(Per : HONOURABLE MR JUSTICE J. B. PARDIWALA) By way of this writ petition under Article 226 of the Constitution, the petitioner a resident of village Nani Bhalsan (Beraja) Taluka Kalavad, District Jamnagar has prayed for a writ of mandamus upon the respondent authorities to hold necessary inquiry and take appropriate steps/actions against the person responsible for misappropriating the funds ear-marked for "Fulzer - 1 Regional Water Supply Scheme" floated by the State Government and also to initiate appropriate inquiry with regard to non supply of water to the Villagers, who were to derive benefits from the said scheme of water supply and further to submit a report in this regard before this Court.
The case of the petitioner as set up in the petition may be summarized thus:
The petitioner is a former member of Nani Bhalsan Gram Panchayat and claims to be a well-reputed social activist of the village. According to him, the respondent authorities floated a scheme for supply of water known as "Fulzer 1 Regional Water Supply Scheme" for supply of water to 13 villages of Jamangar Taluka and 15 village of Kalavad Taluka, totaling 28 villages.
At the time of framing the scheme, it was decided that water tax and maintenance charges, etc., shall be levied upon the Gram Panchayat of the villages, which would be getting the benefit of water supply through the said scheme. It was also decided that prior to initiating the project for the implementation of the scheme, all the concerned Gram Panchayats shall have to pass appropriate resolution for the same.
According to the petitioner, without obtaining any resolution from any Gram Panchayat, the respondent authorities straight way commenced the work of the said scheme by issuing various tenders. It is also the case of the petitioner that the authorities entered into the contract with various contractors, purchased and supplied various goods to the contractors and ultimately the project came to an end in the month of August, 1999 and the entire scheme was completed in December, 2000.
It is the case of the petitioner that since December, 2000 till this date, not a single village has derived the benefit of a single drop of water even for a minute by virtue of the scheme. Almost ten years have passed but the scheme has not been able to provide any water to any of the villages.
According to the petitioner, the scheme was carried out at the cost of more than Rs. 3,47,00,000/-. According to the petitioner, this entire amount has been paid to various contractors but not a single drop of water has been supplied to any of the villages, which were to get benefit of the water scheme.
It is the case of the petitioner that despite the fact that the authorities have not been able to supply water for a single day since the year 2000, still Rs. 13.40 Lac is being spent towards maintenance expenses of the scheme. Not only this but during the entire period of ten years about Rs. 17 Lac has been paid to Irrigation Department for supply of water and that too without any water supplied to any of the villages.
According to the petitioner, having realized that the scheme has failed and cannot be executed, the authorities are now trying to remould the entire scheme once again at the cost of Rs. 4 Crore. According to the petitioner, the authorities have informed the villagers that the water of river Narmada would be brought to the Fulzer Dam of Jamnagar District, from where the water will be supplied to the villages concerned by way of remoulded scheme.
According to the petitioner when the respondent authorities were called upon to explain as to why the scheme has failed and water is not being supplied, the respondent authorities have assigned three reasons:
"(i) due to poor rain fall, the water in the Dam could not be collected in sufficient quantity;
(ii)most of the villages are already having alternative source for drinking water and therefore the concerned Gram Panchayats were not interested in getting water for their concerned villages through the Fulzer - 1 scheme; and
(iii) as the machineries remained idle for considerable long time they became non-usable and the pipe lines also got punctured at various places as a result of which the water could not be supplied."
According to the petitioner, the aforesaid three reasons assigned by the authorities are flimsy and false. It is the say of the petitioner that, in last ten years, the rainfall was poor only for about two years or three years but thereafter there has been heavy rainfall in the entire district of Jamnagar. Therefore, the reasons assigned by the authorities as regards poor rain fall is just an eye wash. According to the petitioner, the second reason about the alternative source of water is also baseless and flimsy.
It is alleged by the petitioner that the pipe lines, which were installed were also of very poor quality, as a result of which, they got punctured at various places. It is lack of proper care on the part of the authorities to maintain the machineries which has resulted in the failure of the scheme.
It is the case of the petitioner that public money has been involved in the implementation of the scheme and huge amount has been misappropriated at various levels, for which, the proper inquiry must be initiated.
Notice was issued to the respondents and in response to the notice issued, the authorities have appeared and have opposed this petition by filing affidavit in reply. The stand taken by the authorities in the affidavit in reply is as under:
(i)No illegality or irregularity is committed in execution of the project, "Fulzer
- 1 Group Water Supply Scheme." The decision was taken by the Chief Engineer, Zone - 3, Rajkot of Gujarat Water Supply and Sewage Board considering the perennial scarcity of water and shortage of water supply.
(ii)According to the respondents, Saurashtra area of the State of Gujarat and particularly Jamnagar District situated on coastal side was having a perennial scarcity of drinking water due to very poor rain fall. It is stated that the years of 80s and 90s were drought effected years and during most of the years the State Government had declared scarcity and scarcity relief work was taken up to help the local villagers.
(iii)According to the respondents, considering the shortage of water and particularly drinking water in the villages of the District of Jamnagar the State Government as well as Gujarat Water Supply and Sewage Board had evolved various schemes to meet with the situation and accordingly the Chief Engineer, Zone - 3, Rajkot of Gujarat Water Supply and Sewage Board introduced a scheme known as "Fulzer - 1 Group Water Supply Scheme" for in all 28 villages of the Talukas of Kalavad (15 village) and Jamnagar (13 villages) and administrative sanction was granted on 26/8/97 by the said authority and the project cost was Rs. 350.02 Lacs (net) and 412.51 lac (gross).
(iv)As per the say of the respondent, under the said scheme a network of Asbestos Cement Pipes and P.V.C. Pipe lines was established in all 28 villages and the water was to be drawn from the canal of Fulzer Dam. The respondent no. 1 submits that the project was completed in the month of December, 2000 but due to shortage of water in the Fulzer Dam of the Irrigation Department of the State Government, it was not possible to supply water from the said dam through the network. It is stated that the testing work was also completed in the year 2001. The respondent no. 1 submits that due to low level of water in the months of summer and as priority was given to irrigation water could not be drawn and supplied from the dam.
(v).As per the say of the respondents, by way of resolution dated 14.12.88 the Government of Gujarat through its Health and Family Welfare Department has framed various schemes to be implemented to deal with the problem of water supply and a specific role was ascribed to Gujarat Water Supply and Sewage Board. It is further the stand of respondents that due to accute shortage water was being provided through water tankers and railway tankers. The respondent no. 1 submits that even in the subsequent years the Government of Gujarat issued resolutions on 22.1.90, 5.5.90, 7.5.90, 9.6.93 etc. to meet with the critical situation. It is stated that considering the acute shortage of water number of projects were undertaken by the State Government through its departments as well as Gujarat Water Supply and Sewage Board throughout the State of Gujarat to meet with the critical situation. According to respondent no. 1 "Fulzer - I Group Water Supply Scheme" was one of such schemes introduced and executed to provide drinking water to the villagers of in all 28 villages. According to respondent no. 1 the scheme was executed as per the plan but could not be implemented due to non availability of water in Fulzer Dam.
(vi). According to the respondents, many projects were taken up to meet with the demand of public at large so far as supply of drinking water is concerned, but unfortunately, water could not be provided through the Fulzer Dam. According to the respondents, in the meantime, the State Government decided to have Narmada Canal based Water Supply Project for number of districts and particularly area of Saurashtra and the districts of Kutch. In view of this the office of Chief Engineer, Zone III Gujarat Water Supply and Sewage Board, Rajkot passed an order on 21/6/2007 for establishment of distribution network for the district Jamnagar at the cost of Rs. 125 Crore approximately.
(vii).
According to the respondents, in all 510 villages and 8 urban areas of district of Jamnagar were covered under the said distribution network. Accordingly, under Kalavad Group Water Scheme, the authorities decided to give connectivity to "Fulzer - 1 Group Water Supply Scheme" covering 28 villages. In view of this the entire project was remoulded to have connectivity with Narmada Canal Pipelines at Service Reservoir situated at Golaniya Head Works. It is the say of the respondents that for implementation of the said project existing network of pipelines was repaired and to a certain extent new pipelines were also laid at the cost of Rs. 205.93 lac in the year 2010-11 and the execution of work with respect to 18 villages is already completed and the remaining work would be over by the December, 2012.
(viii).
It is the say of the respondents that due to consistent satisfactory rainfall subsequent to the year 2001 in the State of Gujarat and particularly in the District of Jamnagar problem of drinking water is practically solved and the local sources are sufficient to meet with the requirement of drinking water of the local people. At the most during the months of summer there are problems of drinking water and, therefore, the same are met with by way of providing water through the network wherever it is completed in the district of Jamnagar. The old pattern of providing drinking water through tankers was discontinued as Narmada Water is available through the network. It is humbly stated that even during the month of summer only such network is operated as per the demand of the village panchayat. The respondent no. 1 states that in the year of 2010 two villages were provided water through the said net work hardly for a period of one month while in the year 2011 in all five villages were provided water for approximately 2 months as per their demand. According to respondent no. 1 uptill now 205.93 lac are spent to remodel the scheme for 18 villages and Rs. 60 Lac are yet to be spent for 8 villages.
(ix).
According to the respondents, there are in all 698 villages in the District of Jamnagar and out of that 668 villages are covered through the Narmada Pipeline Network and the remaining 30 villages would be covered within a short time. In other words there is no shortage or problem with regard to drinking water for the district of Jamnagar due to Narmada Canal based Water Supply Project executed by Gujarat Water Supply and Sewage Board. According to the respondents, instead of appreciating the entire exercise and satisfactory execution of the project the petitioner herein is making thoroughly baseless allegations against the officers of the respondent board though no complaints of malpractice, corruption lack of technical implementation etc are so far received at the highest level except in two cases wherein two officers of the Board of the rank of Executive Engineer and Deputy Executive Engineer are charge sheeted and ultimately penalties are imposed.
Having heard learned counsel for the respective parties and having gone through the materials on record, we find that Asbestos Cement Pipes and PVC Pipe lines were installed and laid in all 28 villages and the water was to be provided from the "Canal of Fulzer Dam" through the said Pipe lines. However, despite the fact that the project was completed in the month of December 2000 due to acute shortage of water in the Fulzer Dam, it was not possible to supply water from the said Dam through the Pipe lines, which were installed. It also appears that the testing work was also completed in the year 2001 but due to low level of water in the summer season and as priority was to be given to irrigation, water could not be supplied from the Dam. It appears that due to circumstances beyond the control of the authorities, the project was not successful. To a certain extent nature also did not help the villagers in the form of poor monsoon and to a certain extent some technical problems also came in the way of proper and smooth implementation and execution of the scheme.
Record also revels that with the establishment of new distribution network for the supply of water to the District of Jamnagar at the cost of Rs. 125 Crore in all 510 villages and 8 urban areas of the District of Jamnagar are now under the distribution network. In view of this "Fulzer -1 Group Water Supply Scheme" has been given connectivity in the "Kalavad Group Water scheme" covering around 28 villages. It also appears that the entire project was remoulded to have connectivity with Narmada Pipe Lines and for this purpose the pipe lines, which were installed were repaired and were found newly added at the cost of Rs. 205.93 Lac. The work in around 18 villages has been completed and the work in the remaining villages should be over by December, 2012, as per the say of the respondent on oath.
So far as the allegation of misappropriation of funds is concerned, there is no satisfactory or sufficient evidence adduced by the petitioner in this regard, except making a bald-allegation. However, it has been brought to our notice that in connection with "Fulzer 1 Group Water Supply Scheme" two officers of the Board of the rank of Executive Engineer and Dy. Executive Engineer were found to have indulged in embezzlement of funds against whom departmental action was initiated and penalty has also been imposed.
The main relief, which has been prayed for in this petition is to direct the respondent authorities to initiate appropriate inquiry in so far as misappropriation of public funds in connection with "Fulzer Regional 1 Water Supply Scheme" is concerned. It appears that so far as the allegation relating to commission of irregularities or illegalities amounting to criminal act is concerned, the writ petition admittedly lacks relevant and requisite particulars. We have already noted above that action has been taken against two officers. What we find is that the petitioner has levelled allegations more so because the scheme was not successful as was expected by the authorities as well as by the people, who were to derive benefit out of the same. We are convinced and satisfied with the explanation of the respondents insofar as the allegations levelled by the petitioner are concerned.
In Netai Bag VS. State of W. B., reported in (2000) 8 SCC 262 : (AIR 2000 SC 3313), the Honourable Apex Court has observed as follows:
"19. Though the State cannot escape its liability to show its actions to be fair, reasonable and in accordance with law, yet whether challenge is thrown to any of such action, initial burden of showing the prima facie existence of violation of the mandate of the Constitution lies upon the person approaching the Court...."
In the same paragraph, it has also been observed that the the Constitutional Courts cannot be expected to presume the alleged irregularities, illegalities or unconstitutionality nor the Courts can substitute their opinion for the bona fide opinion of the State executive.
Further, in Sachidanand Pandey Vs. State of West Bengal, reported in (1987) 2 SCC 295 : (AIR 1987 SC 1109), the Apex Court laying down the guidelines as to when Courts can entertain petition in the nature of public interest has observed as follows:
"61.
It is only when Courts are apprised of gross violation of fundamental rights by a group or class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, specially this Court, should leave aside the procedural shackles and hear such petitioners and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected."
In the aforesaid view of the matter, we are of the view that no relief as prayed for by the petitioner can be granted as we are satisfied with the explanation put forward by the respondent. We, therefore, do not find any good reason to continue with this Public Interest Litigation. This petition, therefore, fails and the same is hereby rejected. However, in the facts and circumstances of the case, there shall be no order as to cost.
(BHASKAR BHATTACHARYA, Actg. CJ) (J.
B. PARDIWALA, J) *asma Top