THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION No.14908 of 2003 06.10.2009 Between: G.Narsing Rao, S/o.late G.Durgaiah and another … Petitioners and The Mandal Revenue Officer/Ex-Officio Chairman, Mandal Water, Land and Trees Authority, Musheerabad Mandal, Hyderabad and others … Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO WRIT PETITION No.14908 of 2003 ORDER: The petitioners are brothers. They are members of a joint family. Their father, Durgaiah, constructed a house bearing door Nos.12-11- 439 and 12-11-440, Warasiguda, Secunderabad, after obtaining necessary permission from Municipal Corporation of Hyderabad – now, Greater Hyderabad Municipal Corporation (GHMC). In 1988, petitioners dug a bore well in house bearing door No.12-11-440 for residential use. In 2003, there was no adequate rainfall. Therefore, they reactivated bore well on 28.5.2003 by drilling further. Many other house owners in the locality also reactivated bore wells. First respondent issued a show cause notice dated 03.6.2003 directing petitioners to explain as to why action should not be taken for digging bore well without permission in accordance with provisions of Andhra Pradesh Water, Land and Trees Act, 2002 (WALTA). First petitioner submitted explanation on 04.6.2003 denying that their bore well is affecting other bore wells in the locality. They also requested first respondent to permit them to continue to draw water from bore well. They also informed that there is no bore well in house bearing No.12- 11-439 and that no new bore well was dug and existing bore well in house bearing door No.12-11-440 was reactivated. They also filed W.P. No.12685 of 2003 for invalidation of show cause notice. This Court disposed of said writ petition on 01.7.2008 directing first respondent to pass reasoned order after considering explanation submitted by petitioners. On 06.6.2003, first respondent addressed Ground Water Department (GWD) for technical report. Assistant Hydrologist sent report on 14.7.2003 stating that petitioners are not selling water and that they did not violate WALTA. Be that as it is, even before report could be submitted by GWD, first respondent issued proceedings on 06.7.2003 ordering seizure of bore well. Mandal Revenue Inspector was directed to implement the order. Aggrieved by the same, present writ petition is filed. This Court while admitting writ petition on 23.7.2003 suspended impugned order. Respondents then moved WVMP No.3393 of 2003 for vacating interim order. The same was dismissed by this Court on 10.9.2004. Counter affidavit accompanying vacate stay application is filed by the Mandal Revenue Officer (MRO)–first respondent herein. Brief averments and allegations therein are as follows. Municipal Corporator representing area gave a complaint alleging that petitioners dug new bore well of 6½ diameter without permission of GHMC, that bore well was dug in footpath/road margin in front of premises bearing No.12-11-439 violating Section 10(3) of WALTA. MRO, after visiting plot, enquired into the matter and decided to take action against petitioners. The two houses are jointly owned by petitioners and that there is no boundary technically identifying those houses separately. The allegation that MRO addressed GWD is denied. It is stated that question of waiting for report of GWD does not arise when applicant filed application seeking permission for digging new bore well. Petitioners dug bore well without obtaining permission or even without making application for digging new bore well in violation of Section 10(3) of WALTA, and therefore, impugned order was passed to prevent petitioners from using bore well and to safeguard road margin. Learned Senior Counsel for petitioners and learned Government Pleader for Revenue (Telangana Area) made their submissions, to which reference would be made at appropriate place. This Court directed Government Pleader to produce relevant file. The same has been produced before this Court, which contains complaint given by Municipal Corporator, some of residents of locality, letter addressed by first respondent to GWD and panchanama conducted by Mandal Revenue Inspector on 14.7.2003 allegedly evidencing seizure of bore well. The case of petitioners that they dug bore well in one of the houses long back and that in 2003 when there was depletion of water level in the ground, they reactivated bore well, has been denied by MRO (now, Tahsildar). Learned Government Pleader contends that petitioners dug bore well in contravention of WALTA and it was dug on road margin. Before considering the case of petitioners, it is necessary to examine whether first respondent justified his action under WALTA. On 03.6.2003, Smt.P.Swaroopa Raviprasad Goud addressed a letter to first respondent stating that bore well of 6½ diameter has been dug in Government land near house bearing door No.12-11-439 and that the same is likely to adversely affect other bore wells in the locality and getting them dried up. At about the same time as many as 33 residents also gave complaint to Municipal Commissioner, Secunderabad, against petitioners stating that petitioners dug bore well upto a depth of 550 feet in premises of house bearing door No.12- 11-439. They did not allege that bore well is dug on road margin. Based on this, a show cause notice was issued on 03.6.2003, which reads as under. GOVERNMENT OF ANDHRA PRADESH MANDAL REVENUE OFFICE: MUSHEERABAD MANDAL Lr.No.B/6249/02 Date: 03.6.2003 NOTICE It has been brought to thenotice of this Authority that the Borewell has been digged in your Apartment/House/Premises without getting any permission from the Mandal Authority, which is against to the provisions of Water, Land & Trees Act 2002. Therefore you are hereby directed to show cause the reason for digging Borewell without permission, within 3 days after receipt of this notice, otherwise suitable action will be taken as per law (Act). Sd/- XXX MANDAL REVENUE OFFICER & EX-OFFICIO CHAIRMAN MANDAL AUTHORITY MUSHEERABAD MANDAL To Sri G.Narsing Rao, K.Mohan Rao, S/o. Late Durgaiah H.No.12-11-439, Warasiguda, Secunderabad – 500 061. (emphasis supplied) A reply was sent by petitioners on 04.6.2003. After receiving reply on 06.6.2003, MRO addressed GWD vide letter No.B/6249/2002, dated 06.6.2003, requesting for technical report. There is no allegation even in this letter that bore well is dug on road margin. After sending requisition to GWD, it appears, MRO asked Mandal Revenue Inspector to submit a report. After such inspection, Mandal Revenue Inspector submitted report. This also does not contain any allegation that bore well was dug on road margin. The matter was then placed before Mandal authority. Again there is no such allegation that bore well was dug in road margin. Mandal committee took a decision on 28.6.2003 to the effect that due to over exploitation of ground water in the locality, majority of local people wanted seizure of bore well by Mandal authority. Mandal committee also came to the conclusion that bore well was dug at house bearing door No.12-11-439/440, without obtaining permission. Presumably emboldened by decision of Mandal committee on 28.6.2003, MRO issued impugned order for seizure of bore well. From perusal of various documents referred to herein above, it becomes clear that there is a dispute as to whether bore well is dug within premises of petitioners or on the road margin. Having regard to complaint given by local people, report of MRO, agenda placed before Mandal committee, on probabilities, prima facie, this Court concludes that bore well was dug by petitioners within their premises and not on road margin. This Court also hastens to add that it is a matter for further enquiry by appropriate authority but for the purpose of this case, the same cannot be basis for the impugned order. Even assuming that bore well was dug in road margin, the inconsistency as pointed out hereafter has not been explained by first respondent properly. If a bore well is dug without permission or if a bore well is required to meet drinking water purpose of local people, it is competent for the authorities to seize bore well (see Section 12 of WALTA and Rule 15 of Andhra Pradesh Water, Land and Trees Rules, 2002). There is no provision in WALTA empowering MRO to seize a bore well if it is dug in the road margin. Different considerations would arise and action has to be taken under different legal regime. Secondly, a perusal of Sections 10 and 11 of WALTA would show that unless and until an area is notified barring digging of bore wells, WALTA has no application. It is also doubtful whether WALTA applies to bore wells dug exclusively for drinking water purpose. From this, an inference can be drawn that first respondent acted in haste presumably playing to the tunes of Municipal Corporator and local people and did not apply mind properly nor followed fair procedure. This has become very clear from unusual additional counter affidavit filed by present Tahsildar on 07.9.2009, though there is no such practice in writ proceedings. It is always open to parties to bring to notice of the Courts subsequent events, but such procedure does not contemplate allowing parties to file counter and additional counter as and when they like. Be that as it is, the very fact that present MRO filed counter affidavit allegedly based on her personal inspection would show that when impugned order was passed, MRO did not address question properly nor answered question properly. Whether WALTA applies to drinking water wells, whether the Government issued any notification under Section 11(1) of WALTA prohibiting digging of drinking water wells and whether petitioners dug bore well in road margin as alleged or within their premises, are relevant questions, which were ignored. The Courts have repeatedly held that emotions of people no doubt trigger administrative decisions but when decision maker deals with competing rights more caution is required and any order passed only to appease emotion of local people would certainly be illegal. Insofar as question whether bore well is dug by petitioners within their premises and whether it was dug in house bearing door No.12- 11-439 or 12-11-440 or whether petitioners reactivated existing bore well presumably dug before commencement of WALTA are all matters, which depend on factual enquiry. This Court is convinced that there is no proper fact finding enquiry involving officials of Revenue department, GHMC and Town Survey department. In a matter like this, notified street plan kept with GHMC would have been best piece of evidence to decide whether bore well was dug within road margin or within premises of petitioners. Such an enquiry was given a go-bye, and therefore, it is appropriate that the matter be enquired into thoroughly by first respondent as indicated herein above. While doing so, it is needless to mention that MRO should also take into consideration the report sent by Assistant Hydrologist on 14.7.2003, which curiously is not found in the file produced before this Court. This only shows that MRO did not even wait for report of GWD and passed order in great haste. All orders passed in haste may not be wrong but an order passed without waiting for technical report would certainly be suspect of Article 14 of Constitution of India. The impugned order on the face of it smells arbitrariness and irrationality. Therefore, this is liable to set aside. Accordingly, impugned order passed by first respondent is set aside. This order, however, shall not preclude first respondent to conduct enquiry personally involving officials of GHMC and Town Survey department with reference to street map, report of Assistant Hydrologist and notification if any issued by Government of Andhra Pradesh under Section 11 of WALTA. The writ petition is accordingly allowed with costs. ________________ (V.V.S.RAO,J) October , 2009 YS