Decided on February 02,1981



- (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.;

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