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Sunday, March 29, 2015

It is settled principle of law that in the field of expertise, the Court cannot substitute its own opinion in order to discard any experts suggestion, on which, the Government has acted upon, in particular in absence of counter expertise. In this context, we have seen the order dated 24.7.2008, which is the ultimate decision of the Government. In paragraph-5 thereof, we have noticed the Government has acted on the basis of the report of the Chief Engineer, North Coast, Visakhapatnam. The relevant portion thereof is set out hereunder. Government have examined the matter carefully, keeping in view of the report of Chief Engineer, North Coast, Visakhapatnam. It is decided to accept the proposal of the Chief Engineer, North Coast, Visakhapatnam. Accordingly, administrative approval for an estimate of Rs.70.47 crores (Rupees Seventy Crores and Forty Seven Lakhs Only) is accorded to take up the work relating to excavation of Gajapathipalem Branch Canal taking off from KM 97.7 of Thotapalli Right Main Canal to provide irrigation facilities to additional area of 15,000 acres beyond Gadigedda by allowing canal water to cross Gadigedda by means of an aqua duct. Therefore, it is clear from the aforesaid Government Order that it has not passed the order without any material. The report of the Chief Engineer, North Coast, Visakhapatnam has been considered and thereafter decision has been taken. It is not suggested that Chief Engineer has no competence. The Court cannot interfere with a decision taken by the Government rationally, so to say, with the acceptable materials. This project, no doubt, involves lot of civil engineering and it is within the realm of technical expertise. The report of the Chief Engineer has not been brought to our notice nor it has been alleged that the said report is un- acceptable in any sense. In other words, the report of the Chief Engineer has not been challenged here on the ground of illegality or irrationality. In the absence of these allegations, we are unable to entertain the grievance of the petitioner. Under the circumstances, the writ petition is devoid of any merit and it is accordingly dismissed. Consequently, the miscellaneous applications, if any pending, shall also stand closed. No order as to costs.

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI JUSTICE SANJAY KUMAR              

Writ Petition No.3165 of 2009

16-02-2015

Gadde Babu Rao,Ex. M.L.A.,Cheepurupally Village and Mandal,Vizianagaram  
District.   Petitioner

The State of Andhra Pradesh,Represented by its Principal Secretary,Irrigation &
CAD (Maj. Irri(i) Department),Hyderabad and others..Respondents

For the petitioner: Sri Taddi Nageswara Rao

For Respondents 1 to 4:Sri B. Mayur Reddy, Additional A.G.
                                        for G.P. for Irrigation
For Respondent No.5:  Sri B. Narayan Reddy

<Gist:

>Head Note:

?CITATIONS:

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
 AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

Writ Petition No.3165 of 2009

DATED:16.02.2015  

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA            
 AND
THE HONBLE SRI JUSTICE SANJAY KUMAR        

Writ Petition No.3165 of 2009

Order: (per the Honble the Chief Justice Sri Kalyan Jyoti Sengupta)

      This Public Interest Litigation has been filed questioning the
Government Orders, G.O. Ms. No. 155, Irrigation & CAD
(PW.MAJ.IRRI.I) Department, dated 24.7.2008 and G.O. Ms.No. 44,
Irrigation & CAD (Maj.IRR.I) Department, dated 9.3.2006, as being
illegal and arbitrary.
      In support of the aforesaid prayer, in the body of the writ
petition, ignoring the other unnecessary details, we note that the
grievance of the petitioner is that the project was intended for
providing irrigation facilities for 1,84,000 acres and the capacity of
the tank is 2.50 T.M.C. and F.R.L. is at plus 105 Meters.  It is alleged
that without changing the project design, the 4th respondent herein,
seems to have submitted proposals for sanction of additional
distributory system required to irrigate 14,400 acres located in
Bobbili Constituency.
      We have seen the stand of the Government in the counter
affidavit.
      It is stated in paragraph-9 of the counter affidavit that the
excavation work of Gajapathinagaram Branch Canal is being taken
up to provide irrigation and drinking water facilities to upland areas
and drought prone mandals of Cheepurupalli, Garividi, Gurla and
Merakamudidam of Cheepurupalli Constituency and Dattirajeru and
Gajapathinagaram Mandals of Gajapathinagaram Constituency of  
Vizianagaram District.  The new Ayacut is proposed by utilizing the
surplus water partly and balance dependable water of total
allocation of 16 TMC to Andhra Pradesh.  The capacity of the
Barrage has not been changed and the R&R aspect of the scheme  
was also not affected.  As such, the R&R plan approval issued by the
Government of India, Ministry of Tribal Affairs, holds good.  While
planning Irrigation Scheme, first preference will be given to drinking
water and next preference will be given to provide irrigation facilities
to agricultural lands. The next priority is industrial requirement.
      In paragraph-10 of the counter affidavit, it is stated amongst
others as follows:
      Before issuing G.O. Ms. No.155, dated 24.7.2008, all
the parameters influencing the functioning of Right Main Canal
has been examined and after satisfying with the capacity of
canal and availability of water, the said orders were issued by
the Government.

      No affidavit in reply has been filed controverting the aforesaid
averments and statements of the counter affidavit.
      We have heard the learned counsel for the petitioner, who
reiterated the statements made in the writ petition on factual
aspect.
      Therefore the area of the dispute which requires consideration
of this is whether the two Government Orders challenged before us
require a judicial scrutiny or not ?
      It is settled principle of law that in the field of expertise, the
Court cannot substitute its own opinion in order to discard any
experts suggestion, on which, the Government has acted upon, in
particular in absence of counter expertise.  In this context, we have
seen the order dated 24.7.2008, which is the ultimate decision of
the Government.  In paragraph-5 thereof, we have noticed the
Government has acted on the basis of the report of the Chief
Engineer, North Coast, Visakhapatnam. The relevant portion thereof
is set out hereunder.
       Government have examined the matter carefully, keeping
in view of the report of Chief Engineer, North Coast,
Visakhapatnam. It is decided to accept the proposal of the Chief
Engineer, North Coast, Visakhapatnam. Accordingly, administrative
approval for an estimate of Rs.70.47 crores (Rupees Seventy Crores
and Forty Seven Lakhs Only) is accorded to take up the work
relating to excavation of Gajapathipalem Branch Canal taking off
from KM 97.7 of Thotapalli Right Main Canal to provide irrigation
facilities to additional area of 15,000 acres beyond Gadigedda by
allowing canal water to cross Gadigedda by means of an aqua
duct.

      Therefore, it is clear from the aforesaid Government Order
that it has not passed the order without any material. The report of
the Chief Engineer, North Coast, Visakhapatnam has been
considered and thereafter decision has been taken. It is not
suggested that Chief Engineer has no competence. The Court cannot
interfere with a decision taken by the Government rationally, so to
say, with the acceptable materials. This project, no doubt, involves
lot of civil engineering and it is within the realm of technical
expertise. The report of the Chief Engineer has not been brought to
our notice nor it has been alleged that the said report is un-
acceptable in any sense.
      In other words, the report of the Chief Engineer has not been
challenged here on the ground of illegality or irrationality. In the
absence of these allegations, we are unable to entertain the
grievance of the petitioner.
      Under the circumstances, the writ petition is devoid of any
merit and it is accordingly dismissed.
      Consequently, the miscellaneous applications, if any pending,
shall also stand closed. No order as to costs.

__________________  
K.J. SENGUPTA, CJ  
________________  
SANJAY KUMAR, J        
16th February, 2015

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