ORDER
1. This is yet another story of a silenced river.
2. The Tungabhadra river, a major tributary of River Krishna, derives its name from its two tributaries viz., Tunga and Bhadra, both of which rise in the Varaha Parvata in the Western Ghats of Kamataka. The region through which the Tunga and Bhadra flow, has rich and well developed forest resources. After running widely different courses, Tunga and Bhadra unite at Kudali 13 Kms., below Shimoga, to form the river, Tungabhadra. The river is 644 Kms. long and joins river Krishna at Sangameshwaram below Kurnool town at an altitude of + 264M., in Andhra Pradesh. The major portion of the river runs through the State of Kamataka and traverses only 137 Kms in Andhra Pradesh State. The total catchment area of the river is 71417 square kilo meters. During the regime of the Vijayanagara Empire (14th Century), a number of anicuts were built across the river and irrigation channels were provided on both sides of the river.
3. A multipurpose project was constructed across the river, Tungabhadra during the year 1945-56 near Mallapuram village in Kamataka State. The scheme consists of a dam across Tungabhadra river 264 Kms., below the confluence of Tunga and Bhadra river near Hospet town and canals (Low level and High level) on both sides of the river for providing irrigation facility to the areas in Andhra Pradesh and Karnataka States. About 120 Kms., down stream of Tungabhadra dam, an anicut across the river, to divert water into the left bank canal for providing irrigation facility to the drought prone areas in Andhra Pradesh and Kamataka States has been constructed during 1949-1958 and the scheme is known as 'Rajolibanda Diversion Scheme' (for short 'RDS'). The catchment area of Tungabhadra river at Rajolibanda anicut site is 61,427 sq.Kms., of which 28,180 sq.Kms, is intercepted by the Tungabhadra dam, leaving a free catchment area of 33,247 sq. Kms, below Tungabhadra dam upto the RDS anicul site. Rajolibanda Diversion Scheme is an interstate project consisting of an anicut across Tungabhadra River, the left bank of anicut together with head works is in the limits of Rajoiibanda village, Manvi Taluk of Raichur District, Karnataka State and it is 48 Kms. from Raichur District headquarters. The right bank of the anicut is in the limits of Kandukoor village, Adoni Taluka, Kurnool District, Andhra Pradesh State. This scheme was conceived for diverting 17.1 TMC of water into 143 Km., long left flank canal for the benefit of fifteen villages of Manvi Taluka of Raichur District (Old Hyderabad State and now in Karnataka State); eight villages of Gadwal Taluka; 67 villages of Alampur Taluka in Mahaboobnagar District and four villages of Kurnool taluka of Andhra Pradesh State.
4. This work was started by the erstwhile Government of Hyderabad in 1947. The scheme was conceived as a purely protective work designed to banish the constant threat of famine from the arid and drought stricken taluks of Manvi, Gadwal and Alampur and thereby pave the way for the prosperity and development of these backward areas.
5. In 1969 the Government of India Constituted ' The Krishna Water Dispute Tribunal (for short 'KWDT')' for adjudication of the water dispute regarding the inter-State river Krishna. The Tribunal gave its 'Award' in 1973, and 'further report' giving explanation or guidance on certain matters referred to it was presented by theTribunal in 1976. As per the Award of the Tribunal, RDS will divert water from the flow of the River Tungabhadra and also get assistance by way of regulated discharge from Tungabhadra dam. It has also stipulated that the benefits of utilisation under RDS be shared between the States of Karnataka and Andhra Pradesh, and the details are as follows:
KARNATAKAA.P.TOTAL
(1)Allocation of water1.20TMC15.90TMC17.10TMC(2)Aya cut5,880Acs.87,500Acs.93.380Acs.(3)Length of main canal43.00 Km100.00 Km143.00 Km(4)Distributories12 Nos.47 Nos.59 Nos.
These details are gathered from the National Water Management Project report on Rajolibanda Diversion Scheme.
Obviously enormous funds have already been spent on the project. The project receives as usual, the aid from the World Bank, like all such similar projects. Like all other projects, it was intended to be a potent symbol of both patriotic pride and the conquest of nature by human ingenuity. Provider of, water and food; tamer of floods; greeners of the desert and guarantor of national independence.
6. But can it be said that the scheme has achieved its purpose, which is intended to be a protective unit to serve the drought proned sections and most backward areas in the State of Andhra Pradesh?
7. Let us see the report prepared by the National Water Management Project. 'In summary, the scheme is a classic illustration of the difficulties of serving mixed localisation areas according to design Head enders have not only developed paddy especially in Khariff, but also in Rabi irrespective of localisation status and are frequently able to double crop, tail enders -both along the main canal and down the distributary and normally unable to grow paddy even if localised wet. They often receive inadequate supplies to support a reasonable I.D. Crop even though the area is classified as irrigated, and over large areas fail to receive any water at all. This situation is aggravated by the complications of an Interstate Project and by the apparent short fall in Andhra not receiving its due allotment. Since there are very few tanks or wells in the command (the potential for ground water appears limited although it should be investigated), the tail enders though nominally in the command area frequently confined to a rainfed or almost rainfed crop under an extremely uncertain and low rainfall regime.'
8. With this background, let us now turn to the grievance of the petitioners in this batch of writ petitions, who are all cultivators owning different extents of lands under the Anicut. They are aggrieved by the decision of the Government of Andhra Pradesh vide G.O. Ms. No.202, Irrigation & CAD Department (O&M;), dated 25-6-1988. According to the petitioners, the impugned action of the respondents is contrary to the provisions of the Andhra Pradesh (Telangana Area) Irrigation Act, 1357 Fasli. No procedure under the said Act has been followed and no notice as such has been issued by the respondents before taking the impugned decision, is the submission made in the writ petitions. It is the case of the petitioners that the whole scheme relating to supply of water and categorisation of lands under the Ayacut are given a go-bye under the impugned Governmental Order.
9. Let us now briefly notice the facts, as stated in WP No.10837 of 1991. In this writ petition the petitioners own lands under distributary No.25 and SD. No.3. Those lands fall under the first category, ear-marked and localised as Khariff wetlands ever since 1959. The second category of lands are under the distributory No.25 and SD No.5 of the same Pedda Tandrapadu village and they have been ear-marked and localised as Irrigated dry lands and the water supply is for Rabi season. These lands of the petitioners have been excluded and deleted from the water supply under RDS.
10. The simple contention putforth by the petitioners is that they are entitled for the supply of water for Khariff season to cultivate their lands as wet lands under the said sub-distributory 3 of Distributory No.25 and that they are also entitled for supply of water for Rabi season under sub-distributory 5 of Distributory 25. But, according to the scheme framed under the impugned Governmental Order, altogether different guidelines were provided. For instance, where Khariff and Rabi operation is allowed in first stage in order to ensure operation convenience the Khariff and Rabi blocks should be made contiguous by changing the character of the land itself. The lands of the petitioners are deleted from wet cultivation. According to the petitioners, these lands are in upper reach of the sub-distributory canal and contiguous, but they are excluded from the water supply and from the category of wet lands itself. While lower reaches lands which are not even contiguous are preferred for continuation of water supply as wet lands. In, nut-shell, it is the submission of the petitioners that entire scheme of localisation is altered. In that process some of the lands which are being irrigated as irrigated dry lands are now being supplied water for raising wet crops by deleting the lands of the petitioners, which were hitherto cultivated as wet lands. Some of the lands were deleted from service altogether.
11. In WP No.8677 of 1990, it is specifically stated that the proceedings of the first respondent bringing about the change in the cropping pattern, which has been existence for the last thirty years, has adversely effected the interest and rights of the ryots. The decision has not been preceded by any notice. The Government has not followed any law, but unilaterally changed the cropping pattern and adversely effecting the proprietary rights in the lands. It is alleged that the entire extent of lands under various distributories had been now converted into irrigated dry lands and the irrigated dry lands are converted into wet lands. It is also submitted that such a change may have far reaching implications on the very holding of the lands by the petitioners and they may get adversely effected under the provisions of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.
12, In the counter-affidavit, it is, inter alia stated that the cropping pattern as per the original scheme and the localisation aim is to provide water for Khariff wet to an extent of 14,215 Hectares amounting to 40% of the localised area; and extent of 19,332 hectares as Rabi Irrigated dry constituting 55%. It is stated that 1,863 hectares is localised as Perennial (sugar cane) constituting 5%. In principle, paddy Ayacut of 14,215 hectares is to receive water only in Khariff and closed in Rabi. Similarly the Rabi Ayacut of 19,332 hectares would receive water only in Rabi and closed in Khariff. It is the case of the respondents that the impugned policy decision was required to be taken for the reasons beyond their control and at any rate not with an intention to change any cropping pattern or localisation of the lands forever, as alleged by the petitioners. It is only a temporary measure and that too under the extraordinary circumstances beyond the reach and control of the State. It is stated that against the KWDT allocation of 15.90 TMC, water that is realised in the last twenty two years is only 9.60 TMC every year on an average. The deficiency in canal design is a major constraint, apart from the Ayacutdarsin Karnataka drawing more water than their allocation. Under those circumstances, the area that is so far irrigated did not exceed 21,229 hectares against the localised ayacut of 35,410 hectares. As such certain remedial measures have been devised by the Government of Andhra Pradesh and the Government of India by formulating National Water Management Project Scheme. The project report is prepared by a joint team of Government of India, World Bank and the Government of Andhra Pradesh. The team members having inspected the canal system and having held discussions have come up with the following propositions:
Stage-I: -- Duly accepting the limitations of water, it is proposed to restrict the Ayacut matching the quantum of receipt of water.
Stage-II:--It is proposed to increase the carrying capacity of main canal to designed capacity. This is a joint venture of Karnataka and Andhra Pradesh Governments which is expected to take considerable time.
According to the counter-affidavit, despite the fact that the State received less water than what is entitled to and the average irrigation per annum at 20,600 hectares only, the proposals contemplating irrigation of 24,578 hectares was made, thereby increasing ayacut of 3,978 hectares which constituted 16% of the average area irrigated sofar. It is also intended and proposed to provide water to the tail end areas for irrigation, in particular during Rabi second crop, from distributory 29 onwards. That is the purpose sought to be achieved by the impugned Governmental Order.
13. It is not necessary to refer in detail the technical data and other particulars furnished in the counter affidavit. It is stated that the proposals for implementation of new cropping pattern was discussed and a decision was taken to implement the above scheme in Irrigation Development Board (IDE) Meetings held on 30-6-1988; 13-7-1989 and 15-4-1990. The IDB consists of Officials, non-officials and representatives of the people. The implementation of the new scheme was widely published in the local new papers and hand bills were also circulated in the locality before issuing the impugned notification by the District Collector. It is, however, sought to be explained that as per the guidelines prescribed by the World Bank Mission, one crop under one distributory with service area of 1000 hectares and two seasonal, if the service area exceeds 1000 hectares in order to ensure operational convenience, the Khariff and Rabi blocks are made contiguous by changing the status of few sub-distribtitories from Wet to irrigated dry and vice-versa. Paddy is ihe predominant crop grown in the head reaches from D/12A to D/28 though the soils are suitable for Irrigated dry cultivation. In D/25, from SDI to SD9 are considered Khariff Wet and SDIO to TEFC are considered Rabi ID by restricting the service areas, under State-I proposals, under each distributory which includes D/25 also. In nutshell, it is submitted that some Irrigated Dry lands have been converted into wet lands during Khariff Season and this is a purely temporary measure and it will be altered after State II project is implemented. It is, however, stated that implementation of the new operational plan and the distributory wise cropping pattern is accepted by the Government as advised by the World Bank, as the scheme is aided by the World Bank.
14. Sri N. V. Ramana, the learned Additional Advocate-General submits that the respondents Government formulated the impugned scheme under compulsion and in the peculiar facts and circumstances; the main reason being non availability of water. The State for the reasons beyond its control had not received the full quota of water, as stated above.
15. It is true that there is one very well informed section in the society having its reservation about the very mode and method of these type of developmental activities and utilisation of Natural resources like water by constructing dams. That section believes that a reservoir is the antithesis of a river-the essence of a river is that it flows, the essence of a reservoir that it is still. A wild river is dynamic, forever changing. A dam is monumentally static, it tries to bring a river under control. A dam traps sediments and nutrients, alters the river's temperature and chemistry, and up sets the geological processes of erosion and deposition through which the river sculpts the surrounding land (See Silenced Rivers; The Ecology and Politics of Larger Dams, by Patrick Mc Gully). But, there may be a section which subscribes to the view that Massive dams arc more than simply machines to generate electricity and store water. For them such dams are concrete, rock and earth expression of the dominant ideology of the technological age, symbols of economic development. The administration and official planners may still believe, that the Dams, Reservoirs are real 'temples, mosques and Gurudwaras'. For them Dams and Development may mean the same. Experts, Social Scientists and Environmentalists may have visualized in their wisdom as to the exact nature of the problems that the projects like the one on hand may encounter.
16. In fact, the very report on hand prepared by an expert team after more than thirty five years of commissioning of the project makes one to introspect. Concluding observations in the Report are telltale.
'Although the system operates on continuous basis down to the outlets excess withdrawal at the head reaches, tosses in the system, varying outlet command sizes, make equitable Distribution very difficult to achieve. Consequently the farmers have resorted to breaking the outlet shutters etc., leading to fast deterioration of the whole system.'
17. These are the days of globalisation. Policies, Schemes, developmental activities, health programmes. Education polices and economic reforms are suggested, formulated and encouraged by the funding agencies, more particularly by the World Bank. Such suggestions, formulations may have impact and influence on the liberties, culture and the ethos of people of a sovereign democratic republic and may require a deeper study by the knowledgeable and informed sections of the society.
But what is the Role of the Courts?
Evidently, the impugned decision of the Government is in the nature of a policy and appears to have been taken due to variety of circumstances. This Court cannot refuse to accept the plea putforth by the respondent that the State of Andhra Pradesh could not receive so far its due share of allotment of water by the Tribunal. That factor appears to have played a major role in formulating the policy. This negatives the case of the petitioners that the State Government is refusing to supply water inspite of its availability in abundance. It is not a judicially manageable situation where any direction could be given to the Government to device an alternative process. Such a course is not permissible.
18. A large latitude would have to be allowed to the executive to decide for itself as to what would be the reasonable decision and the economic soundness of the proposed development plan undertaken by the State. It cannot be a subject matter of debate in a judicial review proceedings as long as such plan is not contra constitutional. The Courts will be reluctant and perhaps ill equipped to investigate into merits of such complex formulations. In deciding the policies theexecutive is entitled to take legitimate political and economic considerations into account. The executive is fully entitled while making such decision to take into account such consideration, such as promotion of regional stability, good Government, and its commercial interest. A particular decision taken by the executive may be right or wrong. The wisdom behind such decision cannot be judicially reviewed. (See: Andhra Pradesh Dalit Mahasabha v. Government of Andhra Pradesh, : 1999(2)ALD275 ).
19. A Division Bench of this Court had an occasion to consider more or less a similar issue concerning the supply of water, and observed:
'The State is at liberty to effect modification in the mode of supply, channel of supply, manner of supply and other working conditions for supply. The appellants' right is only limited to the extent of the quantity of water to be supplied as stipulated in the undertaking, which the State reiterates even before us that requisite water as stipulated in the undertaking would be supplied to Zone VIII i.e., equivalent to water which was supplied to Zone VII. It is for the State to decide as to how the extra water received has to be supplied and, to which Zone. The Court cannot substitute its opinion for the same. (See: K.Narsa Reddy v. Government of Andhra Pradesh, WA No.590/99, dated 16-4-1999.
20. It may be true that the respondents may not have issued individual notices to all the ayacutdars whose interest was likely to be adversely effected by the impugned policy decision; but the very fact situation would indicate that it may not be possible to issue individual notices to all those persons. It appears from the record that the issue has been discussed in various Forums, including the Irrigation Development Board (IDB) Meetings and wide publicity appears to have been made. Under those circumstances, it is not possible to set aside the policy decision of the Government on the ground of the decision being violative of the principles of natural justice. At any rate, as stated in the counter affidavit, the present policy decision is taken only as a temporary measure.
21. It may be required to notice that these writ petitions were filed in the years 1990 and 1991. The petitioners herein were getting water as claimed by them under the interim directions of this Court. However, it is pointed out that an extent of 8,600 acres spread over fifteen villages alone is the subject-matter of this writ petitions and the respondents were able to supply water under the interim directions of this Court only for the said extent. It would mean that the respondents are in a position to manage the supply of water to an additional extent of 8,600 acres over and above what is contemplated by the policy formulated in the impugned Governmental Order. It is also required to notice that the counter affidavits were sworn on 11-10-1991. The Court is not acquainted with the present state of affairs and the subsequent developments. The Court is not aware whether there is any improvement in the situation which may enable the State Government to consider the request of the petitioners and other similarly situated cultivators. Nothing is brought to the notice of the Court as to whether this matter has been reviewed subsequently in any of the Irrigation Development Board meetings.
22. For all the aforementioned circumstances, I consider it appropriate to direct the first respondent-Government to consider as to the possibility of reviewing its policy decision notified in the impugned Governmental Order. It shall consider the request of the ayacutdars and examine the matter afresh as to whether there is anypossibility of making any improvement in the matter of supplying water over and above what has been notified under the impugned Governmental Order. For the said purpose, the Government may invite representations from the Ayacutdars, elected representatives of the people and from all such others as the Government may in its discretion think fit to invite. An appropriate decision in this regard shall be taken by the Government within four months from the date of receipt of a copy of this order. Opinion of the Irrigation Development Board may also be solicited.
23. I may, however, hasten to add that this Court has not expressed any opinion whatsoever on the merits of the case as to in what manner the Government has to formulate or reformulate its policy. The Court hopes and trusts that such policy formulation will be in the larger public interest.
24. This batch of writ petitions are accordingly disposed of. There shall be no order as to costs.