarmadwelu pilial v. Secretary of Staff, for India and Secretary of State for India v. Muthweeramalreddi and Lachuma Goundan v. Pandiyappan ,What in a given case is the customary supply of water the arrangements for the supply of water put in train by the Government are calculated or designed or result in the diminution of the customary supply are questions which can be decided on evidence in the context of such technical opinion as may be found necessary. In my view therefore, the contention of the learned Advocate-General that the controversies in this case can only be gone into and decided in a properly instituted suit is well founded. In the view I have so taken, I do not think it necessary or even fair to go into a detailed examination of the contentions of the parties as regards the effect of. the opening of the vents and the possible diminution of the customary supply of water to the ayacutdars under the Enakunta tank. I shall now deal with the contention as to the mala fides. It has been aifeged that the action of the respondents is vitiated by mala fides on the part of the Chief Minister, The Chief Engineer and the Superiniending Engineer.