B L BASAVANGOUD Vs. DEPUTY COMMISSIONER BELLARY
HIGH COURT OF KARNATAKA
DEPUTY COMMISSIONER, BELLARY
Click here to view full judgement.
(1.) The petitioners are the owners of agricultural land bearing S. No. 159/C/1 and
159/C/2 of Bagewadi village Siruguppa
Taluk, Bellary District. They, claim to
be the joint owners of the lands being
father and son. It is stated by them that
S. No. 426/B measuring 8 acres and 30
cents situated in the same village had been
included in the Ayacut (Command area)
of Thungabhadra Project (right bank).
However, the land in S. No. 426/B could
not be irrigated as no water was supplled
to the same even though water rate was
being levied. On the other hand, S. Nos.
159/C/1 and 159/C/2 which were not in
the command area got affected by seepage
of water and therefore being unfit for cultivating
any other crop, paddy was cultivated in an area of 4 acres in those survey
numbers. In that circumstance they applied to the concerned authorities of the
Government to de-localise survey No.
426/B and include in the command area
correspondingly 8 acres of land in S. No.
159/C/1 and 159/C/2. From the number
of Exhibits produced by the petitioners,
it is clear that the Government ordered
such shift in the supply of irrigation
water and directed the Chief Engineer,
Irrigation Project, South Bangalore, to
take immediate steps to exclude S. No.
426/B from localised area and include S.
No. 159 of the petitioners and localise
the same. However, in spite of the best
efforts of the petitioners, the localisation
did not take place in respect of the two
survey numbers aforementioned. On
24-10-1970 the Superintending Engineer,
Thungabhadra Project, Circle Munirabad
granted permission to the petitioners to
irrigate S. No. 159 of Bagewadi village to
an extent of 8 acres for the year 1970-71.
But even on that date localisation of the
area in S. No. 159 had not been done. The
petitioners continued to make representations and finally on 26th September 1974
S. No. 426/B was delocalised and S. No.
159 to the extent of 8 acres and 30 cents
was localised While the matter stood
thus, the petitioners found that some demand notices had been affixed on their
house and had been torn away and in that
circumstance when they applied for true
copies of the said demand notices, the
Tahsildar, Siruguppa, issued them copies
as per Ex. R and S. Presuming that to
be penalty imposed under the Karnataka
Irrigation Act (hereinafter referred to as
the Act) and aggrieved by the same, the
petitioners have approached this Court for redressal of their grievance under Art.
226 of the Constitution inter alia contending that the said demand notices are illegal,
without jurisdiction, without the authority of law and without the petitioners
being afforded an opportunity of being
heard before any kind of penalty is imposed.
(2.) Though the writ petition is of the
year 1975 and the respondents have been
served long back, as on the date of hearing, the respondents have not filed their
statement of objections. However, the
learned Government Pleader appearing
for the respondents has submitted that
the demand notices impugned in the writ
petition are issued under sub-section (5)
of S. 28 of the Act, in as much as the
petitioners had used the water of Thungabhadra Project without prior permission
and therefore had unauthorisedly used the
water of the project attracting the penal
provisions of that sub-section. That sub
section reads as follows :
'28 (5) If any person uses water
from an irrigation work without obtaining the permission required under
this section, he shall in addition to
any penalty he incurs under this Act
for such unauthorised use of water
be liable to pay water rate at such
rate as may be determined by the
prescribed officer not being less than
ten times and not exceeding thirty
times the rate he would otherwise
have been required to pay, had he
applied for and obtained the permission."
(3.) It is very clear from the language
of the sub-section that the penalty
imposed is in respect of an offence committed
against the provisions of the Act and
therefore penal in character. While the
authority to impose the fine is not specified in that sub-section, sub-sec (1) of
S. 28 of the Act provides for the application being made to the irrigation Officer.
Therefore, it is reasonable to presume
that he the Irrigation Officer has to impose the penalty. S. 64 of the Act in
some measure provides for the mode of
levying penalty when the water has been
unauchorisedly used from an irrigation
project. It provides for notice to persons charged with that offence whether
they be holders or occupiers of the lands
benefited thereby after an opportunity
to be heard is given to them at an enquiry
and thereafter the Irrigation Officer may
make an order for recovery of such charges and penalty.;
Copyright © Regent Computronics Pvt.Ltd.