*HON’BLE SRI JUSTICE P.S. NARAYANA + WRIT PETITION NO.57 of 2008 %28-01-2008 #Nevuri Gopal Reddy and 5 others.. ..... PETITIONERS VERSUS $The District Collector and Chairman of. Water Board Authority, Karimnagar, Karimnagar District and 5 others. .....RESPONDENTS < GIST: > HEAD NOTE: !Counsel for petitioners: Sri K.Laxmana Chary, Sri Sriram Krishna Murthy. ^Counsel for Respondents 1 to 5: G.P. for Revenue. ^Counsel for Respondent No.6: Sri Roy Reddy. CASES REFERRED 1. 2000(3) ALD 715 (DB). 2. 2002(3) ALT 636. 3. AIR 2002 SC 2445. 4. AIR 1983 SC 1015. 5. (2002) 9 SCC 601. THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.57 of 2008 DATED 28.1.2008 Between: Nevuri Gopal Reddy and 5 others. .. PETITIONERS Versus The District Collector and Chairman of Water Board Authority, Karimnagar, Karimnagar District and 5 others. .. RESPONDENTS THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO.57 of 2008 ORDER: Heard Sri Sriram Krishna Murthy, learned counsel representing Sri Laxmana Chari, learned counsel for writ petitioners, learned Assistant Government Pleader for Revenue representing respondents 1 to 3, learned Assistant Government Pleader for Irrigation representing respondents 4 and 5 and Sri Roy Reddy, learned counsel representing 6th respondent, 2. This Court on 4.1.2008 made the following order: “Learned Government Pleader for Irrigation and Command Area Development seeks time for getting instructions. Post after Sankranthi Vacation, 2008. In the meanwhile, there shall be a direction that the petitioners shall be supplied water as they were supplied till 14.11.2007”. 3. Learned Assistant Government Pleader for Irrigation had placed before this Court para-wise written instructions obtained by her. The 6th respondent filed WVMP No.76 of 2008 to vacate the interim order. Reply affidavit also is filed by the first petitioner. At the request of the counsel on record, the Writ Petition itself is being disposed of finally. 4. Sri Sriram Krishna Murthy, learned counsel representing Sri Laxmana Chari, learned counsel for the writ petitioners had taken this Court through the contents of the affidavit filed in support of the Writ Petition, the counter affidavit and also the reply affidavit and also would maintain that in the light of the facts and circumstances and also the prior orders made in this regard, the change of pattern is impermissible. The learned counsel also had taken this Court through the specific averments made in the affidavit filed in support of the Writ Petition and would maintain that because of this hasty resolution, which is not in accordance with law, the Ayacutdars would be seriously affected and a representation relating to the same had already been submitted to the 1st respondent and hence in the facts and circumstances of the case let the 1st respondent take appropriate decision in this regard. 5. The learned Assistant Government Pleader for Irrigation would submit that the petitioners are having an effective alternative remedy by way of appeal under Section 41-A(4) of A.P. Farmers’ Management of Irrigation Systems Act, 1997, hereinafter in short referred to as Act for the purpose of convenience. The learned counsel also had pointed to Section 41- B of the said Act and would maintain that in the light of the same, the factual controversies raised in the affidavit filed in support of the Writ Petition cannot be effectively gone into by a writ Court. The learned counsel also pointed out to the para-wise remarks obtained by her. 6. On the contrary Sri Roy Reddy, learned counsel representing the 6th respondent had taken this Court through the contents of the counter affidavit and would maintain that several facts had been suppressed and in fact the first petitioner also was a party to the Resolution and he had signed the same and having signed the Resolution, now the first writ petitioner cannot sworn to the affidavit in support of this Writ Petition and file the present Writ Petition and it would amount to suppression of fact. Further, the learned counsel would maintain that the Writ Petition itself is not maintainable since this Court cannot decide such questions. The learned counsel placed strong reliance on certain decisions in this regard. Further, the learned counsel would point out that under Section 41-B of the Act, the petitioners are having an effective alternative remedy. Hence, viewed from any angle, the Writ Petition is not maintainable. Further, the learned counsel would submit that the prior orders, which had been relied upon, would not help the writ petitioners in any way since much water had flown subsequent thereto and in the light of the subsequent changes and in the interest of the concerned agriculturists, Ayacutdars, the present decision had been taken and in fact the same had been approved even by the 1st respondent and at this stage to interfere with the said decision would cause serious prejudice to the concerned Ayacutdars in general. 7. One Nevuri Gopal Reddy and others, the writ petitioners, filed the present Writ Petition praying to call for the records concerning the resolution of the water users association Singa Samudram, respondent No.6, dated 11.12.2007, and the accompanying letter of that date addressed to the District Collector, Karimnagar, the 1st respondent, seeking his permission to implement the resolution and issue an appropriate writ, order or direction especially one in the nature of Writ of Mandamus declaring the same as arbitrary and illegal when it wants to substitute zonal system of water distribution in the place of Anawari system of distribution of water neither to in vogue all along and pass such other suitable orders. 8. The 6th respondent is the Water Users Association, Singa Samudram, represented by its President Madugu Narayana Reddy. 9. The first petitioner had sworn to the affidavit filed in support of the Writ Petition. It is averred that there is Singa Samudram Water Source in Samudra Lingapur village leaving 30 acres for cultivation in that village and havint its Ayacut in the village of Yellareddypet Ac.900, Narayanapur Ac.200, Bappapuram Ac.200, Kosultapet Ac.200 and Sarvaipalli Ac.200. As the water from the irrigation source is not sufficient for cultivation of all the Ayacutdars during Tabi season which is the only cultivation of these Ayacutdars, Anavari system of distribution of water was being followed all along ensuring equitable distribution of water to the farmers of the respective villages after ensuring irrigation for 30 acres in Samudra Lingapur proper as follo9ws: 1. Yellareddypet .. 9 anas 2. Narayanapur .. 2 anas 3. Boppapuram .. 2 annas 4. Kosultapeta .. 2 annas 5. Sarvayapally .. 2 annas Making a total of 16 Anas i.e., Rs.1.00. The respective Ayacuts are in the reveal orders of proximity to the source of Singa Samudram water. That being so whenever some dissatisfaction in the distribution of irrigation of water the same system was found to be only satisfactory. Rule 50 of the A.P. (TA) Land Revenue Rules, 1951 is the guidance on the point: “50. Distribution of water for cultivation in cases of shortage of water supply: If in Tabi season, a patasthal source does not have so much water as to be sufficient for the entire ayacut under it, the area to be wet cultivated under the source during such season shall be determined after making an estimate of the quantity of water. The Girdawar shall, with the aid of the village officers, make an estimate of the water after making a panchanama in the presence of respectable panchas of the village and select the lands to be irrigated. In selecting the lands, the survey numbers nearest to the source and situated in a compact block should be selected. Standing crop of sugar cane, panmalla or plantains and wet inam lands of such sind and neeradies which have been granted to them in lieu of service should be given preference. The Girdawar shall submit his report together with panchanama to the Tahsildar. After the Tahsildar has accorded sanction, arrangement for cultivation shall be made. The Tahsildar shall be responsible to see that these arrangements are completed sufficiently before the cultivation season”. It is stated that in the year 1959 the matter of Tybandi of these lands for the year 1957-58 was subject matter of adjudication before the Revenue Tribunal which was ultimately carried to Board of Revenue. The Board of Revenue in its decision No.84 in file No.24/87/59, Karimnagar, dated 25.4.1962 in substance found favour with the Anawari System while discussing the above rule. It is also stated that no doubt the A.P. (Telangana Area) Irrigation Act, 1357 F. A.P. (Telangana Area) Land Revnenue Act, 1317 F. and the Rules not repealed, but the A.P. Farmers Management of Irrigation System Act 11 of 1997 has come into force on 19.4.1997. This Act gives legal empowerment to farmer organizations the effective management and maintenance of irrigation system for reliable supply and distribution of water. Water Users Association, Singasamudram, is formed covering the Ayacutdars of the above villages from the irrigation source of Singasamudram, 6th respondent, under the Act. It is also averred that previous Associations so far have reiterated and the revenue authorities are also have so far found favour with the Anawari system as the salutary method. While the matter stood thus, till 14.11.2007 on which date the present respondent No.6 endorsed the said method. Now the same Association under the same President, without conducting any meeting of the Association and without even notice or intimation to all the duly effected Directors like petitioners and others, passed the impugned Resolution dated 11.12.2007 doing away the Anawari system and deciding a zonal system of Sections A & B under which each section would get water in alternative years, i.e., in this year. The Ayacutdars of Yellareddypet and Narayanapur would not get any water by way of irrigation from the water source. These farmers have to wait till next year for the cultivation of their fields, even then because of theft of water during the course of irrigation to reach the ayacuts of the next year zone which are at other end from the source of water, no proper irrigated water would practically reach them. Further there is a water source of Tekulapalli cheruvu to Narayanapur village Ayacutdars, Boppapuram village – Jakkula Cheruvu, but there is no other water source as such for Yellareddypet ayacutdars. The President of respondent No.6 has not convened the meeting properly in which such a resolution is passed and that the same was passed in a meeting that was not properly called the meeting was not duly called and it was not attended by all the Directors in particular those like the petitioners 1 and 2. He addressed an accompanying letter to the District Collecotor, Karimnagar, respondent No.1, for permission to implement the same. The Ayacutdars adversely affected by the resolution have hastened to handover a representation to the District Collector against the impugned resolution, but 6th respondent with the help of revenue and irrigation officials is trying to effectuate in the policy under impugned resolution from this very year. The petitioners made a representation to the 1st respondent on 27.12.2007 to take action for releasing water. In such circumstances it is stated that the writ petitioners approached this Court praying for the appropriate reliefs specified supra. 10. In the counter affidavit filed by the 6th respondent, which was sworn to by the President of the 6th respondent-Water Users Association, it is stated that the writ petition itself is not maintainable and the petitioners are not entitled for issuance of a Writ of Mandamus as prayed for for the following reasons: (a) The issue raised in the Writ Petition relates to equitable distribution of water for irrigation purposes and such an issue has been held by the Courts to be not a justiciable issue in proceedings under Article 226 of the Constitution of India. (b) The writ petitioners do not have an enforceable or un fettered right to ask for being supplied water for irrigation purposes in a particular manner. (c) The writ petitioners cannot pray for Mandamus against a statutory body (Water Users Association formed under the A.P. Farmers Management of Irrigation Systems Act, 1997, for preventing it from discharging its statutory functions. (d) The writ petitioners have not chosen to avail the alternative statutory remedy i.e., a revision under Section 41-B, which is available under A.P. Farmers Management of Irrigation Systems Act, 1997. Further it is averred that the writ petitioners had consciously and willfully suppressed the material facts which have a bearing and relevance for the purpose of adjudication of the Writ Petition and on this ground alone the Writ Petition is liable to be dismissed in limine. Further it is averred that the decision to introduce the zonal system of irrigation for assuring equitable distribution of irrigation waters to all the members/Ayacutdars of the Singasamudram WUA was taken strictly in accordance with the procedure prescribed under the A.P. Farmers Management of Irrigation Systems Act, 1997 and the same is also in consonance with the recommendations of the competent authority i.e., Assistant Engineer, Irrigation Section, Upper Manair, Nirmal, and there is no illegality or irrationality in the said decision as alleged by the writ petitioners. This decision was taken after examining all the relevant factors including the interest of all the members of Singasamudram WUA, the irrigation and hydraulic aspects, which had to be considered, in the larger of all the members of Singasamudram WUA, inasmuch as hitherto, the distribution of irrigation water was not being done in an equitable manner and several members/Ayacutdars were being put to hardship on account of the then existing system i.e., Anavari System. It is further stated that the issue had been put before the general body of Singasamudram WUA and a meeting was held on 11.12.2007 on which date it was resolved the Zonal System shall henceforth be followed and the Ayacut under Singasamudram WUA be divided into Zone-A and Zone-B (each comprising an extent of 1130 acres, total extent of 2260 acres including surplus Ayacut). This meeting was conducted after issuing notices through the Territorial Constituency Members and also by beat of tom-tom in all areas. All the general body members, i.e., individual Ayacutdars were aware of the meeting and most of them (86%) attended the said meeting on 11.12.2007, which was held at Boppapur Gram Panchayat Office and they were in favour of the introduction of Zonal System of Irrigation. The record maintained by Singasamudram WUA also discloses the same. The allegation that no notices were issued and no meeting was conducted before passing the resolution dated 11.12.2007 is false and is invented for the purpose of present Writ Petition. As a matter of fact the 1st writ petitioner, Nevuru Gopal Reddy, who is the territorial constituency member for Yellareddypet T.C. also attended the meeting and he also signed the resolution dated 11.12.2007 and his signature is at serial No.3. The said resolution also is placed before this Court. Thus, it is stated that the writ petitioners not only suppressed the fact that the general body meeting was held on 11.12.2007, they have committed perjury by filing tampered documents to suit their convenience. The resolution dated 11.12.2007 was, as a matter of fact signed by myself, and also by four other Territorial Constituency Members, i.e., 1st writ petitioner (Yellareddypet T.C.), V.Rami Reddy (Yellareddypet T.C.), A.Narsaiah (Surveypalli T.C.) and G.Sudhakar Rao (Korutlapalli T.C.). Only one territorial constituency member by name N.Raji Reddy did not sign in the resolution as he was absent n the meeting. The resolution contained the signatures of the President and four other T.C. members and hence it is a resolution passed by the majority of 5 out of 6. It is further averred that the competent authority of the Irrigation and Command Area Development Department, Assistant Engineer, Irrigation Section, Upper Manair, Nirmal also attended the said meeting on 11.12.2007. The said official also submitted a detailed report with recommendations to Singasamudram WUA, giving all the technical and hydraulic particulars and recommending introduction of Zonal System in the Command Area/Ayacut of Singasamudram WUA. Under the said system one zone will be supplied with water for one year and the next zone will be supplied with water for the next succeeding year and so on. It would be pertinent to mention that the cultivation under Singasamudram WUA water sources is mainly for only one crop, that too as and when there is rainfall and as and when the irrigation tank, i.e., Singasamudram gets filled up and as such the only feasible, fair and equitable method in which water can be distributed for the entire Ayacut is through the Zonal System, which is now sought to be introduced. The earlier Anavari System was causing much hardship to several members of Singasamudram WUA and several of the lands under the Ayacut of Singasamudram Tank would be uncultivated for years together due to the earlier procedure. It would be relevant to mention that the area in question is a drought prone area and is dependent on scanty rainfall. On 3.1.2008, a meeting of the Territorial Constituency Members (Directors) was conducted and the 6th respondent (President) and four other T.C. members i.e., 1st writ petitioner (Yellareddypet T.C.), V.Rami Reddy (Yellareddypet T.C.), A.Narsaiah (Surveypalli T.C.) and G.Sudhakar Rao (Korutlapalli T.C.) passeda resolution for releasing of water, in terms of the Zonal System. This fact and the fact that a meeting was held on 11.12.2007 have both been suppressed by the writ petitioners. It would also be pertinent to mention that the 1st writ petitioner had signed in both the resolutions dated 11.12.2007 and 3.1.2008 and this has been suppressed. It is also further stated that the contention of the writ petitioners in paragraphs 2 and 3 of the writ affidavit that Anavari System is to be followed is misconceived and irrelevant. The reliance placed on the A.P. (Telangana Area) Land Revenue Rules, 1951 and the order of the erstwhile Board of Revenue passed during the year 1962 is also out of context and does not apply to the current scenario, inasmuch as the said rules are now redundant in view of the subsequent enactment of the A.P. Irrigation Utilisation and Command Area Development Act, 1984 and the A.P. Farmers Management of Irrigation System Act, 1997 and in view of the fact that the Ayacut of the Singasamudram Tank has increased multifold since the year 1962 and the additional Ayacut imposes a great burden on the irrigation system. Further, the petitioners cannot interdict the Singasamudram WUA, which is a statutory body, from discharging its statutory functions under A.P. Farmers Management of Irrigation System Act, 1997. In a matter of this nature, there is bound to be some dissent amongst certain individuals, but the larger public interest has to prevail and the larger interest of the Ayacutdars has to be kept in mind and it is in this context the resolution was passed deciding to introduce Zonal System of Irrigation. The said decision is well within the power and jurisdiction of Singasamudram WUA, as contemplated in Section 17 of A.P. Farmers Management of Irrigation System Act, 1997 and the same is strictly in accordance with law. Further specific stand had been taken that the Zonal System which is now sought to be introduced is only with a view to take care of the entire Ayacut in an equitable manner. 11. A reply affidavit is filed by the first petitioner, wherein again the averments made in the writ petition had been reiterated. It is further averred that the impugned decision to introduce the zonal system of irrigation does not assure the equitable distribution of Singasamudram (Water Users Association). It is stated that the procedure prescribed by the A.P.Farmers Management of the Irrigation System Act, 1997 was not followed. Assistant Engineer, Irrigation Section, Upper Manair, Nirmal, is not a competent authority to make recommendations for the purpose and the copy of the report along with the counter does not inspire any confidence and even that report also says and shows that Yellareddypet and Narayanpur Ayacut are 10 Km and 13 KMs respectively from the tank, but Ayacut area of Yellareddypet is above 9 times of Sarvayapalli Territorial Constituency village Ayacut and the Ayacut of Narayanapuram is double than that of Sarvayapally being equal to that of other two villages of Korutlapet and Boppapuram but at the tail end. Further, the other villages have other sources of water whereas Yellareddypet is depended upon only Singasamudram. In the proceedings of the Revenue Divisional Officer, dated 26.6.1997 dealing with all these aspects and it is held as under: “It is clear from the previous records that every year Taibandi was proposed by the Irrigation Department as per the availability of the water on ‘Anawari’ basis and the same was fixed and is continued. Till recently it is made clear that the Officer entrusted with certain responsibilities and duties are not supposed to change the age old system prevalent in the past and approved by the Government and any additional extent of and should not be included against Taibandi and any cultivation is such came would be unauthorized and no water should be supplied for such cultivation. Therefore, Taibandi has to be fixed every year by holding the enquiry as to the availability of the water keeping in view the previous Taibandi Takhta and after fixing said only water shall have to be released from the tank. It is pertinent to note that now Water Users’ Associations are constituted by holding elections and statutory powers are being given to such bodies. Hence, it is up to them to decide if any change has to be brought in by discontinuing the present system of Anawari if it would be found necessary and proper in the larger interest of the ryots at large and availability of the water in the tank. Therefore, it is ordered accordingly”. It is also stated that after the formation of Singasamudram Water Users Association, 6th respondent, the above Anavari system is continued. Even under the Presidentship of the present President Madugu Narayana Reddy continued this procedure in this resolutions dated 8.11.2006 and 14.11.2007. It is in these circumstances the Vacation Court while ordering the matter to be posted after Sankranti Vacation, 2008, was pleased to grant interim order ‘meanwhile there shall be a direction that the petitioners shall be supplied water as they were supplied till 14.11.2007.’ Petitioners are the Ayacutdars of Yellareddypet village and Narayanapur village. Further in reply to paragraph 5 of the counter affidavit it is stated that no General Body Meeting was held on 11.12.2007. The allegation that all the Water Users were informed by a beat of tom- tom in all areas and that the individual agriculturists are aware of the Meeting is also not correct. While every time the meeiting of Singasamudram Water Users Association used to be held at the Mandal Headquarter of Yellareddypet including those held on 8.11.2006 and 14.11.2007. Now the impugned resolution is said to have passed in the meeting held at Boppapur Gram Panchayat Office and the said meeting is only 26 days after the last meeting i.e., from 14.11.2007 and within these 26 days what made the President to take turn of Anavari system into Zonal system is not known. The 1st petitioner being the Director of Territorial Constituency of Yellareddypet attended the meeting but refused the resolution and not signed on the resolution dated 11.12.2007 and as such No.3 of the copy of the resolution dated 11.12.2007 is blank. Another territorial constituency member N.Raji Reddy who was also present in the meeting also refused to sign on the said impugned resolution. A fresh resolution seems to have been prepared on which the signature of 1st petitioner is obtained under threat and coercion. It is also submitted that the copy of the resolution dated 11.12.2007 is the result of tampering and perjury. Further it is stated that the Assistant Engineer is not the competent authority who is appointed under Section 21 of A.P. Farmers Management of Irrigation System Act, 1997. It is the Superintendent Engineer (I.B) Irrigation and Command Area Development, 4th respondent, is the competent authority. The undated report of the