THE HON'BLE MR JUSTICE L.NARASIMHA REDDY
WRIT PETITION No.17648 OF 2012
30.07.2012
B.Yadagiri
District Collector, Nalgonda and others.
Counsel for petitioner: Sri G.Purushotham Reddy
Counsel for Respondents : GP for Revenue
<GIST:
>HEAD NOTE:
?Cases referred
ORDER:
The petitioner owns Acs.4.30 guntas of land in different survey numbers of
Kasarlapahad Village, Jagireddygudem Mandal, Nalgonda District. The common
well, in which, the petitioner and the
4th respondent have 25% share, each, and one Laxmaiah has 50% share, is a source
of irrigation. The petitioner sunk a bore-well, in his land, in survey No.172,
in January, 2012, on finding that the water that falls towards his share from
the common well, is not sufficient to irrigate his land.
The 4th respondent submitted a complaint, against the petitioner, to the
Tahasildar, Jagireddygudem Mandal, the 2nd respondent herein, under the A.P.
Water, Land and Trees Act, 2002 (for short 'the Act') and the Rules made
thereunder (for short 'the Rules'). A notice, dated 17.05.2012, was issued to
the petitioner, directing him to explain as to why action be not taken against
him, under the Act and the Rules. The petitioner submitted his explanation, on
23.05.2012. However, on 02.06.2012, the Mandal Revenue Inspector, Kasarlapahad
Village, the
3rd respondent herein, seized the starter and other equipment and made the bore-
well non-operational. The petitioner challenges the action of the respondents 1
to 3. He contends that the very issuance of notice is contrary to the
provisions of the Act, since the village is not notified as over-exploited under
Section 11 of the Act, nor it is pointed out that the bore-well is within the
prohibited distance from any drinking water source. Other grounds are also
urged.
Heard Sri G.Purushotham Reddy, learned counsel for the petitioner,
learned Government Pleader for Revenue and none appears for the 4th respondent.
The petitioner sunk a bore-well, in January 2012, in his land, in survey No.172
of Kasarlapahad Village. Through notice, dated 17.05.2012, the 2nd respondent
required the petitioner to explain as to why, the bore-well be not seized, since
it was sunk without any permission and within a distance of 30 feet from the
existing well. The explanation submitted by the petitioner is, no doubt, not
happily worded, nor it is succinct. Being a farmer, the petitioner seems to
have approached somebody in the locality, and he, in turn, has exhibited his
linguistic skills. The gist of the explanation is that, the complainant i.e.,
the 4th respondent has only 25% share in the common well; that the holder of 50%
share did not make any complaint; the village is not notified as over-exploited
one, and that there is no basis for initiation of the proceedings. The 2nd
respondent did not pass any orders, after receiving the explanation. However,
on a direction issued by him, the
3rd respondent seized the starter and other equipment of the bore-well under a
panchanama. Thereafter, the 2nd respondent addressed a letter, dated 06.06.2012
to the District Collector, Nalgonda, the 1st respondent, narrating the
developments and soliciting his opinion. Therefore, it needs to be seen, as to
whether the steps taken by respondents 2 and 3 are in accordance with law.
The Act has been enacted by the A.P. State Legislature in the year 2002, with a
view to promote water conservation to regulate the exploitation of use of ground
and surface water sources, and to deal with the other matters incidental
thereto. Chapter II provides for the constitution of the Authority under the
Act. Chapters III and IV are devoted to conservation and protection of water
sources. Chapter V deals with the trees and Chapter VI with the miscellaneous
matters.
Section 8 mandates that with the commencement of the Act, the owners of the
wells, in the State, shall get the wells and water-bodies registered with the
Authority in a prescribed manner. Section 9 provides for steps to preserve the
ground water levels, in general. If, in the opinion of the Designated Officer,
the pumping of water by individuals, or organisations, in any particular area,
is likely to result in depletion of ground water level, or damage to the
natural resources or environment, he may issue orders prohibiting such pumping
of the water, for a period not exceeding six months. He can also issue
directions to the Transmission Corporation of A.P. not to collect the
electricity charges during that period. The sinking of new wells, in such area,
is not allowed, when the prohibition is in force. Section 10 of the Act is
aimed at protecting the drinking water sources. Sub-section (1) thereof
prohibits sinking of wells within a distance of 250 metres from the existing
drinking water source. If any person intends to sink a well within that
distance, he shall be under obligation to apply to the Designated Authority and
it is only on such permission being accorded that a well be sunk.
Section 11 of the Act empowers the Authority, on the advise of technical
experts, to declare any particular ground water basin, as defined under sub-
section (5) of Section 2, as "over exploited". Such declaration shall be in
force for a period six months and it can be extended for a further period of not
more than six months at a time. The parameters that are required to be taken
into account, to declare a basin as over exploited area, are indicated therein.
The Authority is also required to identify steps to improve the ground water
levels.
Section 12 has a different purpose to serve. If an existing well is found to be
adversely affecting the public ground water source, the Authority may prohibit
extraction of water for commercial, industrial or other purposes, from such
wells within its vicinity for a period not exceeding six months and such period
can be extended thereafter. The prohibition of extraction of water for
irrigation purposes is required to figure in the last of the priorities. If the
situation does not improve on account of such measure, the Authority may direct
the stoppage of extraction of water and closure of wells temporarily, or
permanently.
A combined reading of these provisions, makes it clear that the sinking of a
well by an individual is prohibited,
a) when the prohibition issued by the authority under Section 9 of the Act,
against pumping of the water in respect of an area where the well is proposed to
be dug, is in force (proviso to Section 9(1));
b) when it is proposed to be sunk within a distance of 250 metres from existing
drinking water source (section 10); and
c) when it is sought to be sunk in an area, as regards which the declaration by
the authority that it is "over exploited", is in force (section 11).
In the instant case, it is not the plea of the respondents that the Authority
has issued any declaration under Section 11 of the Act, to the effect that
Kasarlapahad Village is part of any ground water basin, declared as "over-
exploited". It is also not their case that the bore-well sunk by the petitioner
is within 250 metres from the existing drinking water source or that any measure
contemplated under Section 9 of the Act was initiated for the area. Obviously
because, the officials were not sensitised properly to the provisions of the Act
and the rights of the citizens thereunder, the steps were initiated, either in
the form of issuing notice, or seizing equipment, without reference to the
relevant provisions of law, or the measures contemplated thereunder.
The Act is purely regulatory in nature. Sinking of bore-well is not a
prohibited activity. It is only in the process of regulation that certain
restrictions are placed, on the freedom of a citizen to sink bore-well in his
land. Such a freedom can be curtailed, only by making reference to the relevant
provisions of law. The situations contemplated under the Act are many, ranging
from prohibition of pumping of water from existing wells, to the one of banning
the sinking of new wells, in the area as regards which a declaration issued
under Section 11 of the Act, is in operation. The sinking of well can be found
fault with, if only it is found to be in contravention of any particular
provision of law. Further, it is only when the reasons are communicated to the
affected person, through an order in writing that he would be in a position to
know the violation, if any on his part, and can pursue the remedies. It has
already been pointed that the 2nd respondent did not pass any orders against the
petitioner, nor any provision of any law was mentioned in the show cause notice.
The seizure of the equipment and sealing of bore-well cannot be sustained.
Hence, the writ petition is allowed and respondents 2 and 3 are directed to
handover the seized equipment and remove the seal, if any, put on the bore-well.
It is, however, left open to the 2nd respondent to pass appropriate orders, duly
referring to the relevant provisions of law and take further steps as provided
for under the Act and the Rules made thereunder.
The miscellaneous petition filed in this writ petition also stands
disposed of.
There shall be no order as to costs.
____________________
L.NARASIMHA REDDY, J.
Dated:30.07.2012
