THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.6736 of 2010 Dated:26.03.2010 Between: Sri D.Prabhakara Naidu. …Petitioner And State of Andhra Pradesh, Rep.by its Secretary, Revenue Department, Secretariat, Hyderabad, And another. ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.6736 of 2010 ORDER: The petitioner is a resident of Digiva Tadakara Village of Tavanampalli Mandal in Chittoor District. He is statedly a small farmer. He owns agricultural dry land admeasuring Acs.3.50 comprised in Survey No.279 in the said Village. He raised a mango garden in 1990. In the year 2000 he dug a bore well for watering the mango trees. It appears, in 2001 the Tahsildar dug a bore well in Government poramboke land for supplying drinking water to residents of Scheduled Castes/Scheduled Tribes Colony. It appears that the residents of Scheduled Tribes Colony gave a petition to the second respondent. They complained that due to drawal of water by the petitioner from his bore well dug near the Government bore well, the water supply in the Government bore well diminished, and therefore, they are not able to get adequate supply of water. In response thereto, the second respondent issued notice dated 10.03.2010 directing the petitioner to remove the water bore well within two days. The English translation of the said notice as translated by the petitioner reads as under. OFFICE OF THE TAHSILDAR, TAVANAMPALLI Roc.No.40/2010 Dated -03-2010 That you namely Chinnikrishnamnaidu & Babu R/o.Diguvatadakara Village, Tavanampalli Mandal, are by deepening your agricultural bore well situated at your agricultural lands very near to the Government bore well which is supplying drinking water to the SC colony Gallavalla vuru extracting water from your bore well daily for your mango garden. In view of that a representation was received from the villagers stating that no water is available in the Government bore well. Therefore, the Asst.Engineer, RWS was directed to verify the issue. The Asst.Engineer after verification clarified that no water is available in the Government bore well. In view of the above, you are here by directed to remove your motor from your bore well within two days from the date of receipt of this notice i.e., on or before 11.03.2010 failing which your bore well be seized and taken over by the Government. Earlier Tahsildar also seized your bore motor. Sd. Tahsildar, Tavanampalli 10.03.2010. In this writ petition the petitioner seeks invalidation of the said notice. This Court heard the Counsel for the petitioner and the Assistant Government Pleader for Revenue (Andhra Area). Both of them relied on the decision of this Court in P.Narayana Reddy v Mandal Revenue Officer[1]. In P.Narayana Reddy (supra) the question arose as to whether a notice is mandatory before the competent authority seizes a private bore well. This Court held that a notice is mandatory before seizure of the bore well which is dug in contravention of the provisions of the Andhra Pradesh Water, Land and Trees Act, 2002 (the Act). The Act prohibits digging of bore well near Government source of drinking water. In this case there is a dispute as to whether the Government bore well (for supplying water to colonies) was dug earlier or the petitioner dug the bore well earlier. In any event, if the petitioner’s bore well is dug near the Government bore well causing detriment to the supply of drinking water to the colony people, the bore well can be seized. But as held by this Court, a notice is mandatory. The relevant observations in P.Narayana Reddy (supra) are as follows. …Reading sub-sections (1) and (2) of Section 15 together, this Court is of the considered opinion that the requirement of notice would be read into sub-section (1) of Section 15 as well. It is well settled that a provision of law made by Legislature has to be interpreted in tune with principles of natural justice keeping in view the doctrine of fairness. Indeed under sub- section (1) of Section 15, drastic powers are conferred on the authority to close the pumping of the water, disconnect the power supply, seize any material or equipment used in connection with such extraction of water. It would not be possible to countenance any submission that Legislature never intended that the authority should act in fairness. Principles of natural justice being part of the fairness, it is also incumbent on the authority to issue a preliminary notice before passing a provisional order under sub-section (1) of Section 15. If such a requirement is not read into sub-section (1) of Section 15, in a given case, the Officer can as well disconnect power supply or close borewell… Rule 15 of the Rules authorizes any authority by a general or special order and in case of emergency so as to ensure supply of drinking water to local population take over such borewell in which event the owner of the borewell will be entitled to be compensated for the agreed loss. The only situation where without notice the borewell can be seized is to ensure the supply of drinking water to the local population in emergency. That being the position, the issuance of notice before passing provisional order under Section 15(1) of the Act must be held as mandatory requirement. In this case, the impugned notice/order was not issued in such circumstances, and therefore, unsustainable. This Court is also not impressed with the submission of the learned Counsel for the fourth respondent that the petitioner has effective alternative remedy. But Section 33 of the Act would not bar a writ petition as it is well settled that when principles of natural justice are violated or fundamental rights are infringed or the action is grossly against the provisions of the Act, it is not a bar to exercise the power under Article 226 of the Constitution of India (See Whirlpool Corporation v Registrar of Trade Marks, Mumbai AIR 1999 SC 22). In view of the decision referred to hereinabove this Court is of considered opinion that the impugned notice/order may be treated as notice, and the petitioner be granted ten days time to submit explanation to the second respondent, who shall conduct enquiry into various aspects that may be raised by the petitioner and pass appropriate orders immediately as there is an urgent need to maintain continuous adequate supply of water to the people of Scheduled Caste/Scheduled Tribe Colonies. The Writ Petition is disposed of accordingly. There shall be no order as to costs. ____________ (V.V.S.RAO, J) 26.03.2010 Note: Issue C.C by tomorrow. B/o. vs [1] AIR 2005 AP 181