IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 12020 of 2009 For Approval and Signature:
HONOURABLE THE 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 ?
========================================================= MUSTAQ GULAM MOHMED BALOCH & 1 - Petitioner(s) Versus RAJKOT DISTRICT PANCHAYAT & 4 - Respondent(s) ========================================================= Appearance :
MR MUKUL SINHA for Petitioner(s) : 1 - 2. MR HS MUNSHAW for Respondent(s) : 1, MR PK JANI, GOVERNMENT PLEADER with MR RAJESH RINDANI, APP for Respondent(s) : 2, MR PREMAL R JOSHI for Respondent(s) : 3, NOTICE SERVED BY DS for Respondent(s) : 4 - 5.
========================================================= HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 30/08/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) By way of this petition under Article 226 of the Constitution of India in the nature of a Public Interest Litigation, the petitioners who are agriculturists have prayed for the following reliefs:
“(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, direction and/or order in the nature of mandamus directing the respondent nos.1 and 2 to permanently restrain the respondent no.3 from carrying out any construction work in and around the village tank in the village Gharida situated in S.No.155 and be further pleased to direct the respondent nos.1 and 2 to take all steps including coercive steps to constrain the respondent no.3 to reduce the level of banks of water tank that have been raised till lower safe level and be further pleased to direct the Engineers of the respondent no.1 to certify that the level of bank reduced would be safe and proper for storing monsoon water without any danger to the lives of the villagers of the village Gharida;
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, direction and/or order in the nature of mandamus directing the respondent nos.1 and 2 to take steps including coercive steps against respondent no.3 and/or to directly intervene to open the sluice valve and restore the canal system and restore the irrigation water flow to the villagers of village Gharida;
(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to, by way of ad-interim relief, restrain the respondent no.3 from carrying out any further construction work in and around the village tank in the village Gharida situated in S.No.155 as mentioned hereinbefore and be further pleased to direct the respondent nos.1 and 2 to forthwith open up the sluice valve and restore the irrigation water to villagers of village Gharida;
(D) Your Lordships may be pleased to grant ex- parte ad-interim relief in terms of prayer (C) aforesaid;
(E) Your Lordships may be pleased to award any such other and further reliefs deemed fit and expedient in the interest of justice;
(F) Your Lordships may be pleased to award the costs of the petition;”
The case made out by the petitioners in this petition may be summarised as under :
(1) Petitioner no.1 is a farmer and also claims to be a social worker residing at village Laxmi Pada, Taluka Wankaner, District Rajkot. Petitioner No.2 is also a farmer residing at village Gharida, Taluka Wankaner, District Rajkot.
(2) The grievance of the petitioners is that respondent no.3, a company engaged in the projects of infrastructure, has put up unauthorized construction in and around a tank at village Gharida which falls within Survey No.155 situated at National Highway No.8A, thereby endangering the lives of villagers of village Gharida and depriving them of water for the purpose of irrigation.
(3) It is the case of the petitioners that from time immemorial, the tank in question gets filled up during monsoon and proves to be a very good source for irrigation for the farmers of village Gharida. This tank is controlled, run and managed by respondent no.1 – Rajkot District Panchayat.
(4) In the year 2007, respondent no.3 had preferred an application to the Collector, Rajkot, requesting to allot around 415 hectares of land at village Gharida for a project. Having come to learn about such project, the Gharida Gram Panchayat lodged its objections vide letter dated 15th December 2007 addressed to the Collector, Rajkot, pointing out that if the project is permitted to be executed, then the villagers, and more particularly, farmers of village Gharida would suffer irreparable loss and damage. It was also pointed out that the only occupation of villagers was agriculture and cattle breeding and if such a huge parcel of land is allotted for an infrastructure project, then it would prejudicially affect the interest of the villagers.
(5) It is also the case of the petitioners that Gharida Gram Panchayat, once again vide letter dated 17th May 2008, lodged their objections with the Executive Engineer, Irrigation Department of Rajkot Gram Panchayat, pointing out that around 100 acres of land of Survey No.155 constitutes the village tank and past almost 37 years, the villagers of village Gharida are using the water accumulated in the said tank for the purpose of irrigation. The Panchayat requested the Mamlatdar to stop the construction which was being put up by respondent no.3.
(6) It is the case of the petitioners that in spite of objections of the villagers of village Gharida, respondent no.3 acquired a small piece of land near and around the village tank and started raising the banks of the village tank without seeking any permission or without consulting the Irrigation Department. The raising of banks and unauthorized construction led to lot of difficulties for the villagers during the monsoon of 2008 and, therefore, the Executive Engineer, Irrigation Department of Rajkot District Panchayat, vide letter dated 4th June 2008, directed respondent no.3 to bring down and reduce the level of banks to a safe level after seeking necessary technical advice of the experts and in consultation with the Irrigation Department.
(7) It is also the case of the petitioners that due to construction put up by respondent no.3, more particularly, by raising the level of the banks, the water which was flowing through the canals for the purpose of irrigation stopped as all the canals get choked up with mud.
(8) It is the case of the petitioners that the Deputy Executive Engineer, Irrigation Department, vide letter dated 10th August 2008, directed respondent no.3 to open up the sluice gate. However, instead of complying with the directions of the Deputy Executive Engineer, respondent no.3 continued with the work of construction.
(9) It is the case of the petitioners that appropriate directions are necessary to be issued on respondent no.3 to remove the illegal construction upon the sluice valve and to restore the irrigation canal system so that the water could easily reach the village for the purpose of irrigation.
Notice was issued on the respondents. Respondents have appeared and have opposed this petition by filing respective affidavit-in-reply.
I. Stand of Respondent no.1 :
It is the case on behalf of respondent no.1 that the Rajkot District Panchayat has constructed a minor irrigation dam at village Gharida, Taluka Wakaner, District Rajkot, having a storage capacity of 15.35 MC Ft. This dam takes care of the entire irrigation facility so far as villlage Gharida is concerned. The residents of village Gharida are provided potable water from the tube-well of the Gram Panchayat. The Gujarat Water Supply and Sewerage Board has undertaken a project for laying down water supply pipelines from Narmada canal.
It is the case of respondent no.1 that at the point of Head Regulator, the height of earthen dam was of 5 meters, but as respondent no.3 unauthorizedly put up additional earthen work, the height of the earthen dam increased to 8 meters. The entire base got widened due to additional earthen work at the end of respondent no.3 and, therefore, the opening of Head Regulator at both the sides i.e. upstream and downstream has got blocked.
It is the case of respondent no.1 that it is necessary to remove the additional unauthorized earthen work to open up the Head Regulator so as to restore it to its original position.
II. Stand of Respondent no.3 :
It is the case on behalf of respondent no.3 that the company has not put up any construction work in Survey No.155 near the water tank as alleged in the petition. The company wanted to establish tourism project at village Gharida, Taluka Wakaner, District Rajkot. For this purpose, the company entered into a memorandum of understanding with the State Government at Vibrant Gujarat Global Investment Summit, 2009. The land on which tourism project is to be developed is a natural water reservoir. The said reservoir is situated in the hilly area, and during the monsoon season water gets accumulated in the reservoir. There is no other source of water to accumulate in the reservoir.
According to respondent no.3, in the region of Saurashtra, rain is very sparse. The company is levelling the banks of the said tank so that water could be stored in more quantity. While levelling the banks of the tank, the company is also going to strengthen the gate which has been put up under the minor irrigation scheme and sluice valve will also be bought appropriately at the cost of the company. According to respondent no.3, the work will be undertaken under the supervision of the officer of the respondent – authorities. It is also the case on behalf of respondent no.3 that the company has deposited a sum of Rs.1,81,30,560=00 and Rs.24,28,200=00 (in aggregate Rs.2,05,58,760=00) with the Government Treasury office at Rajkot. It is also their case that the officers of the District Panchayat had visited the site on 4th May 2008, and after inspecting the site, had instructed the company to carry out the work as per their instructions. At present, the levelling of the banks is also being carried out under the strict supervision of the respondent – authorities. It is their stand that no construction is being carried out by the company near the tank as alleged in the petition.
It is also their case that if the level of the banks is increased then the water level in the surrounding areas would rise benefiting the villagers so far as agricultural activities are concerned. At present the water level is very low and even if sluice valve is opened, water would not float even half a kilometer.
We have heard Mr.Mukul Sinha, learned counsel appearing for the petitioners, Mr.H.S.Munshaw, learned counsel appearing for respondent no.1, Mr.P.K.Jani, learned Government Pleader for respondent no.2 – State of Gujarat, and Mr.Premal R.Joshi, learned counsel appearing for respondent no.3 – private company.
Having heard the learned counsel for the respective parties and having gone through the materials on record, the picture that emerges is that respondent no.3 has been allotted land by the State Government to promote a tourism project. Adjacent to this land there is a natural reservoir. Water gets accumulated in this reservoir during monsoon and it also appears that through canals water is being supplied from the said reservoir for the purpose of irrigation. On account of increase in the level of the banks, it appears that some problems cropped up resulting in blocking of the canals. As the canals got blocked, the water stopped flowing and that is the reason why the villagers have raised hue and cry as they are not getting sufficient quantity of water for the purpose of irrigation.
At the outset, we may state that Mr.Mukul Sinha, learned counsel appearing for the petitioners made it very abundantly clear before the Court that the petitioners are not against the allotment of land in favour of respondent no.3. Mr.Sinha submitted that the petitioners are not even concerned as regards the rate at which the land has been allotted in favour of respondent no.3. Mr.Sinha confines his grievance only to the extent that due to the project undertaken by respondent no.3, the canals have got blocked and the water has stopped flowing through the canals, resulting in lot of difficulties so far as the irrigation activities is concerned. Mr.Sinha, therefore, submitted that suitable directions be issued in this regard to the respondent – authorities to ensure that canals are cleaned and water starts flowing through the said canals.
As the issue being very technical and since this Court has no expertise in the subject, vide order dated 21st June 2012, we thought fit to ask the Chief Engineer, Irrigation Department to personally remain present before us. On 28th June 2012, the Chief Engineer of the Irrigation Department personally remained present and explained to us the situation.
According to the Chief Engineer, due to raising of the height of earth work undertaken by respondent no.3, the width of the dam also got increased resulting in blocking the Head Regulator and also part of the canal. The Engineer explained that to make the Head Regulator workable and usable, it is necessary and essential to remove the earth work and also to remove the earth from the canal on both the sides i.e. upstream as well as downstream.
The Engineer also explained to us that respondent no.3 was telephonically instructed to remove the unauthorized additional earthen work so that the Head Regulator could be opened and the irrigation facility could be restored.
As respondent no.3 failed to carry out the necessary work, the Deputy Executive Engineer was asked to prepare an estimate for inviting tenders to carry out the work. Respondent no.3 has agreed to deposit a sum of Rs.12 lac to enable the authorities to undertake the work which is necessary to make the Head Regulator workable.
After understanding as to what the Chief Engineer had to say, we inquired with the Chief Engineer as to within what period of time the necessary work would be undertaken to make the Head Regulator workable and also to remove the earth from the canal so as to make the water flow smoothly through the canal. The Engineer explained that at present the water level was of 32 ft. and as the total storage capacity of water in the dam is 60 MC ft., it was not feasible to undertake the work. However, the Chief Engineer, Irrigation Department, assured us by making a statement that time upto 31st January 2013 be granted to complete the work so as to make the Head Regulator workable and also to see that water starts flowing through the canal for the purpose of irrigation.
We were also assured by the Chief Engineer, Irrigation Department that the villagers will be supplied potable water as well as water for the purpose of irrigation. The Engineer explained to us that at present pipes are being used to draw the water for the purpose of irrigation.
Taking into consideration the fact that the Chief Engineer of the Irrigation Department has assured us by making a statement that the authorities would carry out the necessary work by 31st January 2013 to ensure that the Head Regulator becomes functional and the work of removing the earth from the canal on both the sides i.e. upstream as well as downstream will also be completed so that water starts flowing through the canal, we do not find it necessary now to further adjudicate this matter by continuing with this Public Interest Litigation.
We, therefore, direct the respondent – authorities, more particularly, the Chief Engineer, Irrigation Department, Rajkot, to ensure that the Head Regulator is made workable and usable by removing the earth and also by removing the earth from the canal on both the sides i.e. upstream as well as downstream so as to ensure smooth flow of water through the canal for the purpose of irrigation.
We also direct the authorities to ensure that until the necessary work is carried out by 31st January 2013, potable water is being supplied to the villagers as well as provision be made for supply of water for the purpose of irrigation regularly.
With the above observation and directions, we close this Public Interest Litigation and dispose of this petition accordingly. Interim order granted earlier stands vacated.
On the facts and in the circumstances of the case, there shall be no order as to costs.
(Bhaskar Bhattacharya, C.J.)
(J.B.Pardiwala, J.)
/moin