@JUDGMENTTAG-ORDER
V.V.S. Rao, J.
BACKGROUND FACTS
1. The petitioners 2 to 52 are members of the first petitioner association (Perali Water Users Association No. 130) and they are ayacutdars of irrigation channel called P.T.Channel which is part of Krishna Western Delta System (KWDS) under Nagarjunasagar - Srisailam Project. One of the distribution points of KWDS is Duggirala lock from where four major distributary channels including Commamuru channel branch off catering to the needs of ayacutdars in Guntur District and to a small extent in Prakasam District. Commamuru channel supplies water mainly to Guntur District and P.T. channel branches off at Nallamada lock. According to the petitioners, the Irrigation Advisory Board of Krishna District resolved to supply water to Krishna, West Godavari and Guntur Districts to an extent of Acs.2,18,000, Acs.27,000 and Acs.25,000 (total - Acs.2,70,000) under Prakasam barrage through four distributary channels including Commamuru channel. However, the Irrigation Advisory Board of Guntur District, resolved to provide water for irrigating only Acs.18,000 under the ayacut of Nizampatnam channel which is one of the four distributary channels branching off at Duggirala lock. An extent of Acs.7,000 was not proposed for irrigation under Rabi crop season. It is alleged that distributary committee/water users association No. 6 covering P.T.channel resolved on 25-11-2001 recommending supply of water for Rabi crop even to Acs.7,000 at the tail end of P.T.channel. Representations were also made to the Member of Parliament of Bapatla Parliamentary constituency who in turn moved the Government. The Government of Andhra Pradesh, the first respondent herein, obtained a report from the second respondent herein, Engineer-in-Chief (Irrigation) and by an order dated 24-12-2001 permitted the second respondent to release water to additional ayacutdars of Acs.7,000 for Rabi crop in Guntur District. However, the Government by Memo No. P.26, dated 3-1-2002 cancelled the earlier Memo dated 24-12-2001 by reason of which the release of water was stopped. Assailing the Government Memo dated 3-1-2002, the petitioners filed the present writ petition praying for a writ of mandamus declaring the action of the first respondent in cancelling the earlier order as violative of principles of natural justice, illegal and arbitrary and contrary to the provisions of A.P. Irrigation Utilisation and Command Area Development Act, 1984 (''the Act'') and the Rules framed thereunder.
2. This Court while admitting the writ petition on 17-1-2002, by order of even date in WPMP.No. 996 of 2002, suspended the Government Memo dated 3-1-2002. This Court by yet another order passed on the same day in WPMP.No. 997 of 2002 directed to release water as per the proceedings dated 24-12-2001 until further orders. This Court also observed that the maintainability or otherwise of the writ petition will be subject to the payment of Court fee. As many as 157 residents of Karlapalem village filed an application being WPMP.No. 1919 of 2002 seeking to implead as respondents 6 to 162 in the writ petition. They also filed another miscellaneous application being WVMP.No. 174 of 2002 praying this Court to vacate the interim order dated 17-1-2002.The application to implead is not seriously opposed by the learned counsel for the petitioners. Be that as it may, respondents 1 to 5 have not filed any counter affidavit, but the learned Govt. Pleader for Irrigation produced the relevant file and made submissions. In view of the urgency of the matter, with the consent of the learned counsel for the petitioners and the learned counsel for respondents 6 to 162 and the learned Govt. Pleader for Irrigation, the writ petition itself was heard finally at length and is being disposed of at interlocutory stage.
3. Respondents 6 to 162 in their counter affidavit raised an objection as to maintainability of the writ petition contending that the impugned order of the Government is not justiciable and is not amenable to judicial review under Article 226 of the Constitution of India. They contend that whether there is adequate water for supplying to Acs.7,000, whether such supply of water to the tail end will cause loss to the lands in the large area of lands in the upper reach of P.T.Channel on account of seepage of water in the land which is admittedly sandy soil are all questions of fact and, therefore, the writ petition is not a proper remedy. Apart from these objections as to maintainability, it is also stated that the lands of the petitioners are registered in the Revenue records as single crop wet land under P.T. channel. A total extent of Acs.22,700 is being irrigated by the farmers of Water Users Association (WUA) Nos.128, 129 and 130 of P.T.channel. An extent of Acs.7,000, which is at the tail end of P.T. channel, is being irrigated under WUA No. 130. Whenever there is surplus water, the State Government used to announce before the commencement of Rabi season and for the current year 2001-2002, the official respondents have not made announcement of release of water. On the contrary, the third respondent, Superintending Engineer, Irrigation Circle, Guntur issued a press statement in EENADU Telugu Daily dated 14-12-2001 stating that water will not be released for the second Rabi paddy crop in Bapatla and Karlapalem Mandals and that the release of water will be stopped on 31-1-2002. In view of the press statement issued by the Superintending Engineer, several other ryots owning lands under P.T.channel under WUA Nos.128, 129 and 130 raised dry crops like Blackgram, Groundnut and Jowar in an extent of Acs.16,700 during November and December 2001. The ryots who are members of WUA No. 130 have also raised dry crops in Acs.5,000 by investing lot of money for cultivation and manure. If water is released now to the lands at the tail end of P.T. channel, 90% of the ryots who raised dry crops will be put to great hardship as there would be unwarranted seepage of water in the sandy soil which is harmful to the dry cops.
4. It is further stated that after having come to know the Government''s decision to release water they filed a writ petition being W.P.No. 337 of 2002 for a writ of mandamus declaring the action of the Government and the Superintending Engineer in deciding to release water in P.T.channel for Rabi season 2001-2002 as illegal and arbitrary. The writ petition was disposed of at the admission stage on 4-1-2002 directing the Superintending Engineer to consider the representation made by the petitioners therein on 24-12-2001 and to take into consideration the question whether release of water would cause damage to the dry crops raised by the ryots. The Government subsequently reviewed their decision by the impugned order on the basis of the report of the Engineer-in-Chief, the second respondent herein, and cancelled the earlier order. The order passed by the Government directing release of water is justified because when compared to the loss that will be caused by release of water to the second crop, the loss allegedly sustained by the petitioners herein is much less.
SUBMISSIONS
5. Learned counsel for the petitioners, Mr. M. Ravindranath Reddy made the following submissions. There is sufficient water available for release into the KWDS. The second respondent in his letter dated 19-12-2001 addressed to the Government, acting upon which the Government passed orders on 24-12-2001 permitting the Engineer-in-Chief to release water to an ayacut of Acs.7,000 for Rabi crop in Guntur District including the lands of the petitioners. The Government of Andhra Pradesh, again by the impugned Memo dated 3-1-2002, for the same reasons, which were submitted by the second respondent in his letter dated 19-12-2001 cancelled the order to release water, which is arbitrary and irrational, especially when all the parties including the WUAs recommended for release of water to the second crop. The impugned order passed by the Government is contrary to the provisions of Section 22 of the Act. He also submits that in usual course water was supplied up to 31-12-2001 and by reason of the orders of the Government dated 24-12-2001, water was supplied beyond December 2001 and it is continued till today by reason of the interim order dated 17-1-2002 passed by this Court. Even according to the report of the Superintending Engineer dated 20-1-2002, in more than Acs.4,000 under P.T.channel the ryots have raised paddy seedbeds and if release of water is not maintained the petitioners would suffer irreparable loss.
6. Mr. M. Chandrasekhar Rao, learned counsel for respondents 6 to 162 submits that the issue whether there is adequate water in the irrigation system and whether the Government having regard to the relevant considerations is entitled not to release water beyond 31-12-2001 are not justiciable issues. He submits that there are three Water Users Associations - WUV Nos.128, 129 and 130, whose members draw water from P.T.channel. There is Acs.9,500 ayacut under WUA 128, Acs.7,200 under WUA 129 and Acs.7000 under WUA 130. Some villagers of only one village i.e., Pedagollapalem representing an ayacut of about Acs.2,000 are before this Court. The lands in question even as per the project report are wet lands. After giving necessary notice the Government decided not to supply water for Rabi crop, though in the earlier year, depending upon the availability of water, now and then Government used to supply water for Rabi crop. When respondents 6 to 162 came to know that the Irrigation Department has decided to release water beyond 31-12-2002, these respondents filed W.P.No. 337 of 2002 which was disposed of by this Court on 4-1-2002 directing the Superintending Engineer to consider the representation dated 24-12-2001 and submit a report to the Government. The Government was directed to pass appropriate orders in this regard. The Superintending Engineer submitted a report in letter dated 16-1-2002. In the meanwhile the Government passed the impugned order after considering the report/letter of the Engineer-in-Chief dated 31-12-2001. He submits that the entire command area under P.T. channel is loose sandy soil. In this area, majority of the ryots raised dry crops like Blackgram, Groundnut and Jowar as second crop as there is single crop wet ayacut under P.T. channel. This year also, out of Acs.23,000 under P.T. channel covered by WUAs 128, 129 and 130, majority of the ryots have raised dry crops. If water is released, due to abnormal seepage of sandy soil, the entire dry crops will be damaged and 90% of the ryots under P.T. channel who raised dry crops will be put to great hardship and irreparable loss. In the absence of any announcement that water will be released for the second crop (Rabi), the petitioners cannot claim any right. The Government are aware about these ground realities and, therefore, issued the impugned order. The petitioners have no enforceable right and, therefore, the writ petition is liable to be dismissed.
7. The official respondents have not filed counter affidavit. The relevant file from the Secretariat relating to the impugned order is produced before the Court. The learned Govt. Pleader for Irrigation submits, in judicial review, the decision to release water or not to release water is not justiciable. He also submits that the earlier order passed on 24-12-2001 was reviewed by the Government having regard to the report submitted by the Engineer-in-Chief on 31-12-2001 that it would not be possible to maintain (+) 834 in Srisailam and (+) 510 in Nagarjunasagar if water is now released for the second crop. He contends that the entire Nagarjunasagar ayacut is a single crop wet ayacut and in the absence of any decision by the Government to release water, no citizen can claim an enforceable right. He also submits that the proposal to release water would involve heavy loss and, therefore, so as to protect kharif crop, the Government reviewed its decision and cancelled the earlier order which is in accordance with law.
POINTS FOR CONSIDERATION
1) Whether the decision of the Government not to release water or the decision of the Government to cancel the earlier instructions to release water are justiciable?
2) Whether the impugned order suffers from any illegality and is vitiated by any irrationality or arbitrariness?
POINT No. 1
8. Whether the impugned decision is justiciable?
9. The High Court shall have powers to issue directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of any right conferred by Part III of the Constitution or for any other purpose. Such directions, orders or writs may be issued to any person or authority including any Government. This enormous power of judicial review of the executive and legislative action is to be kept within the structural parameters of constitutional scheme and must not encroach upon the powers of the Legislature or Executive under the Constitution. On that premise, the Courts ordinarily cannot entertain certain cases involving issues which are not justiciable.
10. ''Justiciable'' means liable to try. The power of judicial review vests in this Court to defend the values of the Constitution and also rights of the citizens. Such power, however, must be exercised within judiciously permissible limitations. By very nature, certain decisions are not justiciable though in extraordinary situations, sparingly the Court can consider legality or otherwise of such decision. In Council of Civil Service Unions v. Minister for the Civil Service (CCSU), Lord Diplock explained the term ''non-justiciable'' as follows.
.........the reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another, a balancing exercise which judges by their upbringing and experience are ill-equipped to perform.
11. Essentially, judicial review has many constraints and limitations. ''Non-justiciability'' of the decision is one such barrier to the judicial review. There may be certain decisions which are no doubt subject to judicial review, but having regard to the question of justiciability a limited review is permissible.
12. A Division Bench of this Court, to which I was a party, in Secretary, Board of Intermediate Education, Hyd. v. S.Srivalli, referred to this aspect of the matter and explained ''non-justiciability'' in the following terms.
13. 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'' (see page No. 123 ''Judicial Remedies in ''Public Law'' by Clive Lewis 1992 Ed.).................The concept of justiciability is not clearly defined in English Public Law. Quite often question of justiciability overlaps with other region of judicial restraint to the extent the review is permissible. According to Clive Lewis, the nature and subject matter of public law may render disputes about a particular exercise unsuitable for judicial review because they raise politically sensitive issues of national policy and national security and the procedural limitations of judicial review may also render certain issues non-justiciable.
14. In Pennar Delta Ayacutdars Association v. Govt. of Andhra Pradesh, a Division Bench of this Court, to which I was a member, declared that the question of justiciability cannot be decided on any inflexible a priori considerations or by application in a straight jacket formula. Generally speaking, policy decisions in the filed of development, economy, irrigation projects, foreign affairs, defence, deployment of forces, allocation of funds etc. lack adjudicative disposition and, therefore, not justiciable. Even a change of policy is also not justiciable having regard to the right of the Government to arrive at a decision by ''trial and error''.
15. In Delhi Science Forum v. Union of India, the Supreme Court held.
............The courts cannot express their opinion as to whether at a particular juncture or under a particular situation prevailing in the country any such national policy should have been adopted or not. There may be views and views, opinions and opinions which may be shared and believed by citizens of the country including the representatives of the people in Parliament. But that has to be sorted out in Parliament which has to approve such policies. .............What should be the role of the State in the economic development of the nation? How the resources of the country shall be used? How the goals fixed shall be attained? What are to be the safeguards to prevent the abuse of the economic power? What is the mechanism of accountability to ensure that the decision regarding privatisation is in public interest? All these questions have to be answered by a vigilant Parliament. Courts have their limitations - because these issues rest with the policy-makers for the nation.
16. In State of Punjab v. Ram Lubhaya Bagga, the same principle was reiterated in the following passage.
...................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 scrutinize it and test the degree of its 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 violative of any constitutional, statutory or any other provision of law. When government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be 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.
17. Whether water should be released for the second Rabi crop to the ryots having ayacut under P.T. channel? This is essentially an issue which lacks adjudicative disposition. It depends on many factors. The project report when the KWDS (irrigation system) was conceived, the level of the water to be maintained at the head works as well as project site at Srisailam and Nagarjunasagar, the nature of soil, the nature of crops and the drinking water requirements of other places and people, are all relevant factors which are to be considered by experts and the Government. The Courts are ill-equipped to adjudicate these issues.
18. The Government is entitled to make pragmatic adjustments which may be required for by particular circumstances. The Court cannot reverse, by judicial review, the decision of the Government merely because the Court feels another decision is fairer or wiser or more logical. When the existence or non-existence of a fact is left to the judgment and discretion of a public body which involves a broad spectrum ranging from the obvious to the debatable, it is the duty of the Court to leave the decision of the fact to the public body to whom the Legislature has entrusted the decision making power (See Lord Bightman in Puhlhofer v. Hillingdon). This grows from the constitutional principle that "Court only destroys and does not re-construct". The observations of the apex Court in G.B.Mahajan v. Jalgaon Municipal Council are apt to be quoted.
................With the expansion of the State''s presence in the field of trade and commerce and of the range of economic and commercial enterprises of government and its instrumentalities there is an increasing dimension to governmental concern for stimulating efficiency, keeping costs down, improved management methods, prevention of time and cost overruns in projects, balancing of costs against time scales, quality control, cost-benefit ratios etc. In search of these values it might become necessary to adopt appropriate techniques of management of projects with concomitant economic expediencies. These are essentially matters of economic policy which lack adjudicative disposition, unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of administrator''s right to tria1 and error, as long as both trial and error are bona fide and within the limits of authority.
19. In Pennar Delta (supra), the petitioners filed a writ petition praying this Court to declare the action of the Irrigation Development Board, Nellore and other officials of the Irrigation Department in not releasing water from Somasila Project for the second crop for the Pennar Delta ayacutdars as illegal and unconstitutional. A consequential direction was also sought to release the water. A learned single Judge of this Court rejected the writ petition in Pennar Delta Auyacutdars Association v. Government of A.P. On appeal, the Division Bench affirmed the judgment of the learned single Judge. Therein, after referring to various decisions in CCSU (supra), Chief Constable of the North Wales Police v. Evans, State of U.P. v. Dharmander Prasad Singh, S. R. Bommai v. Union of India and Tata Cellular v. Union of India, the Division Bench held that there are no judicially manageable standards for scrutinising the material which is the basis for a decision taken by the authority managing the irrigation system. It was observed.
20. 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.
21. In Narmada Bachao Andolan v. Union of India, the Supreme Court was dealing with the challenge wherein the petitioners raised before the Court the issues of environmental clearance in relation to Sardar Sarovar Dam, the controversy regarding the height of the dam and extent of submergence, hydrology, seismicity etc. In the beginning of the judgment itself, the Supreme Court categorically ruled that except implementation of relief and rehabilitation, all other issues cannot be permitted to be raised and that the concern of the Court is protection of fundamental rights of the land oustees under Article 21 of the Constitution of India. The Court also observed that in a situation where conflicting rights had to be considered - some people supporting construction of dam as a panacea for all the problems of the area, some people opposing on the ground of adverse effects - the State has to take decision keeping in view the background of such conflicting issues. When a decision is taken by the Government after due consideration and full application of mind, the Court cannot sit in appeal over such decision. It was further held.
22. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people''s fundamental rights are not transgressed upon except to the extent permissible under the Constitution.
23. In this case, there are no standards to try the issue of release or non-release of water from the irrigation system and hence the issue is non-justiciable.
Point No. 1 is answered accordingly against the petitioners.
POINT No. 2
24. Whether the decision is illegal, arbitrary and irrational?
25. The learned counsel for the petitioners vehemently contends that judicial review is not totally ousted in this case. He submits that the Act governs the decision of the Government to release or not to release water. The decision taken is illegal, being contrary to the provisions of the Act and, therefore, even if it is a policy decision, judicial review is permissible if the petitioners are able to show that the decision is not only illegal, but also arbitrary and violative of constitutional provisions. There cannot be any dispute about the legal principle.
26. In Srilekha Vidyarthi v. State of U.P. and Mahesh Chandra v. Regional Manager it was held that every decision which is irrational and unreasonable is arbitrary and every arbitrary decision attracts the wrath of Article 14 of the Constitution. Whether a decision is arbitrary or not has to be decided on the facts and circumstances of each case.
27. The learned counsel for the petitioners contends that when a Member of Parliament represented to the Government, the Government obtained remarks from the Engineer-in-Chief (Irrigation), and based on the report an order was issued on 24-12-2001 permitting the Engineer-in-Chief to release water. However, within a period of less than ten days, by the impugned order, the Government cancelled the earlier order dated 24-12-2001 purporting to act on a letter dated 31-12-2001 addressed by the Engineer-in-Chief (Irrigation), which contained no further or different information than what was there in the letter dated 19-12-2001. This, according to the learned counsel for the petitioners, is unreasonable and fraught with non-application of mind. The learned counsel relied on a note of the Superintending Engineer dated 20-1-2002 and submits that there is sufficient water available and, therefore, not releasing water to the petitioners would be illegal and also arbitrary. These submissions have been refuted by the learned Govt. Pleader for Irrigation and learned counsel for respondents 6 to 162.
28. The enactment is ''A.P. Irrigation Utilisation and Command Area Development Act, 1984''.It is an Act to provide for accelerated increase in agriculture and allied production in the State of Andhra Pradesh through a programme of comprehensive and systematic development on scientific and modern lines of command areas and comprising measures for optimum use of lands and water, prevention of land erosion and water logging, improvement of soil fertility and regulation of cropping pattern. It is also intended to provide for proper maintenance and upkeep of irrigation systems in the State for ensuring maximum benefits to the cultivators under the command areas in the State.
29. Chapter V of the Act deals with regulation of irrigation and equitable water use management. As per Section 19 of the Act, the Irrigation Officer, who, as per Section 2(16), is an officer of the Revenue Department not below the rank of a Revenue Divisional Officer or an officer of the Irrigation Department not below the rank of Deputy Executive Engineer, having regard to the availability of water and other factors, shall have powers to regulate supply of water from an irrigation system up to and below a pipe outlet. He shall also specify the time for letting out water for irrigation, duration of supply, quantity of supply and different areas to be supplied at different times.''Pipe outlet'' as defined in Section 2(22) means an opening or contrivance constructed by the Government in an irrigation system through which water is delivered for irrigation at the periphery of the localised area ordinarily not exceeding forty hectares. The learned counsel for the petitioners, having regard to these provisions, relies on Section 22 of the Act and submits that when once release of water is commenced, the same cannot be stopped until such crop shall come to maturity. The learned Govt. Pleader, however placed reliance on Section 24 and submits that Sections 19 and 22 have no application to the facts of the case. According to him, u/s 24 of the Act, it is for the Government to specify for each command area, principles of localisation for the purpose of irrigation. Sections 22 and 24 of the Act may be extracted as here.
22. Supply of water for irrigation of one or more crops:- Where water from an irrigation system is supplied for the irrigation of one or more crops specified by the Irrigation Officer, the right to use such water shall be deemed to continue only until such crop or crops shall come into maturity, and to be lawful only in respect of such crop or crops.
24. Power to specify principles of localisation:- (1) Subject to such rules as may be made in this behalf, the Government may, having regard to resources of land and water, nature of soil, climate and other technical considerations, by an order, specify for each command area principles of localisation for the purpose of irrigation.
(2) The Government may, having regard to the advancement in technology of land water management and other agronomic practices, alter, from time to time by an order, the principles of localisation so specified for any command area.
Explanation:- The term "principles of localisation" shall include the prescription of seasons of the irrigation, the type of irrigation, such as wet, irrigated dry, double crop, or single crop, or perennial irrigation.
30. As per Section 24 of the Act, it is for the Government which have to specify the principles of localisation. Be it also noted that u/s 25 of the Act, subject to directions as may be issued by the Government, the District Collector is competent to classify the lands and irrigation system having regard to the quantity of water available in irrigation system within his jurisdiction. After the Government decides that water is made available for release, it is then for the Irrigation Officer to regulate the supply of water up to and below a pipe outlet; Section 22 of the Act comes into play only when the Irrigation Officer allows supply of water up to and below pipe outlets. When there is no decision of the Government to release water for the second crop, Sections 19 and 22 have no application.
31. It is well settled that the provisions of an enactment must be interpreted having regard to the objects of the Act. If there is any apparent or perceived conflict between the two provisions of the same enactment, the Court should apply the principles of contextual interpretation and harmonise the two provisions. These principles are well settled. A reference may be made to Chief Justice of A.P. v. L.V.A. Dikshitulu, Kehar Singh v. State (Delhi Admn.), District Mining Officer v. Tata Iron & Steel Co. and Dadi Jagannadham v. Jammulu Ramulu.
32. In Kehar Singh (supra) it was held that the Court must examine the Act as a whole and look at the whole situation; not just one-to-one relation. No provision should be considered out of the framework of the statute and all provisions should be construed to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.
33. Having regard to the objects of the Act, namely, increase of agriculture and optimum use of land and water, it is reasonable to interpret the provisions of the Act as indicated above.
34. The impugned order is not an order u/s 46 of the Act as contended by the leaned counsel for the petitioners. Therefore, on the question whether Section 22 of the Act applies, this Court holds that there is no obligation either on the Irrigation Officer or the Government to continue water supply until the crop, if any, comes to its maturity. In any view of the objects of the Act, Section 22 cannot be interpreted as conferring any unfettered right on an ayacutdar to insist that till a crop in his land matures the Government should supply and continue to supply water for irrigation. Whatever be the reason and whatever be the consequences, it is well settled principle of common law that no person has an enforceable right to draw water from a government source of irrigation unless the Government decides to supply water from such source subject to conditions that may be imposed. In this connection, a reference may be made to the judgments of this Court in M.Kishtaiah v. Revenue Divisional Officer, Medak, Venkateswarlu v. Rangaiah and K.Narasimhulu v. District Collector, Medak.
35. It may also be noticed that as per the doctrine of public trust which is now part of Indian public law, by reason of a judgment of the Supreme Court in M.C. Mehta v. Kamal Nath, it is the duty of the sovereign to protect and regulate all aspects of water and land. On the principle of this doctrine, the State is not only bound to regulate water supply but it must strive to realise the objects of the Act.
36. The submission that there are no changed circumstances enabling the Government to withdraw its earlier decision to release water is baseless and devoid of any merits. The learned Govt. Pleader has placed the relevant file before this Court. A perusal of the same discloses the following chronology of events.
37. The Member of Parliament, Bapatla addressed a letter dated 15-12-2001 to the Hon''ble Chief Minister to examine the representation of the President, Perali Water Users Association and to take necessary action to issue permission for release of water in KWDS for Rabi crop to the villages of Perali, Peralipadu, Thummalapalli, Pedagollapelam, Chintaipalem, Sumittavaripalem, Selamvaripalem, Kappalavaripalem, Hyderapeta and Pinnuboinavaripalem. The letter was forwarded by the Chief Minister''s office on 4-1-2002 to the Secretary to the Government, Irrigation Department. Even before the communication from the Chief Minister''s office dated 4-1-2002 reached the Secretary, a letter bearing No. DCE.IV/0TM5/KDS/2nd Crop, dated 19-12-2001 emanated from the office of the Engineer-in-Chief (Irrigation). The said letter was not signed by the Engineer-in-Chief. Be that as it may, in the said letter, the Engineer-in-Chief never recommended for release of water for the second crop for Acs.7,000. The tone and tenor of the letter is against release of water. According to the Engineer-in-Chief, though a quantity of 1.50 TMC (Thousand Million Cubic Meters) is required for Acs.7,000, in view of the sandy soils in the command, an additional 2.50 TMC would be required to run the Commamuru canal for about 70 k.m and that 4 TMC water would be required. Secondly, he opined that water level at (+) 834 at Srisailam and (+) 510 at Nagarjuna Sagar have to be maintained to commence irrigation supply in June to Krishna Delta and in July to Nagarjuna Sagar ayacut to raise seedbeds and to provide drinking water. Thirdly, as per the decision of the Irrigation Advisory Board of Krishna District, 30 TMC water would be the requirement to provide irrigation to Acs.2.18 lakhs in Krishna, West Godavari and Guntur Districts. Fourthly, the Engineer-in-Chief informed that the Irrigation Advisory Board of Guntur District resolved to provide irrigation only to Acs.18,000 for the ayacut under Nizampatnam channel, East Side channel and Krishna Western Bank channel and that the Board has not proposed irrigation to the ayacut of Acs.7,000 under P.T. channel. It was specifically indicated that as all the canals are to be run to the tail ends, the same would result in heavy losses.
38. On the same day i.e., 19-12-2002, a note was prepared in the Irrigation Department in File C. No. 42926/IRR.II.2/2001. Though it was mentioned in the note that the letter dated 19-12-2001 was not signed by the Engineer-in-Chief (Irrigation), with great speed the file was processed and one line order was issued on 24-12-2001 permitting the Engineer-in-Chief to release water to additional Acs.7,000. This prompted the Engineer-in-Chief to send almost a ''SOS'' letter dated 31-12-2001 to the Government requesting them to re-examine and communicate necessary orders. It is appropriate to extract the entire letter dated 31-12-2001 sent by the second respondent.
Sir,
Sub: Krishna Western Delta - instruction for release of water to Rabi Crop to an additional Ayacut of 7000 acres under P.T. Channel System - Reg.
Ref: 1) T.O.Lr.No. DCE.IV/OT M5/KDS/2nd Crop Dated 19-12-2001.
2) Govt. Memo No. 42926/Irr.II.2/2001-I, I & CAD Department dated 24-12-2001.
@@@@
While inviting a kind reference to this office letter first cited, wherein it has been informed to the government that for providing water to the 7000 acres of Ayacut under PT Channel System, Commamuru Canal has to be run for about 70 KMs close to Nallamadalock and run PT Channel to tail end which would contribute to heavy seepage and evaporation losses and a quantity of about 4 TMC would be required even though the Ayacut is only 7000 acres.
It is further informed that it has been contemplated to maintain water level at (+) 834'' in Srisailam and (+) 510'' in Nagarjuna Sagar Project at the end of the water year so as to arrange early releases to the Ayacut in Krishna Delta and Nagarjuna Sagar commands in the next Khariff season.
Government in the memo second cited have permitted to release water to the additional Ayacut of 7000 acres for Rabi crop in Guntur District.
As there would be heavy losses and a quantity of 4 TMC would be required for irrigating the 7000 acres Ayacut located in the tail end, I request the Govt. to kindly re-examine and communicate necessary orders early.
Yours faithfully,
Sd/-
ENGINEER-IN-CHIEF (IRRIGATION)
39. The Principal Secretary to the Government, Irrigation Department made the following endorsement on the file.
40. The E-in-C had earlier reported that 4 TMC of water would be required for supply to 7000 acres of lands which are at the end of the PT channel. He had earlier pointed out the need to release of drinking water to various villages and towns of Gudivada, Machilipatnam and Eluru. It was also observed earlier that maintenance of drinking water as well as the additional ayacut are both incompatible with the available water supply. Nevertheless, Government had directed the release of water for 7000 acres. Accordingly instructions have been issued.
41. The E-in-C has now again reported that if water has to be released to 7000 acres apart from heavy losses, it would be difficult to maintain the water levels at (+) 834'' in Srisailam and at (+) 510'' in N.S.P. to ensure a satisfactory Khariff in the forthcoming season. It must be remembered that the NSP ayacut is a SINGLE CROP ayacut and hence Khariff must be protected. This is even more important as upstream dams have come up on Krishna and consequently inflows will be delayed thus threatening Khariff.
42. In view of the above, it is submitted that the earlier orders may be reviewed and no water be supplied to the tail-end ayacut of P.T. channel.
For orders.
Sd/-
Prl. Secy., I&CAD.
43. Accordingly, the impugned order was issued giving reasons more than one. These are -
i) Nagarjuna Sagar Project is single crop ayacut;
ii) It is necessary to maintain water level at (+)834 at Srisailam and (+) 510 at Nagarjuna Sagar Project at the end of the water year for release to Krishna Delta and Nagarjuna Sagar command to next Khariff season;
iii) There is need for release of drinking water for various villages and towns of Gudivada, Machilipatnam and Eluru; and
iv) There would be difficulty in maintaining water level in Srisailam and Nagarjuna Sagar Project as the release of water for Acs.7,000 located in the tail end of P.T. channel would consume almost four times the territorial requirement due to heavy losses which is not compatible if minimum level is to be maintained.
44. It is true that in appropriate cases, delay in the decision-making itself would be arbitrary which would meet invalidation before the Courts. Equally, any decision taken in great haste must also suffer the criticism of being arbitrary and one vitiated by non-application of mind.
45. In Narendra Kumar v. Union of India, the Supreme Court considered the propriety of hasty decision as under.
46. It is submitted that the application has been processed in unseemly haste and without due and proper application of mind. It is true that things moved speedily in this case............This has caused us certain amount of anxiety. Speed is good; haste is bad, and it is always desirable to bear in mind that one should hasten slowly. However, whether in a particular case, there was haste or speed depends upon the objective situation or on overall appraisement of the situation.
47. In this case, the file was processed in such great haste that even before the Chief Minister''s office could re-direct the letter of the Hon''ble Member of Parliament, the Engineer-in-Chief was directed to release water, which he never proposed nor recommended. Further, though the letter dated 19-12-2001 was not signed by the Engineer-in-Chief and though the same was not communicated by the Chief Minister''s office, on the same day, office note was put up and orders were obtained from the Hon''ble Minister on 22-12-2001. The order dated 24-12-2001 does not contain any reasons and it was issued on a misunderstanding of the report sent by the Engineer-in-Chief. When the Engineer-in-Chief brought to the notice of the Government that the entire irrigation system would suffer in the ensuing Khariff season, the Government issued the impugned order giving reasons which cannot be called arbitrary.
