A. Narayana Pai, C.J.
1. These three writ petitions are heard together because they raise common questions of fact and law. The statement of the case and the formulation of the points are such that a detailed consideration of first of the writ petitions will dispose of all the writ petitions.
2. The petitioners impugn an order of the State Government No. PWD 3 II B 69, dated the 17th April 1969 directing an addition of an extent of 109 acres and 20 guntas of land of Rajendrapura village, Kunigal Taluk, Tumkur District within what is described as the authorised achkat under the Deepambhudi tank situated in Huliyurdurga village of the said Taluk.
3. The petitioners are among the cultivators owning wet lands irrigated with the water of the said Deepambhudi Tank. Their principal grievance in this case is that the inclusion of this additional area for irrigation with the water of the Deepambhudi tank would result in diminution of adequate supply of their lands. They also contend that the procedure prescribed by the Irrigation Act which governs the situation had not been followed with a view to take the first preliminary decision that the additionalsupply will not be detrimental to the existing supply. The legal contention is that the impugned order of the State Government is not in accordance with law or is at any rate beyond the scope of the statutory powers of the State Government.
4. The bulk of the averments in both the affidavits relate to facts depended upon by the contending parties to make out their respective cases of inadequacy or adequacy or water supply. The petitioners state that the undoubted facts that in the year 1927-28, 140 acres of land were excluded from the scope of water supply from the Deeparnbhudi tank and converted from wet to dry land and that an application by one of the petitioners for converting his dry land into wet land had been refused in May 1963 on the ground that it was not desirable to add more achkat under the Deepambhudi tank, taken along with the undisputed fact or fact described by the petitioners as indisputable that there has not been any change in the circumstances so far as the water available in the tank is concerned furnish sufficient basis for their contention that the inclusion of this additional area within the achkat will result in diminution of water supply, to the petitioners and others already within the achkat.
5. On behalf of the State Government, an affidavit by the Executive Engineer, incharge of this irrigation work has setout certain figures. He states that thereis within what he describes as the achkatarea of Deepambhudi tank another tankcalled the Kempambundi tank with a capacity to feed 154 acres, and gives the following calculations:
Water available for irrigation
from Deepambhudi tank 854 units
Water available for irrigation
from Kempambundi tank 122 units
Total 976 units
Deduct 10% for loss 98 units
Each unit is sufficient to feed or irrigate 1 1/2 acres so that the total capacity of both the tanks would be 1,317 acres. He further states that the authorised achkat under the Deepambundi tank is 1,037 acres plus some unauthorised temporary achkat, that the total quantity of water required for feeding the existing achkat would be 787 units leaving a balance of 91 units as surplus which is capable of being used for the extension now sought to be included under Impugned order of the Government.
6. Mr. Ethirajulu Naidu, the learned counsel for the petitioner, commenting on these figures contends that it is not correct to treat the two tanks as falling within the achkat of Deepambhudi tank or constituting a single irrigation unit which may be rightly called the achkat of Deepambhudi tank, but that Kempambundi tank itself has its own achkat of 154 acres. He states that we should examine the position from thepoint of view of figures exclusively relatabteto the Deepambhudi tank. So considered,the position would be as follows:
Water available from the
Deepambundi tank 854 units
Deduct 10% 85.4 units
These units are sufficient to feed 1,152.9 acres which is less than the admitted extent of the achkat of the Deepambundi tank which is 1,180 acres.
7. It has been suggested in the course of the arguments on behalf of the State Government that the 154 acres referred to as capable of being irrigated by Kempambundi tank are included within what is described as the authorised achkat of 1337 acres of Deepambundi tank. It may or may not be correct. At any rate, it is not possible for us clearly to verify its accuracy from the information furnished in the affidavit.
8. We do not, however, consider that we should go deeper into this matter of fact because we are not sitting as a Court of Appeal having jurisdiction to examine and record findings or fact. In exercise of OUT powers under Article 226 of the Constitution, all that we could rightly and properly do is to examine whether the statutory authority has acted within the limits of the statute and in accordance with what may be regarded as the clear mandate of the statute and also whether any rights of the petitioners have been infringed by the exercise of such power.
9. For a consideration of this point, reference should now be made to some or the provisions of the Mysore Irrigation Act, 1965. Chapter IV thereof deals with Regulation of Irrigation. The first section therein, namely, Section 27 confers powers upon an officer called the Irrigation Officer for regulation of water supply. It requires him before making any orders thereunder, to make such enquiry as he deems fit in the first instance and also to consult a Committee appointed by the State Government consisting of such number of official and non-official members as may be prescribed. Sub-sections (1) & (2) of Section 28 relevant to our present discussion reads as follows:--
'28. Application for permission to use water from an irrigation work.-
(1) Any person desiring to have supply of water from an irrigation work for irrigating a land not included in any area to which supply of water is regulated under Section 27, shall make a written application to that effect to the Irrigation Officer. Subject to any general or special order made by the State Government determining the extent of lands for which water can be made available from such irrigation work, such officer may, if in his opinion such supply can be made withered detriment to the supply of water to lands included in any area to which supply of water is regulated under Section 27, order the supply of water andfor such period not exceeding six years subject to such conditions as may be specified in such order.
(2) If after a period of six successive years of supply of water made to any land referred to in Sub-section (1), the holder of such land applies for the supply of water being made permanent, such application with the opinion of the Irrigation Officer, shall be forwarded to the Deputy Commissioner of the district. The Deputy Commissioner of the district shall then take steps in accordance with law to include the land in the area to which supply of water is regulated by Section 27'.
10. It will be seen from first subsection of Section 28 that the power of making water available to the lands is vested in the Irrigation Officer. The owner of the land who wants the same to be fed by irrigation has to make an application to the Irrigation Officer, and the officer may grant his request only if in his opinion such supply can be made without detriment of supply of water to the lands included in the area to which supply is already regulated under Section 27. It is seen further that the first step is grant of temporary irrigation, and it is only after six successive years of such temporary supply that the holder of land may apply for the supply being made permanent. When such an application is made, the Irrigation Officer has to forward the same to the Deputy Commissioner of the district along with his own opinion, and it is then for the Deputy Commissioner of the district to take steps in accordance with law to include the land in the area to which supplies are already regulated under Section .27.
11. Thus, the statute itself selects officers for the exercise of certain powers and confers powers upon them in specific terms. Sub-section (1) of Section 28 no doubt refers to certain power of the Government intended to control the exercise of the power by the Irrigation Officer. That power is of determining the extent of the lands for which water can be made available from any specified irrigation work. In other words, the Government may set a limit to the area to which water can be supplied from a specified irrigation work, and neither the Irrigation Officer nor the Deputy Commissioner can supply water to the lands beyond the limit prescribed by the State Government.
12. The complete picture of the procedure, therefore, is that in respect of any irrigation work the State Government has the power to specify the maximum area of land which can be irrigated with the water therefrom. The lands to which water can be supplied, and the manner in which the same should be regulated are matters within the power of the irrigation Officer under Sections 27 and 28 (1). When the initial exercise of the power under Section 27 is completed and an area of land to be irrigated from a certain irrigation work is settled, further additions thereto of lands to receive irrigation from the same irrigation work can be made only by following the procedure under Section 28 (1) and (2).
13. In fixing the first area or the original area under Section 27, the Irrigation Officer will no doubt have examined the nature of the crops, extent of the water supply necessary therefor and the sufficiency or insufficiency of water available from the irrigation works. We may take it, therefore, that when the regulation is complete, the opinion of the Irrigation Officer underlying the totality of this regulation is that the water in the irrigation work in the existing and foreseeable circumstances would be sufficient to maintain the cultivation of crops as specified by him on the lands to which he has already directed issue of supply of water.
14. When the second stage of adding further area arises under Sub-section (1) of Section 28, there is a difference in the approach he is required to make to the problem. He should examine the question whether the additional supplies sought by the new applicant could be made without detriment to the supply of water to lands included in any area to which supply of water is already regulated by him under Section 27. Although, therefore, it may not be completely correct for the petitioners to suggest that once water is supplied to their lands they are entitled to a certain specified quantity for all times to come, they are certainly entitled to a fair consideration by the Irrigation Officer of the question whether any additional supply or supply to any further areas of land would be detrimental to their interests. Regulation under Section 27 of the Act may also be further controlled by action under Section 31 of the Act regarding the crops to be grown on the land etc. The Irrigation Officer's power of regulation under Section 31 is subject to appeal to the Deputy Commissioner.
15. These considerations make it abundantly clear that even when the Irrigation Officer examines the position of adequacy or inadequacy of water and the possibility of detriment to the existing lands already under regulation, the procedure he adopts, his process of reasoning or examination and his ultimate opinion may possibly affect prejudicially the rights already acquired by the owners of lands within the original achkat. Although the principles of natural justice directly applicable to the exercise of judicial or quasi-judicial power may not apply and the power here exercised is purely administrative or executive power, the conditions prescribed by the statute for the exercise of that power in themselves control the exercise of such power. They are a statutory substitute for the principles of natural justice and impose on the statutory authorities the duty to act fairly when exercising the power.
16. If a further reference is made to basic Section 27 itself in this connection, it becomes clear that before an opinion can be entertained by the Irrigation Officer he should make an inquiry such as may be necessary for the purpose because Section 28 (1) is only an extension of the power of regulation under Section 27. Now Section 28 (1) expressly requires that the addition of specified lands to the achkat can be made only upon an application by a party for which rules prescribe a form. Reading Sections 27 and 28 (1) together it would follow that before entertaining the opinion whether additional supply would be detrimental to the existing supply or not, the Irrigation Officer should make such inquiry as is necessary for the purpose and because his ultimate opinion may be one which affects existing owners of land already within the achkat, he must devise some method of ascertaining the necessary facts. As the statute does not prescribe any procedure he may either hear the parties or receive their representations in such manner as may be fair in all the circumstances of the case.
17. Such being the legal position, the impugned order of the Government to the extent to which it directs specified survey number to be included within the achkat is beyond their power and should be quashed. But because the Government have the power under Sub-section (1) of Section 27 of determining the limit or extent of lands for which water can be made available, they would have the power from time to time of increasing or reducing the extent of such land.
18. The result, therefore, is the order of Government impugned in these cases must be upheld as one authorising an increase in the existing achkat area by an area not exceeding 109 acres 20 guntas of Rajendrapura village. Jn other respects, the order is quashed, reserving liberty to the Irrigation Officer to exercise his powers under Section 28 (1) in the manner prescribed above.
19. This order disposes of all the three writ petitions.