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2004 DIGILAW 600 (KAR)

ASHOK KADEMANI v. STATE OF KARNATAKA

2004-10-28

RAM MOHAN REDDY

body2004
RAM MOHAN REDDY, J. ( 1 ) ALTHOUGH, the petitions are listed under the caption "hearing on I. A. ", with the consent of the learned Counsels for the parties, the writ petitions are finally heard and are disposed of by this order. ( 2 ) THE petitioners are agriculturists by profession owing agricultural land in Sy. No. 154/1, Annigere Village, measuring in an extent of 8 acres 9 guntas, which has a borewell. It is stated that though Annigere village suffered from severe drought, successively for 3 years, there was sufficient ground water in the borewell on the petitioners' land, used for cultivation of crops, the only livelihood of the petitioners. The petitioners further state that excess water was allowed to be used by the villagers for drinking purpose, free of charge. In view of the drought condition the petitioners allowed the villagers and the local residents to partake of the water from the petitioners' borewell, free of cost. It is the allegation of the petitioners that by letter dated 11-6-2003, Annexure-C, certain borewells in Annigere Village were taken over by the Government, in the interest of general public, based on which the Revenue Inspector, annigere Village by his letter dated 12-6-2003, Annexure-D, informed the petitioners that the borewells were handed over to Town Municipal council, Annigere, the second respondent, on 12-6-2003. Being aggrieved by the illegal and arbitrary action of the respondents, the petitioners are before this Court seeking the following reliefs: (A) a direction to the respondents, and particularly respondent 3 from interfering in any manner with the use and enjoyment by the petitioners of the borewell situated in land bearing Sy. No. 154/1, Annigere Village, Navalgund Taluk, Dharwad District. (B) A mandamus directing the respondents to grant compensation to the petitioners for having deprived them of their income amounting to Rs. 4,80,000/ -. (C) A mandamus directing the 3rd respondent to consider the representation made by the petitioner which is at annexure-E, dated 28-6-2003 seeking compensation. ( 3 ) THE petitions are opposed by the respondents by filing their statement of objections. 4,80,000/ -. (C) A mandamus directing the 3rd respondent to consider the representation made by the petitioner which is at annexure-E, dated 28-6-2003 seeking compensation. ( 3 ) THE petitions are opposed by the respondents by filing their statement of objections. The respondents 1, 3 and 4 by their statement of objections dated 14-1-2004 claim to have taken over the borewells in exercise of the powers under Section 75 of the Karnataka Municipalities act, 1964 and handed over the same to the Municipal Authority to provide drinking water to the general public free of cost, in view of the severe drought. It is further contended that the petitioners cannot claim, as a matter of right, the underground natural water, since such underground water is the property of the State. The allegation against the petitioners is that, they have sold water, for a price, and made commercial use of the natural resource. In other words, the petitioners profited from selling borewell water. However, it is contended that the application of the petitioner dated 28-6-2003, Annexure-E requesting for sanction of compensation amount is under process. ( 4 ) THE 2nd respondent-Town Municipal Council has filed its statement of objections dated 12-9-2004 inter alia contending that the dispute cannot be decided in a writ proceeding and in furtherance of the duty of the Government to provide drinking water to the residents of annigere Village it had installed borewells in and around the Village, but the water drawn therefrom, turned out to be non-potable water. It is the specific case of the 2nd respondent that left with no other alternative, had to approach the petitioners for supply of water to the public, free of cost, and in fact the petitioners permitted it to draw water from the borewell and supply the same to the public from the mini tank constructed near the borewell. In support of the said claim the respondent has produced consent letters Annexures-R1 and R3 of the petitioners. It is alleged that the petitioners had taken undue advantage of the situation by selling the water to the public through their water tankers, at an exorbitant price of Rs. 2/- per pot and had not allowed the general public to draw water from the borewell or from the mini tanks constructed near the borewells. It is alleged that the petitioners had taken undue advantage of the situation by selling the water to the public through their water tankers, at an exorbitant price of Rs. 2/- per pot and had not allowed the general public to draw water from the borewell or from the mini tanks constructed near the borewells. It is further stated, that in order to meet the exigency of acute shortage of water, a meeting of the Principal secretary to the Government; Nodel Secretary of Dharwad District, and the elected representatives of the district, was held, in which it was decided that the authorities should take over possession of the borewells located on private lands, which formed the basis for the Deputy commissioner to pass orders to take over borewells belonging to the petitioners, amongst others. Pursuant to the said orders, it is stated that the Deputy Commissioner put the 2nd respondent in possession and custody of the borewells for the aforesaid purpose, which, after having extracted water and distributed to the general public, was redelivered to the petitioner on 20-9-2003. During the period of 100 days from 12-6-2003 to 20-9-2003 the 2nd respondent is said to have drawn water in 1769 tankers from the borewells of the petitioners. ( 5 ) HAVING heard the learned Counsels for the parties the question for determination in these writ petitions is: Whether the petitioners are entitled to the reliefs sought for in these writ petitions? ( 6 ) IT is not disputed that the respondents 1, 3 and 4 took over the possession of the borewell belonging to the petitioners and put the same in possession of the 2nd respondent in order to supply potable water to the citizens and residents of Annigere Village who were suffering from acute shortage of drinking water, in view of the severe drought condition, admittedly, for a successive period of 3 years. This in short is a justification for the respondents to have resorted to taking over the borewell belonging to the petitioners. Mere justification is insufficient, the authorities ought to have acted in accordance with the rule of law. In that regard the specific contention of the State is that the taking over of the borewell was in pursuance of Section 75 of the Karnataka municipalities Act, 1964. Mere justification is insufficient, the authorities ought to have acted in accordance with the rule of law. In that regard the specific contention of the State is that the taking over of the borewell was in pursuance of Section 75 of the Karnataka municipalities Act, 1964. Section 75 reads thus:"whenever a Municipal Council requires any immovable property for the purposes of this Act, the Government may, at the request of the Municipal Council procure the acquisition thereof under the land Acquisition Act, 1894, and on payment by the Municipal council of the compensation awarded under that Act and of all charges incurred by the Government in connection with the proceedings, the immovable property shall be transferred to the municipal Council and shall thereafter vest in such council". ( 7 ) A plain reading of the said section discloses that the Government is empowered to acquire immovable property for the Municipal Council, in terms of the Land Acquisition Act, 1894, after payment by the municipal Council of the compensation awarded under that Act etc. This provision, quite patently, does not empower the State or its authorities to take over the borewell of the petitioners. The contention of the learned High Court Government Pleader that the respondents 1, 3 and 4 were empowered in terms of Section 75 of the Karnataka Municipalities act to take over the borewell is without any merit and is rejected. ( 8 ) IT may be true that there was acute shortage of drinking water in view of the drought conditions and it is one of the duties of the State to provide drinking water to the public, but, that does not mean that the respondents 1, 3 and 4, without authority of law and without notice, can take over possession of borewell located on private property. This action of the respondents 1, 3 and 4 cannot, fall short of being arbitrary, capricious and one without authority of law. The order at Annexure-D, dated 11-6-2003 and letter dated 12-6-2003, Annexure-D of the Revenue inspector, informing the petitioners of taking possession of the borewells, are incompetent, illegal and in exercise of a jurisdiction not vested in the authorities. ( 9 ) THE contention of the respondents that the petitioners had permitted that Municipal Authorities to draw water from the borewells, by letters Annexures-R1 to R3, is without any merit. ( 9 ) THE contention of the respondents that the petitioners had permitted that Municipal Authorities to draw water from the borewells, by letters Annexures-R1 to R3, is without any merit. A perusal of the contents of the letters do not disclose any such permission as alleged, though the petitioners have in unmistakable terms, set out that they would draw the water from the borewell to be filled up in the temporary tanks constructed for the said purpose and provide taps, for the residents of the village, to draw water therefrom. ( 10 ) THE further contention of the respondents that the petitioners' cannot as a matter of right stake a claim to the ground water, is more of a reckless allegation since there is no legislation governing the rights of persons to dig borewell and the right to use the ground water. It is undisputable that the petitioners have a fundamental right to life and livelihood to dig a borewell for the purpose of drawing underground water either for drinking, cultivation or for some other purpose. It is now well-settled by a catena of decisions that Article 21 of the constitution, includes the right to all those aspects of life which go to make a man's life meaningful, complete and worth living. The deprivation of the petitioners of their use of the borewell and the water therefrom for a period of one hundred days affects their fundamental rights. The action of the respondents, suffer from the vice of violation of fundamental rights under the Constitution. ( 11 ) THERE is considerable force in the contention of Sri Kiran, learned counsel appearing for the petitioners that the petitioners need to be compensated for the illegality perpetuated by taking over the borewell belonging to them without authority of law. The learned Counsel placed reliance on the decision of the Supreme Court in case of Lucknow development Authority v M. K. Gupta, and drew my attention to paragraph 8 which reads thus:"the administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides. It is now accepted both by this Court and English Courts that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees". It is now accepted both by this Court and English Courts that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees". And at paragraph 10 held thus:"an ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities A. . . . . . A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. . . . . . . ". ( 12 ) SIGNIFICANTLY the respondents 1, 3 and 4 have in their statement of objections stated thus:"the petitioner has submitted application on 28-6-2003 requesting to sanction compensation for the taken over borewell. It is under process. In the meanwhile, the petitioner has filed this writ petition". ( 13 ) KEEPING in mind the principles laid down by the Apex Court in the aforesaid decision coupled with the statement of objections set out supra and applying the same to the facts of this case, I am of considered opinion, that the petitioners deserve to be compensated for the illegal, arbitrary and capricious action resulting in blatant abuse of power by respondents 1, 3 and 4 through its employees, in taking over of the borewell belonging to the petitioners. In view of the fact that respondents 1, 3 and 4 having acquiesced in the matter of considering the claim of the petitioners, it would be unfair to decide the quantum of compensation in this proceeding. I therefore, consider it expedient that the respondents should apply their mind to the representations made by the petitioners and consider their claims for compensation. ( 14 ) THE allegation of the respondent that the petitioners took advantage of the situation and sold water for a price is bereft of truth and not supported by legal evidence, hence rejected. I therefore, consider it expedient that the respondents should apply their mind to the representations made by the petitioners and consider their claims for compensation. ( 14 ) THE allegation of the respondent that the petitioners took advantage of the situation and sold water for a price is bereft of truth and not supported by legal evidence, hence rejected. ( 15 ) THE first relief for a direction not to interfere with the use and enjoyment by the petitioners of the borewell, would not arise, since admittedly, the respondents have redelivered possession of the borewell to the petitioners. ( 16 ) THE other prayer for grant of compensation of Rs. 4,80,000/- would also not arise at this stage, since I have held that respondents should consider the claim of the petitioners for compensation. In the result, the writ petitions are allowed in part and a direction is issued to the respondents to grant to the petitioners, compensation, by considering their representation at Annexure-E, in any event, within a period of three months from the date of receipt of a certified copy of this order. --- *** --- .