India -- Water Users Association v. The Gov of A.P.
W.P. 20323/2000(2002.02.06)(Illegal Irrigation Tank)
HIGH COURT OF ANDHARA PRADESH
Justice Sri V.V.S. Rao
Water Users Association, Cuddapah
The Government of A.P.
Writ Petition No. 20323 of 2000. Dated 06-02-2002
1. The Water Users Association, Thimmayagari Pally (for short 'the
Association'), is the petitioner. The Association is recognized under
the A.P. Farmers' Management of Irrigation Systems Act, 1997 (for short
'the Act'). The Association represented by its President has filed this
writ petition complaining the action of the respondents in proposing to
assign the land abutting/adjacent to Thimmaigari pally Irrigation Tank
(for short 'the Irrigation Tank'), in Cuddapah District, on "ek
saal" leases, as being illegal and contrary to A.P. Board Standing
Orders as well as the instructions issued by the Government from time to
2. The Irrigation Tank in question is the source for irrigating about
400 acres of land. The members of the petitioner-association own extents
of agricultural land, which form ayacut under the said Irrigation Tank.
It is alleged that the harijans of Thimmayagari village sent
representations to the respondents for grant of "ek saal"
leases (lease of Government waste land for one year), and that basing on
the said the representations, the respondents are proposing to assign
pattas. As the representations made by the Association requesting the
respondents not to grant "ek saal" pattas to any body, did not
yield any result, the Association filed the present writ petition.
3. On 25-10-2000, this Court while ordering notice before admission,
directed status quo as on that date to be maintained. The 7th
respondent-Mandal Revenue Officer, on behalf of himself and respondents
1, 2 and 5 to 6, has filed counter-affidavit. Therefore, with the
consent of the learned counsel for the parties, the writ petition itself
is taken up for final disposal at the stage of admission.
4. The 7th respondent, inter alia, in his counter stated that the writ
petition is premature as no lease was granted to any of the villagers.
The land or tank bed land, which is sought for assignment, is on the
higher level of the tank, and when 135 harijan families made
representations on 3-9-1997, the Assignment Committee passed a
resolution for grant of lease subject to change of the classification of
the lands. However, the proposals could not fructify as no orders
thereon were passed. Again in the year 1993, a proposal was mooted for
classification of land in question from tank bed poramboke to assessed
waste in an extent of about 204 acres, which is above the maximum water
level of the Irrigation Tank. The proposals sent by the Sub Collector
were forwarded to the Executive Engineer, Irrigation Department. The
Executive Engineer issued a "No Objection Certificate" on
29-5-2000 for assignment of tank poramboke land, which is above the
maximum water level of the Irrigation Tank. The Superintending Engineer
also gave similar "No Objection Certificates". The District
Collector, thereupon sent proposals to the District Irrigation Board for
grant of "ek saal" leases, the District Irrigation Board has
not taken a decision so far. It is stated that by grant of "ek saal"
leases, the area of the Irrigation Tank will neither get diminished nor
the full tank level get reduced.
5. The Superintending Engineer, Irrigation Circle, Cuddapah, has filed a
separate counter on behalf of the respondents giving technical details
as regards the location of the Irrigation Tank. It is stated that the
catchment area of the Irrigation Tank is three (3) Sq. Km., that it
receives water during rainy season, and its water retaining capacity is
very bleak, and the registered ayacut under the tank is limited to 78.15
6. The learned counsel for the petitioner-Association submitted that the
action of the respondents in proposing to assign tank bed and the lands
located within the vicinity of the tank, is illegal and contrary to the
provisions of BSO 15(4). BSO 15(4) upon which, the learned counsel for
the petitioner placed strong reliance reads:
BSO 15(4) Lands that may be assigned and that may not be assigned: -
(i) All lands at the disposal of the Government except those hereinafter
prohibited may be assigned. The assignment of lands shall generally be
free of market value except in the case of project affected lands in
which case market value shall be collected.
(ii) The assignment of the following classes of lands is prohibited:
(a) Poramboke (tank beds, foreshore of tank bed cattle stands, grazing
lands and reserved lands (reserved for depressed class members or for
any public purpose, such as schools, playgrounds, hospitals, maternity
centers, reading rooms and extension of house-sites, Panchayat purposes,
town sites and lands in the proximity thereof.
(b) Land which has been occupied for 18 months and adjoins a reserve
forest or an unreserved block of a square mile or more until the
Collector has consulted the District Forest Officer and considered any
objections, he may have to its assignment;
(c) Lands containing topes or valuable trees;
(d) Lands within cantonment limits;
(e) Lands reserved under Section 26 of the Forest Act;
(f) Lands within port limits;
(g) Lands near the sea coast within one furlong of high water mark of
(h) Water course porambokes, namely, margins of channels, streams etc.;
(i) Lands in the vicinity of aerodromes or landing grounds (i.e.) within
a belt of 200 yards;
(j) Lands containing minerals, quarries, etc.
(k) Padugais i.e. land within the flood bank of rivers, lanka lands not
held on ryotwari tenure, river accretions and reformed lands for which
the owners have ceased to pay assessment;
(l) Lands where "pati matti" is available and;
(m) Any other lands which are required or likely to be required for any
public or any special purposes necessary for the provision of amenities
of the community or connected with the development of the village.
Provided, however, that tank bed lands, foreshore lands and lands under
categories (g), (j), (k) and (m) above, if not immediately required or
if their occupation be not objectionable at present, may be leased with
a condition for resumption, when required for public purpose without
payment of compensation for improvements, if any effected.
7. A plain reading of the provisions of BSO 15 (4) would show that the
assignment of tank beds, foreshore of tank beds, cattle stands and
grazing lands and reserved lands, is prohibited.
8. As pointed out by the learned Additional Advocate General, however,
certain foreshore lands, if not immediately required and if their
occupation is not objectionable at present can be leased out. The
proviso to BSO 15(4) says that the lands near the sea coast within one
furlong of high water mark of the sea, the lands containing minerals
quarries etc., the land within the flood bank of rivers, lanka lands not
held on ryotwari tenure and any other land which is not required for
public purpose, can be leased out with a condition of resumption when
required for public purpose.
9. The submission of the learned Additional Advocate General that the
proviso to BSO 15(4) permits the assignment of land for agricultural
purpose if the land whose assignment is prohibited is not required
presently is without any substance. The proviso mentions two categories
of lands indicated at BSO 15(4)(ii)(g)(j)(k) and (m). The categories of
land mentioned in BSO 15(4)(ii)(e) is conspicuous by its absence.
Further, the categories of lands indicated in BSO 15(4)(ii)(a) refers to
poramboke lands reserved for depressed classes or for any public
purpose. The land in question, in respect of which proposals are afoot,
is classified in the revenue records, as tank poramboke. It squarely
falls with the category of lands mentioned in BSO 15(4)(ii)(a), even if
it is foreshore of tank bed. To my mind, this is the reason why on two
occasions, the proposals were not accepted, though lot of correspondence
took place between the Revenue Department and Irrigation Department.
Hence, it must be held that any land reserved for any public purpose,
cannot be assigned, whether or not it is a tank bed poramboke or
foreshore tank bed.
10. The life of a water body is not 100 years to commensurate with
normal life span of a man. The water body plays an important role in the
ecology and environment, besides having its economic purpose of
providing water for irrigation and drinking purposes. Any use of land,
which does not satisfy the principle of sustainable development, would
be detrimental to a water body. The apex Court in Vellore Citizens'
Welfare Forum v. Union of India1, accepting the theory of 'Sustainable
Development' as part of Indian Environmental Law, held:
The traditional concept that development and ecology are opposed to each
other is no longer acceptable. 'Sustainable Development' is the answer.
In the international sphere 'Sustainable Development' as a concept came
to be known for the first time in the Stockholm Declaration of 1972...
During the two decades from Stockholm to Rio 'Sustainable Development'
has come to be accepted as a viable concept to eradicate poverty and
improve the quality of human life while living within the carrying
capacity of the supporting ecosystems. 'Sustainable Development' as
defined by Brundtland Report means 'Development that meets the needs of
the present without comprising the ability of the future generations to
meet their own needs.
11. The Supreme Court in Mehta M.C. v. Union of India2, Rural Litigation
and Entitlement Kendra v. State of U.P.3 and Subhash Kumar v. State of
Bihar4 and this Court T. Ramakrishna Rao v. HUDA5 has indicated that it
is not only the duty of the State (executive), but also duty of the
Court to protect the environment and water bodies.
In Ramakrishna Rao's case, a Division Bench of this Court held:
Protection of the environment is not only the duty of the citizens but
also the obligation of the State and its all other organs including the
Courts. The enjoyment of life and its attainment and fulfillment
guaranteed by Article 21 of the Constitution embraces the protection and
preservation of nature's gift without which life cannot be enjoyed
fruitfully. The slow poisoning of the atmosphere caused by the
environmental pollution and spoliation should be regarded as amounting
to violation of Article 21 of the Constitution of India. The legitimate
duty of the Courts as the enforcing organs of the constitutional
objectives to forbid all actions of the State and the citizens from
upsetting the ecological and environmental balance. It is trite to state
that hygienic environment is an integral facet of the right to healthy
life and it would not be possible to live with human dignity without a
humane and healthy environment.
12. In Patanjali v. A.P.P.C.B.6, a Division Bench of this Court, in
which I was a member, held:
Protection of lakes of national importance from pollution, ecology,
encroachment etc., should be the primary concern of the State. In the
context of rapid globalisation and the eminent threat it posed to
environment, ecology vis--vis the rights of the citizens to have
pollution free environment, the right to water etc., recognized by the
Apex Court under Article 21 of the Constitution of India, the duty of
the Government to protect the lakes has assumed much more importance. It
is now well settled principle of law that Directive Principles of State
Policy under Part IV of the Constitution are enforceable under Article
21 of the Constitution of India. Under Article 48-A of the Constitution,
the State shall endeavour to protect and improve the environment and to
safeguard the forest and wild life of the country... At the same time,
it shall be the fundamental duty of every citizen of India under Article
51-A(g) of the Constitution of India, to protect and improve the natural
environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures.
13. The Courts have further gone to the extent of laying down whether or
not a person petitioning the Court has locus standi, when once the
matter is brought before the Court, the Constitutional Court has an
obligation to look into the statutory or non- statutory regimen and
strive in its endeavour to protect the environment and ecology.
It is not denied before me that as on today the land in question has not
been assigned by giving D-form patta or "ek saal" patta to any
one. Therefore, whether or not the Irrigation Department has objection,
the District Collector shall consider all aspects of the matter in the
light of the law laid down by the Supreme Court and this Court in the
judgements referred to supra, before granting any patta for agricultural
purpose in respect of tank poramboke land, foreshore poramboke land or
other banjar land, within the vicinity of an Irrigation Tank. Further,
under Section 17 of the Act, a duty is cast on the Water Users
Association to encourage avenue plantations, canal bunds and tank bunds
by leasing them. When once a water body or an irrigation system is
entrusted to a Water Users Association, the limited use to which the
canal bund or tank bed can be put to, is avenue plantations, which has
its own creative sustaining effect on the health of any Irrigation Tank.
The writ petition, is therefore, disposed of with the above observations
and directions. No costs.
Last modified 1/30/03 4:04:53 PM