Bombay High Court
Manisha Shailesh Choudhari vs The State Of Maharashtra And Others on 20 February, 2018
Author: S.S.Shinde
Bench: S.S.Shinde
11.2018PIL
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
PUBLIC INTEREST LITIGATION NO.11 OF 2018
Manisha w/o. Shailesh Choudhri,
Age 25 years, Occ.Household,
R/o. Garkheda, Post Chite
Pimpalgaon, Tal. & Dist. Aurangabad
Mob.No.9604181819
Aadhar No.839963224519. PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Principal Secretary,
Rural Development Department,
Mantralaya, Mumbai.
2. The District Collector,
Aurangabad.
3. The Executive Engineer,
Aurangabad Irrigation Division,
Aurangabad.
4. The Section Officer,
Aurangabad Irrigation Branch
No.2, Chite Pimpalgaon,
Tal. & District Aurangabad. RESPONDENTS
...
Mr.S.S.Thombre, Advocate for the Petitioner
Mr.A.B.Girase, GP with Mr.S.B.Yawalkar,
Addl.G.P. for Respondent Nos.1 and 2 / State
Mr.B.R.Survase, Advocate for respondent nos.3
and 4.
Mr.S.V.Natur, Advocate for intervenor.
...
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11.2018PIL
2
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Reserved on : 12.02.2018
Pronounced on : 20.02.2018
JUDGMENT:(Per S.S.Shinde, J.):
1] This Public Interest Litigation is filed with the following prayer:
B. By issuing writ of Mandamus or any other writ, order of directions in the like nature, direct the respondent authorities not to release the water from the Sukhana Dam for the agricultural purposes with further direction to reserve the water for the drinking purposes only and for that purpose issue necessary orders;
2] It is the case of the petitioner that, the petitioner is a Sarpanch of village Garkheda and is agitating the grievance of the public in general from the village Garkheda and other adjoining villages and the surrounding area. The villages, namely, ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 3 Garkheda, Mangrul, Takli Mali, Chitte Pimpalgaon, Hivara, Tongaon, Jadgaon, Chitegaon, Kumbephal and Apatgaon are getting the drinking water from the Sukhana Dam and all the villagers from the above-mentioned villages are totally dependent on the water of Sukhana Dam so far as the drinking water is concerned. Though the rain fall during the current year was satisfactory but considering the today's availability of water, only 28% water is available in the Sukhana Dam, and therefore, if the water from the Dam is released for the agricultural purposes, there would be acute scarcity of water in the above-mentioned villages during the summer period i.e. from March to June, 2017, and therefore, to avoid the same, the respondent authorities are required to be directed to reserve the water of the Sukhana Dam for the drinking purposes only. The petitioner and other villagers have filed applications to ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 4 the authorities and prayed to stop releasing the water for the agricultural purpose and reserve the same for drinking purpose only.
On 2nd November, 2017, the respective Grampanchayats have also passed the Resolutions and it is unanimously resolved by all the Grampanchayats that, the water from the Sukhana Dam is required to be reserved for drinking purpose only and it is required to stop releasing the water for the agricultural purposes. In spite of the specific application filed by the petitioner and other villagers and the Resolutions passed by the respective Grampanchayats as mentioned above, respondent no.4 has released the water through the canal for the agricultural purposes from the Sukhana Dam on 16.01.2018 and to that effect the letter is also issued to the Grampanchayat, Garkheda on 16.01.2018 itself. It is stated in the said letter that as per the orders of the ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 5 Executive Engineer i.e. respondent no.2, the water is released. For last four to five years, there was no satisfactory rain fall in the State and more particularly in the Marathwada Region, and only for this year, there was satisfactory rain but in spite of that, now only 28% water is available in the Sukhana Dam, and therefore, considering the fact that near about 18 to 22 villages are depending on the water of the Sukhana Dam for the drinking purposes, the respondent authorities are required to be directed to stop releasing the water from the Sukhana Dam for the agricultural purposes and reserve the water for the drinking purposes only. 3] Learned counsel appearing for the petitioner submits that near about 20 villages are depending on the water of Sukhana Dam for the drinking purposes, and therefore, if the water from the Sukhana Dam is not reserved for the drinking purposes and ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 6 is released for the agricultural purposes, it would cause scarcity of water during the period of summer i.e. from March to June, 2018 and therefore, in the interest of justice, the respondent authorities are required to be restrained from releasing the water from the Sukhana Dam for the agricultural purposes and to reserve the same for the drinking purposes only.
4] Learned counsel appearing for the petitioner invites our attention to the National Water Policy [2012], and submits that the respondents are bound to give priority to release the water for the drinking purpose. The requirement of the drinking water is for both; the human beings and also to the animals. It is submitted that respondent no.2 did not apply mind to the relevant aspects, and in particular availability of the water, and if such water is released for irrigation purposes, whether ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 7 the afore-mentioned villages would face scarcity of water for the purpose of drinking. Learned counsel invites our attention to the minutes of the meeting held on 23.12.2016 wherein as many as 20 Officers participated in the said meeting, which was presided over by the Guardian Minister of the District. In his submission for the current year i.e. for the year 2017-18, no such meeting has been conducted, and therefore, the Collector had no authority to file such affidavit stating that there is sufficient quantity of water for the drinking purpose to the villagers and animals residing in the afore-mentioned villages.
5] On the other hand, learned Government Pleader relying upon the averments in the affidavit in reply on behalf of respondent no.2 submits that the river Sukhana is Tributary of Godavari river. The Irrigation Department of the State of ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 8 Maharashtra has constructed the Sukhana Medium Project on the said river in Aurangabad District in the vicinity of Garkheda, Mangrul, Chitte Pimpalgaon, Jalgaon and Apatgaon villages in Aurangabad Taluka. The said Sukhana Medium Project has been constructed in the year 1966-67. The total water storage capacity of the Sukhana Medium Project is 18.50mm3. The dead storage capacity of the said Sukhana Medium Project is 2.85 mm3. As on 19.01.2018 as per the report of the Executive Engineer, Irrigation Department, Aurangabad, the total water storage capacity of Sukhana Medium Project is 18.50 mm3. The live water storage as on 19.01.2018 is 4.870 mm3. The dead water storage capacity of the Sukhana Medium Project is 2.850 mm3.
6] It is submitted that presently by calculating the said available live water storage, 400 crore litres of water is ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 9 available in the Sukhana Water Reservoir. As against the available live water storage of the said project, the Executive Engineer, Water Supply, Zilla Parishad, Aurangabad, vide requisition letter dated 30.10.2017, has requested respondent no.2 to reserve 0.1005 mm3 water quantity for the drinking purpose of the villages Mangrul, Jadgaon, Garkheda, Apatgaon and Tongaon, during the period ending upto 15th July, 2018. For the earlier year 2014-15, 2015-16 and 2016-17, the water quantity reserved for the drinking purpose was 0.1094 mm3 i.e. around 10 crore liters proved sufficient. Therefore, even for the current year 2017-18 i.e. upto 15th July, 2018, the reservation of water upto 0.1005 mm3, if calculated in litres comes to 10.50 crore litres which is sufficient for drinking purpose till 15th July, 2018 to the entire population of the above referred villages, which is calculated at 7,806 as per the ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 10 latest census. The Sukhana Medium Project is designed for the seasonable irrigation purpose. After making preliminary reservation for drinking purpose, the Canal Advisory Committee of the Irrigation Department, in its meeting dated 10.11.2017, has resolved to provide water for the irrigation requirements of farmers and the water user Association from the available water in the Sukhana Medium Project. Accordingly, the first rotation of water upto the quantity 1.23 mm3 [120 crore litres] was released on 07.12.2017 to 15.12.2017. So also the second rotation of water upto 1 mm3 has been released by the Irrigation Department from 16.01.2018 to 20.01.2018. Thus, till 20.01.2018, the total quantity of water released from the canal of the Sukhana Medium Project for irrigation purpose is calculated at 2.23 mm3. Even after release of the above-referred quantity of water for irrigation purpose as on ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 11 19.01.2018, there is approximately 4.870 mm3 of water in the Sukhana Medium Project.
7] It is submitted that Shri Uday Khanderao Pawar has filed representations in the office of the Divisional Commissioner, Aurangabad on 24.10.2017, 25.10.2017 and 09.11.2017, thereby requesting for issuance of direction to the Irrigation Department for release of the water from the Sukhana Medium Project for irrigation purpose. The Agriculturists of villages Pimpri Khurd, Pimpri Bk., Husenpur, Sanjkheda, Daygavhan, Ambikapur, Shahapur and Pandhri Pimpalgaon, Taluka Aurangabad has also submitted requesition dated 15.12.2017 in the office of respondent no.2, thereby requesting for issuance of necessary directions to the Irrigation Department to respondent no.3 for releasing the water from the Sukhana Medium Project for irrigation purposes. Even after release of the water for irrigation purposes ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 12 as stated above, there is sufficient water for the said villages for drinking purpose upto 15.07.2018 as such the entire contentions raised by the petitioner are without any merits and submits. The respondent authorities have duly taken care to have sufficient quantity of water for the drinking purpose required upto 15.07.2018, and simultaneously the respondent authorities are also required to consider the fact that the water was required to be released for irrigation purposes.
8] Learned counsel appearing for respondent nos.3 and 4 relying upon the averments in the affidavit-in-reply filed on behalf of respondent no.3 submits that the river Sukhana is Tributary of Godavari river. The Competent Authorities of the State of Maharashtra has constructed the Sukhana Medium Project in the year 1966-67. The storage capacity of the Project is 18.50mm3 ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 13 and dead storage capacity is 2.85 mm3. The live water stored in the said reservoir/Dam was 8.82 mm3 i.e. 47.68% on 15.08.2017. The water under the Dam is provided to the concerned beneficiaries for seasonal in nature, and there is no perennial water for horticulture/agriculture purpose for all the year. The duly constituted Canal Advisory Committee, by its meeting dated 10.11.2017, resolved to provide water for Rabbi Crop 2017-18, and accordingly, as per the requirement of the beneficiary farmers / Water User Association [W.U.A.] released the water from the Dam through canal. The first rotation commenced on 07.12.2017 to 15.12.2017 and the total water released is 1.23 mm3. The Competent Authorities has also released the water i.e. the second rotation from 16.01.2018 to 20.01.2018, and the water released quantity 1.00 mm3. The contention of petitioner is that near about 20 villages are ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 14 depending on the water of Sukhana Dam for the drinking purpose, is not true and correct one, and the various villages, namely Garkheda, Mangrul, Takli Mali, Chitte Pimpalgaon, Hivara, Tongaon, Jadgaon, Chitegaon, Kumbephal and Apatgaon require water for drinking purpose, and thereby prayed to stop releasing the water for agricultural purpose and reserved the same for drinking purpose only. Therefore, the petitioner directly approached to this Court without getting the water reservation for drinking purposes from the appropriate Dam authorities of the State of Maharashtra. The Competent Authorities of the State of Maharashtra has given power to the concerned Commissioner / Collector of the District during scarcity of water for drinking purposes. Accordingly, the District Collector, Aurangabad reserved the water for drinking purposes for the year 2016-17 from ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 15 the medium and minor irrigation Dams, and as per the meeting dated 23.12.2016 under the chairmanship of the concerned Guardian Minister from Sukhana Medium Project the water reservation for five villages i.e. Mangrul, Jadgaon, Garkheda, Apatgaon, Tongaon, the water reservation for the years 2014-15, 2015-16 and 2016-17 was 0.1094 mm3 i.e. 10 crore litres. There is no communication or reservation of water for drinking purposes regarding the various villages contended by the petitioner for the current year. Presently, under the reservoir / Dam, the total live storage water is 400 crore litres water, is available as on today. The petitioner contended that the 10 villages water requirement for drinking purposes considering the said fact if the competent authorities of the State of Maharashtra reserved the water for the drinking purpose, the population of the said ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 16 villages as per the Sensex 2011 was 25897 and considering the yearly growth it comes around 34000 for remaining summer season upto 15.07.2018 the sufficient water is available and for further six months 30 crore liters water is expected and even considering the evaporation losses the water is available in the reservoir.
9] It is submitted that the allegation made by the petitioner that water has been released for agriculture purposes, and thereby prayed for not to release the water from the Sukhana Dam for the agricultural purposes is not correct. In fact, the Competent Authorities released the water from the Dam as per the norms and guidelines issued by the Government, and there is no breach of violation of the rules. Respondent no.3 has been released two rotation only and rotation for rubbi crops only and there is no need to release the water for agricultural ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 17 purposes in the summer season. There is a procedure to reserve the water for drinking purposes, vide Government Resolution dated 10th August, 2004. The Grampanchayat authorities has to put the demand through the District Water Reservation Committee headed by Guardian Minister before 31st October every year, and the water reservation should be based on the norms given in the above Government Resolution dated 10th August, 2004. The Grampanchayat Authorities has to pay 50% amount of water charges within 15 days from the sanction date of water reservation, and if they fail to do so, the reservation cancels automatically as per the norms given in the said Government Resolution. The District Water Reservation Committee has not made any communication for reservation of drinking water for current year. However, 60 crore litres of water has been considered for drinking purpose, and it is sufficient till ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 18 15th July, 2018. The current water storage is 400 crore litres, which is much more than requirement. The Sukhana Dam is designed for seasonal irrigation purposes only. No perennial crops like horticulture are permitted for irrigate area of this project. The Water Resources Department has not given any sanction to lift water for any kind of Horticulture crops. Therefore, the petitioner is not entitled to claim any preferential right to get the supply of water in a particular manner or in a particular quantity of water, and in the petition made vague allegation.
10] One Mr.Udayraj s/o. Khanderao Pawar and others have filed Civil Application No.1044/2018 in the present Public Interest Litigation through Advocate Mr.S.V.Natu. According to the said applicants, the water was released for the first time after ten ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 19 years on 07.12.2017 for seven days, keeping in view the availability of the water in the Sukhana Dam. It is submitted that it is for the authorities to consider available stock of water in the dam and also, whether water can be released for irrigation purpose.
In the said application an allegations are made against the petitioners. However, at this juncture, it is necessary to clarify that this Court is not considering the allegations made in the Public Interest Litigation or in the reply filed by the respondents or in the afore-said Application. In case the parties have grievances to make relying upon the said allegations or factual aspects, they are at liberty to agitate those grievances before the appropriate forum including Tribunal established for the purpose resolving water dispute. However, we are not inclined to enter into such exercise. ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 :::
11.2018PIL 20 11] Pursuant to the notices issued to the respondents, respondents have filed affidavit-in-reply. Upon careful perusal of the said affidavit-in-reply filed by respondent no.3 i.e. the District Collector, Aurangabad, it is stated that even after release of the water for irrigation purpose, there is sufficient water for the villages for drinking purpose up to 15th July, 2018. Respondent no.3 has mentioned in detailed about availability of the water, water quantity required for drinking purposes and if water is released for irrigation / agriculture purposes, what would be the position of storage / stock of water for the purpose of drinking.
12] Respondent nos.3 and 4 have also in detailed stated about storage capacity of the project, availability of the water for the purpose of drinking and also for agriculture giving the factual minute details. It is ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 21 stated that the District Collector, Aurangabad reserved the water for drinking purposes from the various dams for the year 2016-17 from medium and minor irrigation dams and as per meeting dated 23.12.2016 under the chairmanship of concerned Guardian Minister from Sukhana Medium Project, water reservation for five villages i.e. Mangrul, Jadgaon, Garkheda, Apatgaon and Tongaon. It is further stated that, even if water is released for the irrigation/agriculture purposes, there would be sufficient quantity of water in the dam, which can cater the need of drinking water to the aforesaid villages till 15th July, 2018. Keeping in view the reply filed by respondent nos.2 to 4, it is abundantly clear that, they have made clear statement in their affidavits about availability of the water in the dam; the total quantity of water required for the drinking purpose till 15th July, 2018, and ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 22 also if the water is released for agriculture/irrigation purposes, still the water would be available for drinking purpose. The affidavits filed by those respondents are on the basis of the record maintained by their office. This Court cannot undertake exercise of adjudication of the disputed claims, which are based upon the factual assertions; nor this Court possesses expertise to resolve such disputes. 13] It is true that as per National Water Policy [2012] first priority needs to be given to the drinking water and thereafter for other purposes, as has been stated in the said policy. However, it is for respondent authorities to consider such policy, keeping in view the availability of the water stock in the dam, and it is not for this Court to express any opinion about the said aspects. We leave it to the wisdom of respondent nos.2 ::: Uploaded on - 20/02/2018 ::: Downloaded on - 21/02/2018 01:55:53 ::: 11.2018PIL 23 to 4 to take appropriate decision keeping in view the availability of the water in the dam, quantity of water needed for the drinking purpose for the villages about whom decision has been taken by the District Administration to supply drinking water from Sukhana dam, the purpose for which dam has been constructed and further keeping in view the availability of water, whether water can be released for the purpose of agriculture / irrigation.
14] With the above observations, the Public Interest Litigation stands disposed of. In view of disposal of Public Interest Litigation, the Civil Application No.1044/2018 also stands disposed of.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
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