THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.9566 of 2006 ORDER: The order under challenge in this writ petition is the order passed by the Joint Collector, Mahabubnagar – 1st respondent herein dated 4.2.2006 whereby the appeal preferred by the 3rd respondent was allowed, and the order of the Mandal Revenue Officer – 2nd respondent in sealing the bore-well of the petitioner was, in effect, upheld. The 1st respondent in his order records that, while the 3rd respondent had dug a bore well in June 2001, the petitioner had dug the bore well three years thereafter. In effect, the finding of the 1st respondent is that the petitioner herein had dug the bore well after the A.P. Water, Land & Trees Act, 2002 (A.P. Act 10 of 2002) came into force. The 1st respondent relied on Section 13 of A.P. Act 10 of 2002 to hold that the petitioner had not produced any evidence of obtaining permission from the competent authority specifying the distance, for drilling of his bore-well, from the existing bore-well of the appellant, and the depth of such drilling. The appeal filed by the 3rd respondent was, accordingly, allowed. Aggrieved thereby the present writ petition. Sri O. Manohar Reddy, Learned counsel for the petitioner, would submit that permission is required to be obtained for sinking a bore well under Section 10(1) and (2), and such permission is required only if the well which to be sunk is situated within a specified distance of a public drinking water source. Learned counsel would submit that, in as much as the 1st respondent had not recorded any finding that the bore-well dug by the petitioner was located within the distance specified in Section 10(1) i.e., 250 meters from a public drinking water source, the 1st respondent had erred in holding that the petitioner was required to obtain permission under the A.P. Water, Land & Trees Act, 2002. Sri Manik Rao, Learned counsel for the 3rd respondent, would submit that, in view of the finding of the Joint Collector that the petitioner had dug the bore-well in 2003 after A.P. Act 10 of 2002 came into force, the petitioner was required to obtain permission for digging the bore-well irrespective of whether water therefrom is to be used either for drinking water or irrigation purposes; the provisions of Section 13 and 15 of the Act must be read together and, on so reading, it is evident that permission is required to be obtained by the petitioner for digging a bore-well; and since the said bore-well was dug after the Act came into force, unlike the bore well dug by the 3rd respondent which was prior to the coming into force of the Act, the 1st respondent was justified in passing the impugned order. For the purposes of disposal of this writ petition it is wholly unnecessary for this Court to examine whether or not the petitioner had dug the bore-well prior to A.P. Act 10 of 2002 or thereafter, for even proceeding on the premise that the bore-well was dug by the petitioner after the Act came into force, the order of the Joint Collector would still be required to be set aside. In this context a few provisions of A.P. Act 10 of 2002 are required to be noted. Section 2(1) thereof defines ‘authority’ to mean the Andhra Pradesh State Water, Land and Trees Authority constituted under Section 3 of the Act. Section 2(2) defines ‘designated officer’ to mean an officer or any person so designated by the Authority to perform the functions under the Act. Section 2(12) defines ‘public drinking water source’ to mean a well from which the Government, or any local authority or such other authority as the Government may by notification specify, provides water to the public, and includes such well or any other drinking water source as may be notified by the authority. Section 2(14) defines the word ‘sink’, with all its grammatical variations and cognate expressions in relation to a well, to include any drilling, boring or digging of a new well or deepening carried out to an existing well. Section 2(22) defines ‘well’ to mean a well sunk for the search and extraction of ground water and includes a dug well, bore-well, dug-cum-bore-well, tube well, and filter point. Section 3 relates to the constitution of water, land and trees authority and, under sub-section (2) thereof, the authority consists of the Minister, Panchayat Raj, Rural Development and Rural Water Supply, or any other Minister nominated by the Chief Minister as the Ex-officio chairperson, three members of the State Legislative Assembly as ex-officio members, and various other officials and experts. Chapter III of the Act relates to ground water protection measures and under section 8(2), on and from the date of commencement of the Act, the owners of all the wells including those which are not fitted with power driven pumps and water bodies in the State, are required to register their wells/water bodies with the Authority in such manner as may be prescribed. Section 9 relates to water pumping in certain areas and, under sub-section (1) thereof, the designated officer, with the approval of the authority, may prohibit water pumping by individuals, groups of individuals or private organizations in any particular area, if in his view such water pumping in such area is likely to cause damage to the level of ground water or cause deterioration or damage to natural resources or environment for a period of not more than six months which, after review, may be extended for a further period of not more than six months at a time. Under the proviso to Section 9(1), no well shall be sunk in such areas as may be prescribed. It is not even the case of the 1st respondent that the well, which the petitioner had dug, is in an area where pumping of water has been or is being prohibited. Section 11 relates to over exploited areas and, under sub-section (1) thereof, the authority may, on the advice of the technical expert, declare a particular ground water basin as over exploited for a period of not more than six months which, after review, may be extended for a further period of not more than six months at a time. The order of the 1st respondent does not make any mention of the authority having declared the area, where the bore well was dug, as an over exploited area. Section 15 relates to closure of wells and, under sub- section (1) thereof, where it appears to the authority that any well has been sunk or is being sunk or water has been extracted or is being extracted in contravention of any of the provisions of the Act, the authority, or any officer duly authorized by it in this behalf, may enter upon that land, remove obstructions, if any, close the pumping of the water, disconnect the power supply, seize any material or equipment used in connection with such extraction of water and take any such action, as may be required, to stop such extraction and may, by order, require the owner or the person in possession of the well to close or seal-off the well at his own expense and, in such manner, as the Authority may specify in such order and such owner or person shall comply with such order. As noted hereinabove, the 1st respondent is not the authority under Section 3 of the Act. Further, under Section 15(1), even an officer duly authorized by the authority is empowered to close pumping of water or disconnect water supply etc, only in cases where any well has been or is being sunk or water is being extracted in contravention of any of the provisions of AP. Act 10 of 2002. Section 13 relates to distance and depth for sinking of wells and, thereunder, in order to curb unhealthy competition to tap water from deeper layers of ground water and to maintain ground water, the authority may issue directions specifying the distance for sinking of wells from the existing well and depth for such sinking and such other conditions in areas other than over exploited ground water basins as declared under sub-section (1) of Section 11, areas declared under Section 9, and near the drinking water sources specified under sub-section (1) of Section 10. The power under Section 13 is conferred on the authority specified in Section 3 of the Act. The said authority, which is a high level body chaired by a Minister with three public representatives and senior officials of the Government, is the authority empowered to issue directions specifying the distance for sinking wells from the existing well, the depth of such sinking, and such other conditions in areas other than those specified under Section 11(1), Section 9 and Section 10(1) of the Act. Even if we were to presume that the well dug by the 3rd respondent is prior to the Act coming into force, it is only where the authority, under Section 3 of the Act, specifies the distance for sinking of the well from the existing well or specifies the depth for such sinking or prescribes other conditions, would failure to adhere thereto amount to contravention of the Act. The order of the 1st respondent makes no reference to any such directions having been issued by the “authority” under Section 13 of the Act. As noted hereinabove neither has the 1st respondent held that the area in question is over exploited under Section 11(1) nor is it his case that it falls within the prohibition under Section 9 for, if that were to be so, all water pumping in the area ought to have been prohibited and not merely that of the petitioner. The only question which remains to be examined is whether the 1st respondent was justified in holding that the petitioner ought to have obtained permission under Section 10 of the Act. Section 10(1) has a non-obstante clause and, thereunder, having regard to the interests of the general public, to have supply of requisite drinking water from the drinking water source, no person, subject to sub-section (2), is entitled to sink any well in the vicinity of a public drinking water source within 250 meters in areas other than those covered under Section 11(1) of the Act. Since the 1st respondent has not held that the area falls under Section 11(1) of the Act we shall proceed on the premise that this is an area other than an area covered under Section 11(1) of the Act in which event prohibition of sinking of any well is only in the vicinity of a public drinking source within a distance of 250 meters. The proviso to Section 10(1) exempts sinking of a well for public drinking water purpose, and a hand pump for public or private drinking water purpose. The proviso does not apply since it is not in dispute that the wells in question were not dug for drinking water purposes. Under Section 10(2) any person who intends to sink a well for the purpose of irrigation within a distance, as specified under sub- section (1) of a public drinking water source, shall apply for permission to the authority in such manner and, on payment of such fee, as may be prescribed. The requirement of obtaining permission under Section 10(2), in cases where a well is being sunk for the purpose of irrigation, would arise only if it falls within the distance specified, under Section 10(1), of a public drinking water source. The distance specified in Section 10(1) of the Act is 250 meters and, as such, it is only if the well, which the petitioner has sought to dig, falls within 250 meters of a public drinking water source would he be required to obtain permission prior to such sinking. The 1st respondent has not recorded any finding as to whether or not the well sunk by the petitioner falls within a distance of 250 meters from a public drinking water source. Since this is the basic jurisdictional fact which is required to be determined by the 1st respondent, before holding that the petitioner ought to have obtained permission, the impugned order must necessarily be set aside and the matter remanded back to the 1st respondent who shall first determine whether the petitioner’s well falls within a distance of 250 meters from a public drinking water source as specified in Section 10(1). It is only thereafter can he decide whether permission ought to have been obtained by the petitioner under Section 10(2) of the Act. Even on a conjoint reading of Sections 13 and 15 of the Act it is only on a clear contravention of the provisions of the Act being made out would the 1st respondent be justified in upholding the order of the M.R.O. in having sealed the petitioner’s well. It is made clear that, in case the area in question is now held to be either excluded under Section 11 or prohibited under Section 9, the 1st respondent would not be precluded from prohibiting digging of a well, or for pumping water therefrom, as long as the area in question remains either a prohibited or an overexploited area. The writ petition is allowed to the extent indicated hereinabove and the matter is remanded back to the 1st respondent for his consideration afresh in accordance with law. It is made clear that this court has only examined the scope of the provisions of A.P. Act 10 of 2002 and the requirement of obtaining permission under Section 10 of the Act. The question, whether or not the petitioner and the 3rd respondent had dug the wells either before or after the A.P Act 10 of 2002 came into force, has not been examined as it was wholly unnecessary for the Court to do so. As the matter has been pending before this Court, for more than four years, it is but appropriate that the 1st respondent shall pass orders in accordance with law, after hearing both the petitioner and the third respondent at the earliest, in any event, not later than three months from the date of receipt of a copy of this order. No costs. ___________ 12-11-2010 asp