IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY TUESDAY, THE TWENTY FOURTH DAY OF JUNE, TWO THOUSAND EIGHT ONLY WRIT PETITION No.15128 of 2005 Between: Malapati Chinna Venkata Naidu. … Petitioner And The Mandal Revenue Officer, Mudigubba Mandal, Anantapur District and two others. … Respondents Counsel for the petitioners: Sri K.Maheswar Rao. Counsel for the respondents: None for R.1 and R.2. Sri O.Manohar Reddy for R.3 This Court made the following: ORDER:- At the interlocutory stage the Writ Petition is taken up for hearing and disposal with the consent of the learned counsel for the parties. Heard Sri K.Maheswar Rao, learned counsel for the petitioner, Sri O.Manohar Reddy, learned counsel for respondent No.3. No one appeared for respondents 1 and 2. This Writ Petition is filed for a Writ of Mandamus to declare the action of respondent No.1 in seizing the petitioner’s bore well situated in Survey No.955-1, Mudigubba village and Mandal, Anantapur District, as illegal, arbitrary and unconstitutional, apart from being violative of Sections 15 and 36 of the Andhra Pradesh Water, Land and Trees Act, 2002 (for short “the Act”). The petitioner also sought for a consequential direction to respondent No.1 not to interfere with his possession and enjoyment of his bore well situated in the aforementioned Survey Number. The facts lie in a narrow compass. The petitioner dug a bore well on a part of the land admeasuring Ac.4.40 cents comprised in Survey No.955-1 of Mudigubba village and Mandal. On the complaint made by respondent No.3, respondent No.1 passed order dated 13-4-2005, whereunder he seized 5 HP motor with starter fixed to the said bore well. This action is assailed in this Writ Petition on the ground that respondent No.1 failed to give any notice to the petitioner before resorting to his said action and, hence, the same is illegal and in violation of principles of natural justice. No counter-affidavit is filed by respondents 1 and 2. In the affidavit filed by respondent No.3, along with his application to implead him as a party to this Writ Petition, he stated that the enquiry conducted by respondent No.1 revealed that the petitioner dug the bore well at a distance of 118 meters from his bore well and that the same is in violation of the provisions of the Act, being within the prohibited distance. He, thus, sought to justify the action of respondent No.1 impugned in this Writ Petition. At the hearing, Sri K.Maheswara Rao, learned counsel for the petitioner, relied on the judgment of this Court in P.Narayana Reddy Vs. Mandal Revenue Officer, Morthad Mandal, Nizamabad[1] in support of his contention that the petitioner is entitled to a prior notice before resorting to the action of seizing the equipment by respondent No.1 under Section 15(1) of the Act. This Court considering the said provision held as under: “5. A plain reading of section 15 would show that when it is brought to the notice of the authorities and that the provisions of the Act have been contravened in sinking a bore well, a provisional order has to be passed requiring owner or the person in possession of the well to close or seal off the well. When the provisional order is not complied with, the authority under the Act may then have to issue the owner or person due notice in that behalf and pass order to close or seal off the well. The requirement of issuing notice is conspicuous by its passing under Sub-section (1) of Section 15. Though Sub-section (2) of Section 15 specifically require the authority to give a notice to the owner or the person using the bore well before passing order of closure or seizure. 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 bore well. In this connection, a reference may be made to Rule 15 of the Rules, which reads as under: 15. Taking over of well to ensure drinking water: (1) The Authority may by a general or special order shall authorize the Designated Officer to identify such wells as required to ensure supply of drinking water to local population and shall take over such wells. (2) On identification of the wells, the Designated Officer shall serve or cause to serve an order of requisition on the owner of the well specifying the period of such requisition. The Designated Officer for sufficient reasons, may extend such period of requisition. (3) On requisition, the owner of the well shall not draw water for any other purpose other than drinking for his own use. (4) If the well so requisitioned is the only source of irrigation and if the owner is solely dependent on agriculture for his livelihood, the owner shall be compensated for the loss of livelihood. The quantum of compensation shall be decided by the District Collector in consultation with the agriculture department based on the crops raised during the same period in the previous three years by the owner utilizing the water from the well. 6. Rule 15 of the Rules authorises 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 bore well in which event the owner of the bore well will be entitled to be compensated for the agreed loss. The only situation where without notice the bore well 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[2]). A perusal of the impugned order does not show that the petitioner was given a notice before seizing the equipment. It is not the pleaded case of the respondents that such a notice was issued. In view of the authoritative pronouncement of this Court in the above- reproduced judgment, the impugned action of seizure of the motor and starter of the petitioner falls foul of Section 15(1) of the Act. For the above-mentioned reasons, the Writ Petition is allowed. This order, however, does not preclude respondent No.1 (presently Tahsildar) from initiating action afresh, if he so desires, in accordance with law, in the light of the observations contained in this order. --------------------------------------- C.V.NAGARJUNA REDDY,J 24-6-2008 MNR [1] ) 2004 (6) ALD 653 [2] AIR 1999 SC 22