Kalrayan Hills Tribal Vs. Kalrayan Hills Panchayat Union and Others - Court Judgment

Excerpt:
constitution - digging well - articles 21 and 226 of constitution of india - petitioners sought to restrain respondents from digging well on ground that it may affect water supply to petitioner for agricultural purposes - expert opinion showed that digging of well by respondent not to affect other wells situated in area - mere apprehension cannot be ground to allow petition - report submitted by private person at instance of petitioner not to be relied upon - authorities rejected petitioner's objections after applying mind - petition dismissed. - - in spite of it, the respondents have proposed to call for tenders to dig well. after a thorough survey, the hydro geologist recommended three sites, and among them, two sites are located at kachirayapalayam and the third site located at pottiyam village. for knowing the well concentration, a statement has been obtained from ihe revenue village officer of the kottiyam village. as perthat there is no irrigation well within the radius of 150 metres and three numbers of irrigation dug wells are noted between radius of 150 to 300 metrs. therefore allegations made are not found reasonable while considering the favourability of the areas, i submit herewith the area map indicating the proposed site with existing well in the vicinity of 150 metre to 300 metres and the statement for favour of further necessary action. the above facts will clearly prove that the authorities have applied their mind with respect to the objections of the petitioner-association and decided to dig the wells in the proposed place.order1. the above writ petition is filed praying for issue of writ of certiorarified mandamus to quash the orders of the respondents 2 and 3 dated 4-10-1996 and 3-5-1996 respectively and direct the respondents 1 to 5 not to dig giantwells in pottiyam village for supply of water for kallakurichi sugar mill-ii, kachirapalayam.2. the petitioner is a registered association having more than 200 members of small agricultural land-holders doing agricultural operation in pottiyam village. the sixth respondent proposed to about kallakurichi co-operative sugar factory-ii in the year 1994. for the sugar factory, preliminary work of construction of buildings is going on. they proposed to dig giant wells for getting water supply to the said factory. the petitioner-association immediately knowing the said proposal raised objections stating that the proposal of digging giant wells would affect for the members of the association in getting water for their agricultural purpose. according to the petitioner, they pointed out that just three kilometers away from the sugar factory, gomugi dam is in existence and plenty of water is also available at all times, from where the sugar factory can get water. even according to the petitioner, the fourth respondent enquired about the representation made by the petitioners on 9-4-1994 and the petitioner-association appeared before the fourth respondent and explained the hardship to be faced by the members of the petitioner-association. the fourth respondent seems to have submitted a report to the fifth respondent. in spite of it, the respondents have proposed to call for tenders to dig well. hence, the petitioner has filed the above writ petition.3. the respondents 2 and 6 filed a counter-affidavit in w.m.p. no. 21998 of 1996 which covers the same facts mentioned in the affidavit. so, the said counter is treated as counter-affidavit filed in the main writ petition. according to the respondents, on the basis of the technical advice, the adminisirative authorities of the mill requested the executive engineer, public works department, ground water division, cuddalore, to conduct a detailed survey in four villages, namely, parigam, pottiyam, kachirapalayam and vadekanandal. similar request was made to the chief engineer. public works department, ground water division, chepauk, madras-5. on the basis of the above request, the ground water division deputed a hydro geologist to conduct a survey in the said villages. after a thorough survey, the hydro geologist recommended three sites, and among them, two sites are located at kachirayapalayam and the third site located at pottiyam village. on the basis of the above recommendations, the chief engineer, p.w.d., ground water division in his letter dated 9-9-1993 offered a technical advice as to the proposed location of the two wells and thereafter only the respondents took steps to implement the project to dig wells in pottiyam village. at this stage, according to the respondents, the proposed location of the two wells are also selected in strict accordance with the distance rule. the respondents have denied that the proposal of digging two wells violates article 21 of the constitution of india.4. the learned counsel appearing on both sides have reiterated the averments made in the affidavit and counter-affidavit. the grievance of the petitioner is that if the respondents are allowed to proceed with the digging up of the wells they cannot get enough water for their agricultural purpose and to raise that objection, the petitioner has mainly contended that in spite of their objections and the report of the fourth respondent, respondents 2 and 6 have proceeded with the project, ignoring the same. in this case, the petitioner sought to rely on the report of one k. indirajithu, geologist, according to him, in the case of excessive drawal of water for utilization of the sugar mill, the 150 wells located in the village undoubtedly become dry with heavy non percolation of water. contrary to this argument, the respondent sought to rely on the report of the executive engineer, p.w.d., ground water division, cuddallore. i feel it is necessary to extract the said report, which is as follows :--'the area proposed for sinking two wells is hydrogeologically and geomorphologically favourable for ground water development. the area is covered by valley fills of loose materials comprising of gravels, febbles and cobbles. the formation is favourable for ground water development. the details of other favourable conditions are already furnished in detailed report submitted in this office letter no. 156 ce/f. 1019/ 82/jdo-i dated 30-8-93 and approved in chief engineers no. g8/13599/consul./k. sugar/92 dated 9-9-93. for the allegation made now, the area has been inspected for knowing the concentration of irrigation dug wells, the spacing between them and the existence of iribal people in this area. for knowing the well concentration, a statement has been obtained from ihe revenue village officer of the kottiyam village. as perthat there is no irrigation well within the radius of 150 metres and three numbers of irrigation dug wells are noted between radius of 150 to 300 metrs. from the proposed location (mapenclosed). the spacing fixed for the dug wells by the nabard is 150 metres. therefore the spacing condition and less concentration of wells in this area are favourable for the sinking of proposed wells. regarding tribal people existence with vicinity of proposed site is only one which comes within the radius of 300 metres. the details of wells are furnished in the statement enclosed.the villages namely mayambadi, malliyambadi and parigam are located away from the proposed site about 5 k.m on the higher elevations on west, north west and northern side respectively of the proposed site. therefore allegations made are not found reasonable while considering the favourability of the areas, i submit herewith the area map indicating the proposed site with existing well in the vicinity of 150 metre to 300 metres and the statement for favour of further necessary action.'in view of the abovesaid report, the report submitted by a private person at the instance of the petitioner-association cannot be relied on. the respondents have established that the objections raised have been considered in detail and the experts in the field have given report stating that digging of the wells will not affect the wells situated within the radius of 150 metres. the location of the wells are only in accordance with the report of the chief engineer, ground water division, madras-5, i.e., the third respondent, dated 9-9-1993. regarding the same, there is no dispute. moreover the wells are not situated on the river banks and they are away from the same. the above facts will clearly prove that the authorities have applied their mind with respect to the objections of the petitioner-association and decided to dig the wells in the proposed place. while so, this court cannot sit on appeal on such decision, that too, merely on the basis of apprehension on the part of the petitioner-association. the experts in the field have decided that the digging of wells wilt not affect the wells situated in and around the proposed site, and they have given the detailed report to that effect. so, i do not find any valid reason to prevent the respondents from digging the wells in the proposed place. hence, this writ petition is liable to be dismissed.5. in the result, this writ petition is dismissed. no costs. consequently, in w.m.p. nos. 21998 of 1996 and 591 of 1997 and 492 of 1997, no further orders are necessary and they are closed.6. petition dismissed.

Judgment:
ORDER

1. The above writ petition is filed praying for issue of writ of certiorarified mandamus to quash the orders of the respondents 2 and 3 dated 4-10-1996 and 3-5-1996 respectively and direct the respondents 1 to 5 not to dig giantwells in Pottiyam village for supply of water for Kallakurichi Sugar Mill-II, Kachirapalayam.

2. The petitioner is a registered association having more than 200 members of small agricultural land-holders doing agricultural operation in Pottiyam village. The sixth respondent proposed to about Kallakurichi Co-operative Sugar Factory-II in the year 1994. For the sugar factory, preliminary work of construction of buildings is going on. They proposed to dig giant wells for getting water supply to the said factory. The petitioner-association immediately knowing the said proposal raised objections stating that the proposal of digging giant wells would affect for the members of the association in getting water for their agricultural purpose. According to the petitioner, they pointed out that just three kilometers away from the sugar factory, Gomugi Dam is in existence and plenty of water is also available at all times, from where the sugar factory can get water. Even according to the petitioner, the fourth respondent enquired about the representation made by the petitioners on 9-4-1994 and the petitioner-association appeared before the fourth respondent and explained the hardship to be faced by the members of the petitioner-association. The fourth respondent seems to have submitted a report to the fifth respondent. In spite of it, the respondents have proposed to call for tenders to dig well. Hence, the petitioner has filed the above writ petition.

3. The respondents 2 and 6 filed a counter-affidavit in W.M.P. No. 21998 of 1996 which covers the same facts mentioned in the affidavit. So, the said counter is treated as counter-affidavit filed in the main writ petition. According to the respondents, on the basis of the technical advice, the adminisirative authorities of the mill requested the Executive Engineer, Public Works Department, Ground Water Division, Cuddalore, to conduct a detailed survey in four villages, namely, Parigam, Pottiyam, Kachirapalayam and Vadekanandal. Similar request was made to the Chief Engineer. Public Works Department, Ground Water Division, Chepauk, Madras-5. On the basis of the above request, the Ground Water Division deputed a Hydro Geologist to conduct a survey in the said villages. After a thorough survey, the Hydro Geologist recommended three sites, and among them, two sites are located at Kachirayapalayam and the third site located at Pottiyam village. On the basis of the above recommendations, the Chief Engineer, P.W.D., Ground Water Division in his letter dated 9-9-1993 offered a technical advice as to the proposed location of the two wells and thereafter only the respondents took steps to implement the project to dig wells in Pottiyam village. At this stage, according to the respondents, the proposed location of the two wells are also selected in strict accordance with the distance rule. The respondents have denied that the proposal of digging two wells violates Article 21 of the Constitution of India.

4. The learned Counsel appearing on both sides have reiterated the averments made in the affidavit and counter-affidavit. The grievance of the petitioner is that if the respondents are allowed to proceed with the digging up of the wells they cannot get enough water for their agricultural purpose and to raise that objection, the petitioner has mainly contended that in spite of their objections and the report of the fourth respondent, respondents 2 and 6 have proceeded with the project, ignoring the same. In this case, the petitioner sought to rely on the report of one K. Indirajithu, Geologist, According to him, in the case of excessive drawal of water for utilization of the Sugar Mill, the 150 wells located in the village undoubtedly become dry with heavy non percolation of water. Contrary to this argument, the respondent sought to rely on the report of the Executive Engineer, P.W.D., Ground Water Division, Cuddallore. I feel it is necessary to extract the said report, which is as follows :--

'The area proposed for sinking two wells is hydrogeologically and geomorphologically favourable for ground water development. The area is covered by valley fills of loose materials comprising of Gravels, Febbles and Cobbles. The formation is favourable for ground water development. The details of other favourable conditions are already furnished in detailed report submitted in this office letter No. 156 CE/F. 1019/ 82/JDO-I dated 30-8-93 and approved in Chief Engineers No. G8/13599/Consul./K. Sugar/92 dated 9-9-93. For the allegation made now, the area has been inspected for knowing the concentration of irrigation dug wells, the spacing between them and the existence of iribal people in this area. For knowing the well concentration, a statement has been obtained from Ihe Revenue Village Officer of the Kottiyam village. As perthat there is no irrigation well within the radius of 150 metres and three numbers of irrigation dug wells are noted between radius of 150 to 300 metrs. from the proposed location (Mapenclosed). The spacing fixed for the dug wells by the NABARD is 150 metres. Therefore the spacing condition and less concentration of wells in this area are favourable for the sinking of proposed wells. Regarding tribal people existence with vicinity of proposed site is only one which comes within the radius of 300 metres. The details of wells are furnished in the statement enclosed.

The villages namely Mayambadi, Malliyambadi and Parigam are located away from the proposed site about 5 K.M on the higher elevations on west, north west and northern side respectively of the proposed site. Therefore allegations made are not found reasonable while considering the favourability of the areas, I submit herewith the area map indicating the proposed site with existing well in the vicinity of 150 metre to 300 metres and the statement for favour of further necessary action.'

In view of the abovesaid report, the report submitted by a private person at the instance of the petitioner-association cannot be relied on. The respondents have established that the objections raised have been considered in detail and the experts in the field have given report stating that digging of the wells will not affect the wells situated within the radius of 150 metres. The location of the wells are only in accordance with the report of the Chief Engineer, Ground Water Division, Madras-5, i.e., the third respondent, dated 9-9-1993. Regarding the same, there is no dispute. Moreover the wells are not situated on the river banks and they are away from the same. The above facts will clearly prove that the authorities have applied their mind with respect to the objections of the petitioner-association and decided to dig the wells in the proposed place. While so, this Court cannot sit on appeal on such decision, that too, merely on the basis of apprehension on the part of the petitioner-association. The experts in the field have decided that the digging of wells wilt not affect the wells situated in and around the proposed site, and they have given the detailed report to that effect. So, I do not find any valid reason to prevent the respondents from digging the wells in the proposed place. Hence, this writ petition is liable to be dismissed.

5. In the result, this writ petition is dismissed. No costs. Consequently, in W.M.P. Nos. 21998 of 1996 and 591 of 1997 and 492 of 1997, no further orders are necessary and they are closed.

6. Petition dismissed.