IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 171 of 2011 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= CHIMANABAI SAROVAR IRRIGATION AREA GROUP SOCIETY LTD - PETITIONER Versus STATE OF GUJARAT & 2 - RESPONDENT ========================================================= Appearance :
MR SHALIN MEHTA, LD.COUNSEL APPEARING WITH MR.NP CHAUDHARY for PETITIONER.
MR PK JANI, LD.GOVERNMENT PLEADER for RESPONDENTS.
========================================================= CORAM :
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 20/01/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. The present petition in the nature of a public interest litigation has been preferred by the petitioner which is a Society of group of farmers of village Malekpur, Suvaryo, Kheralu, Aditpur, Nandali and Madaropur of District Mehsana, registered with the Executive Engineer, Sujlam Suflam Circle 2 as Shri Chimanabai Sarovar Irrigation Water Consumer Group Society Ltd..
2. The petitioner-Society has prayed for writ, order or directions on the respondents with the following prayers :
“12(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue a writ of mandamus and/or any other writ, order of direction directing the respondent authorities to implement the order 09.11.2011 passed by the respondent no.1- Narmada Water Resources, Water Supply and Kapasar Department.
(C) Pending hearing and final disposal of the petition, Your Lordships may be pleased to direct the respondent authorities to immediately implement the order dated 09.11.2011 passed by the respondent no.1- Narmada Water Resources, Water Supply & Kalpasar Department.
(D) Your Lordship may be pleased to pass such other order and further orders as may be deemed just and proper in the interest of justice.”
3. It is the case of the petitioner-Society that there is a huge lake known as “Chimanabai Sarovar” situated in Taluka Kheralu, District Mehsana, admeasuring an area of more than 1000 acres. It is the case of the Society that the original flow of the water of Chimanabai Sarovar was stopped by making check dams. As a result of which since the year 1985, despite heavy rains, Chimanabai Sarovar practically runs dry. It is the case of the Society that the State Government has floated a scheme in the name of 'Sujlam Suflam' which is essentially a scheme for the benefit of farmers. By pumping water from main Narmada Canal, water is being supplied through pipelines to various lakes of North Gujarat for the purpose of irrigation. This benefit is also extended so far as Chimanabai Sarovar is concerned. It was in the years 2007-2008 and 2008- 2009 that the water was last supplied and pumped into Chimanabai Sarovar for the purpose of irrigation. It is the case of the Society that there are more than 1000 farmers taking benefit of irrigation for the purpose of cultivating around 500 hectares of land.
4. A serious grievance has been redressed on behalf of the Society that water is not being supplied to Chimanabai Sarovar. In this regard, a representation was preferred to the Chief Minister of the State on October 01, 2011, requesting to supply water for irrigation. It appears that the respondent No.1- Narmada Water Resources, Water Supply and Kalpasar Department passed an order dated November 09, 2011, directing the Superintending Engineers to supply water for the period between November 01, 2011 and February 28, 2012 time to time for the purpose of irrigation. Our attention has been drawn by the learned counsel appearing for the petitioner-Society to the translated copy of the order dated November 09, 2011, which reads as under :
“ORDER :
The monsoon season has got over in the State now, and in the meanwhile there has been rainfall everywhere. On the basis of the same there is good quantity of Rabi crops cultivations done. Thus, with a view that the good crops of the Rabi crops may be yielded therefore Narmada based water supply pipelines Sujlam Suflam Spread Canal and Fatewadi Canal Scheme Command for the irrigation in the Rabi Season during the year 2011 the demand is made from the Kadana Water Reservoirs and Narmada Main Canal for the water supply using the pipelines to the farmers in the concerned areas, in reference to such demands the Superintending Engineers have vide their above referred letters made the demand and as per the requirement the water supply as suggested herebelow from the Kadana Water Reservoir seven hundred cusec and from the Narmada Main Canal total two thousand seven hundred and fifty cusec water at the suggested places is ordered to be released between 1.11.2011 to 28.2.2012 as per the demand made.
The above orders are passed after obtaining the approval on the even number file of this office by the Hon. Chief Minster on 4.11.2011.
By the orders of and in the name of the Governor of Gujarat,”
5. The learned counsel also brought to our notice the places where water has been ordered to be released, including the quantity which reads as under :
The Sardar Sarowar Nigam will have to inform the concerned officers of the main canal regarding the above release of water, and the necessary arrangements will have to be made.”
6. Thus, we have noticed that there is already an order dated November 09, 2011 passed by the Government in its Narmada Water Resources, Water Supply and Kalpasar Department and we have also noticed that the Chimanabai Sarovar is included as one of the places where water has been ordered to be released. We have also noticed that the order has been communicated to all the concerned Water Resources' Superintending Officers, which include the following :
(1) Executive Engineer
(2) Dharoi Main Dam Division
(3) Irrigation Department, Mehsana
(4) Irrigation Department, 2 Area
(5) Dy.S. Division, Palanpur.
7. It appears that the order has not been acted upon and the water has not been released till this date in Chimanabai Sarovar. We have heard learned counsel Mr.Shalin Mehta appearing with the learned advocate Mr.N.P. Chaudhary for the petitioner-Society and the learned Government Pleader Mr.P.K. Jani for the respondents. The learned counsel for the petitioner vehemently submitted that the Government promised to release water into Chimanabai Sarovar by passing order dated November 09, 2011, but on the ground of political rivalry and other extraneous considerations, the authorities have not released water into Chimanabai Sarovar. As a result of which, the farmers are facing acute hardships and will not be able to cultivate the crops without sufficient quantity of water. The learned counsel also submitted that though under the scheme water has been supplied for two times in the lakes of villages Samoja, Ambawada and Rahemanpura, the Chimanabai Sarovar has been excluded from supplying water in the current year 2011-2012. He, therefore, prayed that this is a fit case where this Court should issue a writ of mandamus directing the respondents to implement and comply with the order dated November 09, 2011.
8. Considering the nature of the problem and prima facie being convinced with the public interest, we issued notice to the respondents. In response to the notice which was issued by this Court, the respondents have appeared. An affidavit-in-reply has been filed by the respondent No.3-Narayanbhai Virjibhai Kotwal, Executive Engineer, Dharoi Head Works, Division No.1, Dharoi, District Mehsana. By way of affidavit-in-reply all the allegations about political considerations and political rivalry have been denied explicitly by the respondent No.3. It is also conceded that the order dated November 09, 2011 has been passed to release water and Chimanabai Sarovar has been included in the list of places were water is to be released. However, by way of an affidavit-in-reply, the respondent No.3 has tried to explain the difficulties being faced and experienced by the authorities concerned insofar as supply of water to Chimanabai Sarovar is concerned. By way of reply, it has been inter alia stated as under :
“6. It is most respectfully submitted that there was planning to supply water for irrigation through pipeline to surrounding ponds located nearby the pipeline and the order was passed to the extent the benefit possible. I further say and submit that interpreting by / interim direction sought by the petitioner is incorrect that 100 cusecs water planned to be lifted from Narmada Main Canal, is only for the purpose of filling the Chimnabai Sarovar. That order dated 09.11.2011 item No.VII which has reflected 100 cusecs water is to be lifted from the Narmada Main Canal near Modhera and to feed into Modhera Dharoi Pipeline. Item No.VII reads as under :
“ Modhera-Dharoi Pipeline (Sujlam Suflam Spreading Canal + Ponds + Chimnabai Sarovar).”
7. It is respectfully submitted that the Chimnabai Sarovar is sitauted at a distance of 8.5 kilometres from Modhera Pipeline. It will be not out of place to mention that the reservoir capacity at FRL (Full Reservoir Level) is 632 MCFT (Million Cubic Feet). Total cultivable command area of Chimnabai Sarovar is 2125 Hectors and irrigation area is 2024 hectors, out of that 1124 hectors area is already covered under irrigation by Dharoi Project. Remaining area is approximately 900 hectors while submergence area of Chimnabai Sarovar is 1600 Acres (648 Hectors). For filling this large size tank, it require at least 293 days considering 50% loss of water during transit in 8.5 Kilometres long Kuda Feeder. Against this 19 ponds shown in Annexure-1 are situated within the range of one kilometre distance from pipeline alignment and storage capacity of each tank is very small in the range of 0.23 MCFC to 17.65 MCFT only. As such these 19 ponds filled through pipeline.
It is most respectfully submitted that as per the Govt. order dated 09.11.2011 water is being lifted from the Narmada Canal to feed into Modhera-Dharoi Pipeline. I further say and submit that Modhera-Dharoi Pipeline is presently supplying water to Sujlam Suflam Spreading Canal and 19 ponds are filled up.
It is most respectfully submitted that in case of water is required to be released for the purpose of irrigation, in that case, the notice is required to be issued in advance for farmers who can take benefits of water for irrigation from Chimnabai Sarovar and they can plan there irrigation activities accordingly.
It is most respectfully submitted that there is no planning to provide water to Chimnabai Sarovar for the purpose of irrigation this year. I further say and submit that no notice was issued as earlier issued in the year 2007-2008, 2008-2009, because at that point of time there was planning to provide water through Chimnabai Sarovar for irrigation purpose.
8. It is to be noted here that as stated in VII point of order dated 09.11.2011 in which place of water to be released is shown as Sujlam Suflam Spreading Canal as well as various ponds as well as Chimnabai Sarovar. It is most respectfully submitted that all the 19 ponds are situated within one kilometre distance from pipeline alignment wherein water is released/ feed in primarily for recharge, domestic use and subsequently irrigation.
It is most respectfully submitted that Chimnabai Sarovar is sitauted in the 3rd section of Modhera-Dharoi Pipeline at a distance of approximately 8.5 kilometres. Modhera-Dharoi Pipeline provides water to Dharoi Reservoir by operating 3 Pumping stations. First pumping station to lift water from Narmada Main Canal to Sujlam Suflam Spreading Canal, Second pumping station to lift water from Sujlam Suflam Spreading Canal to Rasulpur Pumping Station near Dharoi Main Canal. Third Pumping Station to lift water from Rasulpur to Dharoi Reservoir. As such Rasulpur Pumping Station is the 3rd and last pumping station of the pipeline. Looking to the large cost of pumping, all these three pumping stations are operated when there is acute and sufficient demand of water for irrigation and drinking water from Dharoi Reservoir. During supply of water to Dharoi Reservoir water can be given to Chimnabai Sarovar by manually operating scour valve near Kuda Feeder. As such whenever water has been released in Dharoi Reservoir in past water has been normally supplied to Chimnabai Sarovar also. This fact can be proved through detail of pumping done during 2007-08 and 2008-09. (Annexure-2) Anticipating similar scenario during this year name of Chimnabai Sarovar has been included in the Government order. Whenever, demand of water will be generated for Dharoi Reservoir, water may be provided to Chimnabai Sarovar for recharge purpose.
9. In view of what is stated hereinabove, the order dated 09.11.2011 can not be read in isolation, because this order clearly indicate supply of water to Sujlam Suflam Spreading Canal and Fatewadi Command Area for irrigation purpose but does not mention planning to release water for irrigation to Chimnabai Sarovar.”
9. Having heard the learned counsel for the respective parties and having gone through the materials on record, we have noticed the following aspects which deserve consideration :
(i) Along with affidavit-in-reply a map has been annexed giving a fair idea about Modhera-Dharoi pipeline flow. It is in the form of a diagram. We have noticed that water flows from Narmada Main Canal near Modhera pond. From Modhera Pumping Station, it reaches Motidau pumping station; and from Motidau pumping station, it reaches Rasulpur pumping station. As such Rasulpur pumping station is the third and last pumping station of the pipeline. From Rasulpur pumping station, water is stored at Dharoi Dam. We have noticed that Chimanabai Sarovar is at a distance of 8.5 kilometres from Dharoi Dam.
(ii) As such there is no pipeline connecting Rasulpur pumping station with Chimanabai Sarovar. If the water has to be filled in Chimanabai Sarovar, it has to flow through a natural channel, if at all the water is released from the pipeline connecting Rasulpur pumping station with Dharoi Dam.
(iii) If the entire Chimanabai Sarovar is to be filled up with water it would take around 293 days and in the process, there would be a loss of 50% of water during the flow.
(iv) Area of Chimanabai Sarovar is around more than 1000 acres.
(v) Against this, there are 19 small ponds situated within the range of 1 kilometre distance from pipeline alignment.
(vi) Whenever water is being supplied to Dharoi Reservoir, the Chimanabai Sarovar is also supplied with water by manually operating scour valve near Kuda Feeder.
(vii) Lastly, it has been clarified that as and when Dharoi reservoir will need water, at that point of time during the supply to Dharoi Reservoir, water will be provided to Chimanabai Sarovar for the purpose of recharge.
(viii) Taking into consideration the aspects referred to above, we are convinced that there are practical difficulties in implementing the order dated November 09, 2011 insofar as the Chimanabai Sarovar is concerned. We are of the opinion that in such type of cases when the experts in the field of irrigation are of the opinion that it is not possible to supply water to Chimanabai Sarovar for the present, then in that case, we cannot overlook the expert opinion and issue a writ of mandamus only on the ground that there is an order dated November 09, 2011 which the authorities are duty bound to implement. It may be true that by supplying water to Chimanabai Sarovar, the farmers would be benefited, but at the same time, the technical aspects which have been brought to our notice cannot also be brushed aside or ignored. The most important aspect which has weighed with us is that in the process of supply of water to Chimanabai Sarovar, if there is going to be a loss of around 50% of water as it is going to flow not through the pipeline, but through a natural channel, then in that case, nobody would be benefited out of the same.
10. We are, therefore, convinced that this is not a case where straightway writ can be issued commanding the respondents to release water in Chimanabai Sarovar. However, at the same time, we are also of the view that the authorities concerned should sit together with the members of the petitioner-Society and try to find out some viable solution to tackle the problem. It appears that the farmers who are the members of the petitioner-Society are not completely and wholly dependent on Chimanabai Sarovar because if that would have been the case then probably they would not have been able to carry on any agricultural operations till this date. This is evident from the fact that water was released in Chimanabai Sarovar the last time almost four years back i.e. in the year 2007-2008. This is suggestive of the fact that the farmers are getting facilities of irrigation and it may be true that water in Chimanabai Sarovar would further be beneficial to the farmers.
11. We, therefore, deem fit to direct the respondents to look into the matter once again and have a healthy discussion with the members of the petitioner-Society. The respondents shall convene a meeting in this regard with the petitioner-Society and take appropriate decision within a period of four months from today. We hope and trust that the respondents shall take adequate care to protect the interest of the farmers whose only source of livelihood is agriculture.
12. With the above observations and directions, we close this public interest litigation. However, there shall be no order as to costs.
(Bhaskar Bhattacharya, Acting C.J.)
(J.B. Pardiwala, J.)
Aakar