Bombay High Court
Vikrant Rupendra Kale And Another vs The Union Of India And Others on 19 December, 2019
Equivalent citations: AIRONLINE 2019 BOM 1797, 2020 (2) ABR 264
Author: Avinash G. Gharote
Bench: Prasanna B. Varale, Avinash G. Gharote
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C.A. 14845-2018 in PIL 133-2016.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
5
CIVIL APPLICATION No. 14845 OF 2018
in
PUBLIC INTEREST LITIGATION NO. 133 OF 2016
10
1. Vikrant S/o Rupendra Kale,
age 24 years occupation agriculture
R/o Wakdi Dhangarwadi Tal. Rahata Dist. Ahmednagar.
15
2. Nanasaheb S/o Jairam Jaware,
age 48 years occupation agriculture
R/o Jawalke Tal. Kopargaon Dist. Ahmednagar
...Applicants
20 Versus
1. The Union of India
through its Water Resources Department,
New Delhi.
25
2. The Chairman,
CWC Sewa Bhawan,
R.K. Puram, New Delhi.
30 3. The Joint Secretary & Finance Adviser,
Minister of Water Sources,
RD & GR, Room No. 401 S.S. Bhawan,
New Delhi.
35 4. The State of Maharashtra
through its Irrigation Department,
Mantralaya, Mumbai.
5. The District Collector,
40 Ahmednagar.
6. The Executive Director,
Godavari Marathwada Irrigation Development Corporation,
Aurangabad.
45
7. The Chief Engineer,
Irrigation Department,
Nashik Division, Nashik
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C.A. 14845-2018 in PIL 133-2016.odt
8. The Superintendent Engineer,
Irrigation Department, Ahmednagar.
9. The Executive Engineer,
5 Sangamner Dist. Ahmednagar.
10. The Sai Baba Sansthan, Shirdi
through its Chief Executive Ofcer,
at Shirdi Taluka Rahata Dist. Ahmednagar.
10
11. Kopargaon Municipal Council,
through its Chief Ofcer, Kopargaon
Taluka Kopargaon Dist. Ahmednagar.
15 12. Shirdi Nagar Panchayat
at Shirdi Tal. Rahata Dist. Ahmednagar
through its Chief Ofcer, Satish Ganpat Dighe,
age 34 years occup. service
R/o Shirdi Tal. Rahata Dist. Ahmednagar
20 ..Respondents.
Mr. A.B. Kale, Advocate for applicants.
Mr. S.B. Deshpande, Asstt. Solicitor General for Respts.
No.1 to 3
25 Mr. A.B. Girase, Govt. Pleader for Respts. No. 4 & 5
Mr. B.R. Surwase, Advocate for Respts. No. 6 to 9
Mr. N.R. Bhavar, Advocate for Respt. No. 10
Mr. V.J. Dixit, Senior Advocate, i./by Mr. M.M. Patil-Beedkar,
Adv. for Respt. No.11.
30 Mr. V.D. Hon, Senior Advocate, i./by A.H. Hon, Adv. & Mr. A.D.
Sonkawade, Adv. for respondent No.12
Mr. R.L. Kute, Adv. for intervener (in C.A. No. 4024/2017)
Mr. Sachin S. Deshmukh, Adv. for intervener (in C.A. No.1564 of
2019)
35
CORAM : PRASANNA B. VARALE &
40 AVINASH G. GHAROTE, JJ.
Reserved on : 16th October, 2019
Pronounced on : 19th December, 2019
45
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C.A. 14845-2018 in PIL 133-2016.odt
ORDER :(PER : AVINASH G. GHAROTE, J.)
1. The petitioners/applicants have fled a public interest litigation, in respect of Nilwande Project, which comprises of the 5 Nilwande dam, on Pravara river, which is a tributary of Godavari river in Ahmednagar District of the State. The position which emerges from the averments in the public interest litigation regarding the background of the Nilwande Dam is as under:
10 I) A major irrigation project was contemplated on river Pravara, for which four alternative dam sites near villages (a) Mhaladevi,
(b) Savantwadi, (c) Digambar and (d) Nilwande, were considered and the site at village Mhaladevi Taluka Akole, was fnalised.
15 Ii) A Project Report was prepared and Administrative Approval was granted on 14/07/1970 for Rs. 793.31 lacs, vide G.R. No. PIM- 7470/16116-IP.
Iii) Site approval was granted, vide G.M. No. UPP/1092/T/594/(135/92) M.P.-1, Mantralaya, dated 27/04/1992, 20 which envisaged gross storage of 6.34 TMC to irrigate 18848 hectares of Akole, Sangamner, Shrirampur and Kopargaon Talukas of Ahmednagar District.
iv) Revised administrative approval was accorded for Rs. 1586.78 lacs, vide G.R. No. MLD/1176/2331/834-MAJ-1 dated 23/03/1977. 25 v) There was severe opposition from the residents of the villages ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {4} C.A. 14845-2018 in PIL 133-2016.odt at the dam site at Mhaladevi, as a result of which, the dam site was considered to be shifted near village Chitalvedhe as per decision dated 04/07/1977. The projected estimated costs at this time was Rs. 7000.23 lacs, which in April 1984 was revised 5 to Rs. 10275.34 lacs.
vi) Again due to opposition, the site was proposed to be shifted to village Nilwande, which was investigated and approved vide G.R. No. UPP/1092/T/594/(135/92) - MP-1 dated 27/04/1992.
vii) The Government thereafter gave second administrative 10 approval as per letter No. CR/UPP/1092/623/92 - MP - 1 dated 22/06/1993 for Rs. 23,440.34 lacs, Nilwande II.
viii) The layout for the dam was approved vide G.R. No. UPP/1093/T-
1202/(224/93) - MP-1 dated 05/03/1994.
ix) The construction of the dam is stated to have commenced in 15 1993 and it is stated that the Nilwande Dam is already constructed about 20 years back and is reported to be having a gross storage capacity of 8.32 TMC (236 M.Cum.) and live storage of 8.198 TMC. The total water usage is claimed to be 10.47 TMC, out of which 9.72 TMC is said to be for irrigation 20 and 0.46 TMC is said to be for drinking purposes.
x) It is further submitted that Nilwande Dam is having two main canals viz. left canal having a length 97 Kms. and right canal having length of 85 Kms., besides which there are also two high level pipe canals and four lift irrigation schemes from the ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {5} C.A. 14845-2018 in PIL 133-2016.odt reservoir and the total irrigable command area is claimed to be 68878 hectares.
As the work of the main canal system was not yet completed, the 5 public interest litigation was fled with a basic prayer claiming completion of the project and additional reliefs have been claimed by way of amendment. The relevant prayers are quoted hereunder for understanding the nature and reliefs claimed in the public interest litigation.
10 "B) To direct the respondents to complete the project as expeditiously as possible by providing the fnancial assistance for the said project and for that purpose issue necessary writs and orders. 15 C1) To direct respondents to include the name of Nilwande Project in the list of newly framed scheme of the Central Government viz. Prime Minister Irrigation Scheme which is introduced to provide fnancial assistance to incomplete 20 irrigation projects by issuing writ of mandamus or any other writ or order in the like nature and for that purpose issue necessary orders;
C2) To direct respondents to complete the 25 incomplete construction of the left bank and right bank canal of Nilwande dam by issuing Writ of mandamus or any other writ or order in the like nature and for that purpose issue necessary order;
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{6} C.A. 14845-2018 in PIL 133-2016.odt C3) To direct the respondents to prohibit the use of the water stored in Nilwande dam for any other area or purpose than the area of benefcial zone of Nilwande dam by issuing Writ of 5 mandamus or any other writ or order in the like nature and for that purpose issue necessary orders;
D) To direct the respondents authorities to act 10 upon the project report on priority basis without diverting the water contrary to the project report and for that purpose issue necessary writs and orders."
15 2. Time to time the public interest litigation was heard and various orders have been passed therein. It is material to state that Public Interest Litigation No. 133/2016 has been tagged with Writ Petition No. 4856/2018 - Gunjalwadi Village Panchayat Vs. State and, Public Interest Litigation No. 104/2018 - Damodhar K. Game and 20 others Vs. State.
3. During the pendency of the public interest litigation, the present civil application has been fled on 07/12/2018 by the petitioners of Public Interest Litigation No. 133/2016 claiming the 25 following reliefs:
" B) To quash and set aside the order/permission granted by GMIDC by its letter dated 26.11.2018 in favour of Shirdi Sansthan & Kopargaon 30 Municipal Council which is at Exhibit "A7", by ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {7} C.A. 14845-2018 in PIL 133-2016.odt holding that the same is arbitrary and violative to Articles 14 & 19 1(g) and Article 21 of the Constitution of India and also contrary to MWRRA Act, 2005 and for that purpose issue necessary 5 action.
C) To direct the respondent to decide the proposal submitted by 182 villages for getting the drinking water within the period of one month from today and for that purpose issue necessary 10 orders."
4. The contention in this civil application is that there are 182 villages in the command area of the main canals, however, as the canals are incomplete, there is no supply of water for drinking or 15 irrigation in these 182 villages. It is further submitted that as per the norms of the Maharashtra Water Resources Regulatory Authority (MWRRA), 15% water is required to be used for drinking purposes, 10% for industrial use and the rest for irrigation purposes. It is further contended that Shirdi Sansthan, Shirdi and Kopargaon towns 20 do not fall within the command area/benefted zone of Nilwande dam, inspite of which with the help of the then Minister, the proposal was initiated, which has resulted in passing the impugned order, whereby inspite of drinking water being available and supplied to the respondents No. 10 to 12 from the Darna river, allocation for 25 drinking water has been made to them from Nilwande dam. The impugned order, therefore, is claimed to be illegal and contrary to law. The respondents No. 10 to 12 were initially not parties to the ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {8} C.A. 14845-2018 in PIL 133-2016.odt civil application, they have subsequently been added as party respondents in pursuance to the order of this Court dated 20/12/2018.
5
5. On 20/12/2018, this Court upon hearing the learned Counsel for the respective parties has passed an order, the consequences of which has resulted in the hearing of this civil application, to appreciate which, in its proper perspective, it is 10 necessary to quote the same, which is as under:
" Mr. Kale, learned Counsel appearing for the applicants/petitioners submits that the petitioners were permitted to amend the petition by adding party respondents to the petition and 15 inadvertently, added respondents are not brought on record in the civil application, as such, the applicants be permitted to amend the application by adding party respondents, who are permitted to add as party respondents in the petition under 20 the order of this Court. Mr. Kale, learned Counsel submits that he will carry out amendment forthwith.
2. Oral prayer is allowed. Amendment be 25 carried out forthwith.
3. It is brought to our notice that document placed on record along with application i.e. communication dated 10th October, 2018 is 30 issued by the Chief Executive Officer, Shri ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {9} C.A. 14845-2018 in PIL 133-2016.odt Saibaba Sansthan Managing Trustees, Shirdi to the Principal Secretary, Law and Judiciary Department, State of Maharashtra. By this communication, it is submitted that the Sansthan 5 has issued e-tenders for a joint water project of phase-I and phase-II. It is submitted before us that Sansthan is awaiting the approval by the State Government to issue work order for phase- I. Five bidders responded the said tender notice.10
4. Another document is placed on record dated 5th December, 2018. By this communication, Sansthan again made a request to grant administrative approval as well as 15 permission to issue work order.
5. Mr Hon, learned Senior Advocate appearing for Shirdi Municipal Council submitted before us that Municipal Council is interested in 20 undertaking the work of phase-I as expeditiously as possible, as work relates to replacement of the old damaged pipe line and further delay would result in inconvenience caused to the residents and also may result in health hazardous 25 situation. It was also submitted that applicants'/petitioners' grievance would be more concerned to phase-II work and applicants cannot raise any grievance to phase-I as it only relates to change of the pipe line and nothing to 30 do with the distribution of water. Learned Senior Advocate then submitted that the matter is ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {10} C.A. 14845-2018 in PIL 133-2016.odt before the State Government, the Municipal Council is hopeful of receiving early response from the State Government on persuasion of the Council.5
6. There is interim order passed by this Court on 8th June, 2018 in Public Interest Litigation No.133 of 2016. A communication/Government Resolution dated 7th February, 2018 was brought 10 to the notice of this Court and it was submitted before this Court that unless necessary certificates are issued and order as regards reservation of water for water supply project is passed by Godavari Irrigation Development 15 Corporation, no steps for enforcement of the claim shall be taken.
7. The Division Bench of this Court, by an order dated 18th September, 2018, in Public 20 Interest Litigation No.133 of 2016, observed that the State Government shall adhere to the decision contained in the Government Resolution dated 7th February, 2018 as well as the communication dated 7th June, 2018 placed on 25 record today and marked 'X' for identification.
8. Mr Girase, learned Government Pleader submitted that the matter is now proceeded further and the order is passed by Water 30 Regulatory Authority and then the order is passed by Godavari Irrigation Development Corporation on 26th November, 2018.::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 :::
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9. Mr Kale, learned Counsel for the applicants submitted that if by taking recourse to the order dated 26th November, 2019, passed by Godavari Irrigation Development Corporation, the 5 respondents proceeded further for taking steps in respect of phase-II, the purpose of approaching this Court by filing this application and praying for interim order would be frustrated.
10 10. Mr Bhawar, leaned Counsel for Sansthan also supported the submissions of Mr Hon, learned Counsel and submitted that Sansthan be permitted to proceed further in respect of phase- I and activities undertaken by Sansthan in 15 respect of phase-I of tender notice would be subject to outcome of the petition as well as further orders which would be passed by this Court in the present application and Sansthan would not claim any equity in the matter. This 20 statement is made by the learned Counsel on the instructions from the officer of the Sansthan, who is present in this Court.
11. In view of the above referred submissions, 25 we allow the Sansthan and Shirdi Municipal Council to proceed only in respect of Phase-I subject to the statement before this Court on behalf of the Sanshan that it will not claim any equity in the matter and the steps taken by 30 Sanshtan and Shirdi Municipal Council are subject to decision on the application and the writ ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {12} C.A. 14845-2018 in PIL 133-2016.odt petition.
12. We direct the respondents including Sansthan and State Government not to proceed 5 in respect of phase-II until further orders.
Post the application along with petitions on 16th January, 2019."
10 A perusal of the above order would demonstrate that the respondents No. 10 to 12 intended to undertake the work for a joint water project in Phase I and Phase II, for which approval was awaited from the State Government, for which e-tender was also issued, the work of Phase I being related to replacement of the old damaged 15 water pipelines for distribution of water. Inspite of opposition by Mr. Kale, learned Counsel for the applicants, to the efect that if by taking recourse to the order dated 26/11/2018 passed by the Godavari Irrigation Development Corporation (G.I.D.C.), the respondents proceed further for taking steps in respect of Phase II, 20 the purpose of approaching the Court by fling the present civil application and praying for interim orders, would be frustrated, and accepting the statement of the learned Counsel for the respondent- Sansthan and of Mr. Hon, learned Senior Counsel, that the activities undertaken by the Sansthan in respect of Phase I of the tender 25 notice would be subject to outcome of the petition as well as further orders, which may be passed by this Court in the present application ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {13} C.A. 14845-2018 in PIL 133-2016.odt and Sansthan would not claim equity in the matter, which statement was based upon the instructions of the ofcer of the Sansthan, who was present in the Court, the respondents 10 to 12 were permitted to proceed only in respect of phase I. Considering the 5 apprehensions of Mr. Kale, learned Counsel for the applicants, the respondents including the Sansthan and the State Government were directed not to proceed in respect of phase II until further orders.
6. On 09/10/2019, the matter was heard for quite some 10 time, whereupon certain directions were issued by us as contained in the said order, which are not germane for the purposes of deciding this civil application.
7. The matter was thereafter listed on 11/10/2019 on which 15 date Mr. N.R. Bhawar, learned Counsel appearing for respondent No. 10/ Saibaba Sansthan, Shirdi, made a statement that the work of phase I was nearing completion, as a result of which, the respondents No. 10 to 12 should be permitted to start the work of Phase II. This was vehemently opposed by Mr. Kale, learned Counsel 20 for the applicants. After hearing the respective learned Counsel for some time, when we inquired from Mr. Bhawar, learned Counsel for respondent No.10, whether the same undertaking as given in the order dated 20/12/2018, in respect of carrying out the work under Phase I, would be efective, if we considered permitting the work of 25 Phase II, he replied in the afrmative, however, Mr. Kale, learned ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {14} C.A. 14845-2018 in PIL 133-2016.odt Counsel for the applicants, at this juncture, banged his fle on the table and stated that he was not heard at all, whereas, we had been hearing him for quite some time. He, however, continued with his insistence of having not been heard, whereupon, it was pointed out 5 to him that since no equities would be claimed by the respondents No. 10 to 12 in case the Court arrived at a conclusion that the order dated 26/11/2018, passed by the Godavari Irrigation Development Corporation (G.I.D.C.), was found to be unsustainable by this Court, he ought not to have any objection regarding the permitting of work 10 under Phase II. He, however, insisted that civil application No. 14845/2018 be heard and decided, before any orders were passed relating to Phase II. Considering the nature of the issue, we agreed to hear civil application No. 14845/2018. Mr. Kale, learned Counsel thereafter addressed copious arguments on civil application No. 15 14845/2018 which continued till 16/10/2019.
8. The arguments of Mr. Kale, learned Counsel on Civil Application No. 14845/2018 can be summed up as under:
(i) The respondents No. 10 to 12 do not fall within the benefted 20 zone of the Nilwande Dam, therefore, they have no right to allocation of water of Nilwande Dam.
(ii) The respondents No. 10 to 12 are already being supplied water from Darna Dam and have been unable to use the entire allocation, therefore, there was no question of making any 25 additional allocation from the Nilwande Dam. ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 :::
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(iii) The proposal for claiming water from Nilwande Dam was at the behest of the then Minister and, therefore, is tainted by favouritism and is politically motivated.
(iv) Though the proposal for additional water requirement was 5 initially for Saibaba Sansthan only, but later-on Kopargaon is also added.
(v) The MWRRA, vide its order No. 9/2017 dated 22/09/2017, under the provisions of section 16(A)(1) of the MWRRA Act, 2005, has laid down the criteria for distribution of surface 10 water entitlement and the same was binding and no change could be made contrary thereto.
(vi) Though the distance between the point of lifting of water i.e. Nandur Madhmeshwar to Shirdi was 72 Kms. and the expenses for main pipeline would have been only Rs. 100 crores, 15 however, the allocation is being done from Nilwande Dam to Kopargaon via Shirdi, which is near-about 118 Kms., and the costing for the pipeline would be more than Rs. 400 crores.
(vii) Technical aspects have not been considered while passing the impugned order dated 26/11/2018.
20 (viii) Even on humanitarian grounds, the residents of 182 villages in the command zone of Nilwande dam are entitled to beneft of the water in the dam.
(ix) The impugned order is contrary to the provisions of the MWRRA Act, 2005.
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(x) Providing civic amenities is obligation of the Planning Authorities.
(xi) There was no necessity of transfer of water reservation from Darna Dam to Nilwande Dam.
5 Mr. Kale during the course of arguments has invited our attention to voluminous documents fled in the public interest litigation as well as in the various civil applications, which are pending, in support of his contentions.
10 9. Mr. Dixit, learned Senior Counsel, with learned Adv. Mr. Milind Patil appearing for respondent No.11/Municipal Council, Kopargaon and opposing the civil application, made the following submissions:
(i) The supply from Darna Dam was through an open canal, 15 which resulted in severe loss of water, which added to the inadequacy of the supply.
(ii) Considering the present allocation from Darna Dam, the residents of Kopargaon town were receiving water once in 15 days.
20 (iii) Darna Dam, which was constructed some time in the year 1912 and was an earthen work dam, was overburdened.
(iv) The order dated 26/11/2018 was passed after considering all the relevant parameters for sectoral allocation in light of the factual position of requirement of additional water for 25 respondents No. 10 to 12 and specifcally Shirdi Sansthan, ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {17} C.A. 14845-2018 in PIL 133-2016.odt considering the huge foating population of pilgrims in view of the temple of Shri Saibaba situated there.
(v) The work of left and right bank canals of Nilwande dam was at a very preliminary stage, where the work of excavation for the 5 canals, in some passage was recently initiated due to the intervention of the Court.
(vi) The sectoral allocation or the transfer of allocation of water was never absolute but was always subject to change, considering the changing circumstances and requirements of particular 10 areas/populace, and various other factors.
(vii) The determination of sectoral allocation or its transfer was the matter within the domain of experts in the feld, and the scope of judicial review was very restricted and narrow and the Court ought not to interfere in what was done by the 15 authorities under the powers granted to them, unless it was shown that the authority had exceeded its powers or had ignored the considerations for exercise of the powers.
(viii) Reliance was placed on 2013(12) SCC 226, Kachchh Jal Sankat Nivaran Samiti Vs. State of Gujarat 20
10. Mr. Hon, learned Senior Counsel, with learned Adv. Mr. Sonkawade, appearing for respondent No.12/Shirdi Nagar Panchayat, while opposing the application submitted as follows:
(i) The project report for need of additional water was prepared 25 by the Maharashtra Jeevan Pradhikaran (M.J.P.), who was ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {18} C.A. 14845-2018 in PIL 133-2016.odt appointed by the Shirdi Sansthan.
(ii) There is huge foating population at Shirdi Sansthan and in Shirdi town considering which the need for additional water was paramount.
5 (iii) The transfer of allocation from Darna Dam to Nilwande Dam was not an additional allocation, as once the supply from Nilwande Dam commenced, the allocation from Darna Dam, was to automatically stand terminated.
(iv) As per the new water policy of the Central Government, 10 transport of water through closed pipeline was mandatory, which was being complied with by making the request for laying the pipeline from Shirdi to Nilwande Dam for supply of water.
(v) The existing water supply system at Shirdi and Kopargaon, was 15 very old and had sprung leakages, which were unable to be plugged leading to wastage of water, which resulted in the entire system being replaced, which being the subject matter of phase I as granted by the Court, which was coming to an end, the need for laying the pipeline from Shirdi to Nilwande 20 Dam and integrating the same, was of paramount importance.
(vi) Water being a National resource, no one could claim exclusive entitlement over the same and the allocation for the same being statutorily governed.
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(vii) Reliance was placed on Society for Backlog Removal and Developments Vs. State, 2013 SCC Online Bombay 366 (paras 9, 27, 28) and the judgment in Marathwada Janata Vikas Parishad in P.I.L. No. 173/2013.
5
11. Learned Counsel Mr. Bhavar, appearing for respondent No. 10- Shirdi Sansthan, also opposed the application on the following grounds:
(i) Maharashtra Jeevan Pradhikaran was appointed for preparing 10 the proposal for allocation of water from Nilwande Dam and accordingly the proposal was prepared and submitted to the Authorities. Technical approval was granted on 25/01/2018 and approval of the Government was granted on 07/02/2018.
(ii) Respondent No.10 had already given an undertaking that the 15 commencement and completion of Phase II would be subject to the result of the petition and respondent No.10 would not claim any equities in case the issue was decided against it, in light of which there was no reason for the petitioners/applicants to object.
20 (iii) The question of allocation and distribution of water was a matter within the domain and jurisdiction of the Maharashtra Water Resource Regulatory Authority, which had rightly exercised the jurisdiction.
(iv) The issues as sought to be raised were already raised before 25 the MWRRA in case No. 7/2018 vide order No. 14/2018 dated ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {20} C.A. 14845-2018 in PIL 133-2016.odt 15/10/2018 and suo motu petition vide case No. 13/2018 in which order No. 15/2018 dated 17/10/2018 was passed.
(vi) Corrigendum on 07/02/2019 was issued by the GMIDC, whereby the initial reservation/allocation of 16.12 (nyÄeh-) was 5 reduced to 12.24 (nyÄeh-), which indicated that the allocation was not static but was always subject to change depending upon various factors.
12. Replying to the same, Mr. Kale, learned Counsel for the 10 applicants contended that corrigendum dated 07/02/2019 as issued by the GMIDC. is only an eye wash. The petition before the MWRRA bearing case Nos. 7/2018 was a proxy petition and suo motu case No. 13/2018 and the order passed therein were unsustainable in law.
15
13. Before adverting to the arguments of the parties, it would be material to note that the MWRRA Act, 2005 was enacted to provide for establishment of the Maharashtra Water Resources Regulatory Authority to regulate water resources within the State of 20 Maharashtra, with the purpose to facilitate and ensure judicious, equitable and sustainable management, allocation and utilization of water resources, fx the rates for use of water for agriculture, industrial, drinking and other purposes and matters connected therewith and incidental thereto. Under section 3, the Maharashtra 25 Water Resources and Regulatory Authority (MWRR Authority) is ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {21} C.A. 14845-2018 in PIL 133-2016.odt established as a body corporate. Section 11 delineates the power, functions and duties of the MWRR Authority. Clause (a) of section 11 confers power on the Authority to determine the distribution of entitlements for various categories of use and the equitable 5 distribution of entitlements of water within such category of use on terms and conditions. Clause (b) of section 11 confers powers to enforce the decisions or orders issued under the Act. Clause (c) confers powers to determine the priority of equitable distribution of water available at the water resource project, sub-basin and river 10 basin levels during periods of scarcity. Clause (g) empowers the Authority to lay down the criteria and monitor issuance of entitlements, which entitlements are to be issued by the River Basin Agency (R.B.A.), which criteria amongst other things has also to include the requirements, as specifed in sub-clauses (i) to (vii) of 15 Clause (g), which mandates that entitlements of all natures are to be issued by the River Basin Agency, based upon the directives, as contained therein. Clause (h) empowers the Authority to lay down the criteria for modifcation in entitlements for the diversion, storage and use of the surface and sub-surface waters of the State. Clause 20 (j) empowers the Authority to review the entitlements at intervals of not less than three years.
14. U/s. 16-A(1) the State Government is empowered to determine the sectoral allocation, consequent to which 25 determination under sub-section (2) thereof, the Authority is to ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {22} C.A. 14845-2018 in PIL 133-2016.odt determine the criteria for distribution of entitlements under Clause
(a) of section 11.
15. By Government Resolution dated 17/11/2016, under the 5 provisions of section 16-A(a) of the MWRRA Act, 2005, the sectoral allocation was determined. The same was 15% for drinking purposes, 10% for industrial use and 75% for agricultural use. Clause 2 of the above Govt. Resolution delineates the authorities competent to sanction the reservation within the sectoral allocation 10 for various purposes.
16. The MWRRA thereafter vide order No. 9/2017 dated 22/09/2017 determined the criteria for distribution of surface water entitlements by the River Basin Agency for domestic and industrial 15 uses, in exercise of powers conferred by section 11(q) of the MWRRA Act, 2005, and section 11(a) of the MWRRA Act (Amendment and Continuance) Act, 2011, by keeping in mind the Govt. Resolution dated 17/11/2016 and the State Water Policy, 2003, as modifed on 18/05/2011. It would be material to note that the State Water Policy 20 has given the frst priority for water use in domestic sector, followed by agricultural sector. Industrial Sector stands at third priority.
17. The respondents No. 10 to 12 are supplied water from the Darna Dam situated in Gangapur taluka of Aurangabad District. 25 As stated above, the Darna Dam has been constructed sometime in 1912 and is a earthen bank construction. The total project capacity ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {23} C.A. 14845-2018 in PIL 133-2016.odt of Darna dam is 219.82 Million Cubic Meter (MCM), however, because of accumulation of silt, the same stands reduced to 188.66 MCM. The sectoral allocation as per the G.R. dated 17/11/2016 for drinking water being 15% comes to 28.3 MCM., however, as of 2016- 5 2017, 45.42% i.e. 85.68 MCM, was being used for drinking purposes, which was way above the sanctioned sectoral allocation of 15%. It is further material to note that there are as many as 128 entities drawing water from the Darna Project, which includes the respondents No. 10 to 12. This is refected from Exh.'A-R-6' fled on 10 record of the P.I.L. at page 856. This would demonstrate that the capacity of Darna Project is already overstretched. As against a sectoral allocation of 28.3 MCM for drinking purpose, what was being utilized in the year 2016-2017 was 45.42 MCM. by as many as 128 entities/institutions/towns/municipalities/G.Ps', etc. , which is apart 15 from the fact that the transportation of water from Darna Project, is by way of open canals, which in turn results in severe loss due to absorption and theft.
18. As there is huge foating population at Shirdi town due to 20 reason of visiting pilgrims at the Sri Sai Temple, initially a proposal was mooted for the Shirdi Sansthan and Shirdi town for additional allocation of water, which was sought to be procured from the Nilwande Dam. The respondents No. 10 to 12 accordingly engaged the services of the M.J.P. for preparation of a Project Report to be 25 submitted for approval to the authorities. Accordingly the M.J.P. ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {24} C.A. 14845-2018 in PIL 133-2016.odt prepared the report styled as "Augmentation to Shirdi Sansthan, Shirdi Nagar Panchayat and Kopargaon City Combined Water Supply Scheme" - Nilwande Dam as source, detailing the various factors, features, data requirements and the need for augmentation, which 5 is placed on record at Exh. A-6/page 245. It is contended that the augmentation scheme was the brain child of the concerned Minister, who, however, has not been made a party-respondent to either the PIL or the application. Whatever it may be, the need for augmentation of the insisting water requirement was felt, as a result 10 of which, the project report was prepared and submitted to the MWRRA through the Chief Engineer, M.J.P., on 17/05/2018. By the Govt. Resolution dated 07/02/2018. The augmentation project was approved. Technical sanction was also granted. Thereafter considering all the aspects of the matter, vide order dated 15 26/11/2018, the allocation of water for drinking purposes, from Nilwande Dam for respondents No. 10 to 12 was approved (Exh.A-7/ page 282), on certain terms and conditions, one of them specifcally condition No. XII being that on the commencement of the water supply scheme, the earlier allocation and supply from Darna Project 20 would stand automatically terminated.
19. It is this order dated 26/11/2018 which is the bone of contention. The applicants who claim to represent the interest of residents of 182 villages in the benefcial zone of Nilwande dam, 25 have opposed the allocation to the respondents No. 10 to 12 on ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {25} C.A. 14845-2018 in PIL 133-2016.odt various grounds, the basic two grounds being that of deprivation of the villagers in the benefcial/command zone of the Nilwande dam of the entitlement of water and the second being non-entitlement of the respondents No. 10 to 12, on account of they not falling within 5 the benefcial command zone of the Nilwande Dam. That apart, the further ground is that the respondents No. 10 to 12 have already sufcient allocation from Darna river and have been under utilizing the allocation, which indicates that the allocation already granted to them is sufcient for their needs. It is in this background that the 10 arguments advanced by respective learned Counsel for the parties have to be considered.
20. We have given our anxious consideration to the respective arguments of the learned respective Counsel for the 15 parties, perused the record including the various documents referred to by the respective Counsel and have consciously considered the provisions of the statutes as brought to our notice.
21. The basic question which arises is the scope of judicial 20 review in such a case. The entire question of reservation/allocation of water, change/ transfer of reservation/allocation from one source to another, depends upon various factors, policies, norms, as enumerated in the Water Policy for the State, the provisions of the MWRRA Act, 2005, the Rules framed thereunder, the various 25 notifcations/Govt. Resolutions, as issued in this regard from time to ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {26} C.A. 14845-2018 in PIL 133-2016.odt time and the technical feasibility as examined and determined by the persons competent to do so.
22. In the instant matter, it is an admitted position that 5 though the Nilwande Dam having capacity of 181.45 MCM, has been completed about 20 years back, the same has been lying unused, for the reason that the work of the right and left bank canals was not undertaken for decades together, either due to absence of funds or negligence on the part of the State, resulting in huge escalation of 10 costs. It is reported that initial costing of the entire project, as approved in the year 1970, was Rs. 7.93 crores, which as on date as per the fourth administrative approval dated 21/06/2017 has gone upto Rs. 2368.95 crores. The upto date expenditure of the project is Rs. 1037.42 crores, the balance cost is stated to be Rs. 1332.53 15 crores. A period of nearly 48 years is already elapsed since the inception of the project, and the main canal system through which water was to be transported, is not yet completed.
23. As pointed out above, the Maharashtra Water Resources 20 Regulatory Authority Act, 2005 was enacted for the purpose of regulating the water resources. The entitlement of a particular area/ town/sector, either for drinking/industrial or agricultural use, has to be determined by the Authority, as empowered to do so, under the provisions of the MWRRA Act, 2005, based upon various 25 considerations as enumerated therein, having due regard to the ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {27} C.A. 14845-2018 in PIL 133-2016.odt National as well as the State Water Policy.
24. Under the National Water Policy, 2012, it is enumerated that water needs to be managed as a common pool community 5 resource held by the State, under the Public Trust Doctrine, to achieve food security, support livelihood and ensure equitable and sustainable development for all. Under the Maharashtra State Water Policy, water is considered to be a prime natural resource of vital importance to all forms of life and an integrated multi-sectoral and 10 river basin approach needs to be adopted taking river basin/sub-
basin as a unit. Thus, both under the National as well as the State Water Policy, water is considered to be a prime natural resource and is subjected to the public trust doctrine. This being the position, no person/institution/entity can claim an individual right over water. 15 Water being a natural resource, has to be controlled and managed, which is the purpose of enacting MWRRA Act, 2005.
25. The Darna Dam has become old having been constructed in earth in 1912, whose canal network is also open, 20 resulting in loss of water during transportation. The Darna Dam is overloaded in as much as out of the total capacity of 219.82 MCM, what is permissible for drinking use is 28.30 MCM, however, actual use is 45.42 MCM. As many as 128 entities/villages/towns are being provided water from the Darna Project.
25
26. As against which, Nilwande Dam already stands and ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {28} C.A. 14845-2018 in PIL 133-2016.odt completed around 25 years back, however, due to non-completion of its canal network, no water distribution/supply is taking place from Nilwande Dam and the entire water storage capacity is lying unused/ un-utilised, since the last 25 years. Due to delay, the cost of 5 construction of the canal network has spiraled and has reached to Rs. 2469.14 crores as of 2015, as per the applicants, for which the State professes not to have funds.
27. Though a loan of Rs. 500 crores was agreed to be 10 provided by Shirdi Sansthan, which was to be used for construction of the canals, the same has been stalled by orders of the Court in a public interest litigation.
28. Due to paucity of funds, the canal work is, as on date, 15 at a very preliminary stage. Even the land acquisition to the extent of more than 100 acres is not as yet complete. The excavation of the canals in sections, where acquisition has been completed, is at a snail's pace, that too, by the Court intervention, and in certain sections, is yet to commence at all.
20
29. There is no certainty as to the period within which the canal network will be completed. Unless the canal network is completed, the water cannot be transported for any purposes, either to the 182 villages within the command area or to any other 25 place/town/village.
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{29} C.A. 14845-2018 in PIL 133-2016.odt
30. As per the National & State Water Policy and Notifcations as issued from time to time, the use of open canals for transportation of water, is being systematically converted to closed pipelines, so as to avoid loss due to evaporation, theft and seepage, 5 which entails additional costs.
31. Under the National & State Water Policy, 'water' is now considered to be a National Resource, and the public trust doctrine is, therefore, applicable to it and its use has to be controlled and 10 regulated as per the statutory provisions, as framed from time to time, in this case the MWRRA Act, 2005, and the Rules as made there-under. This has been so held by this Court in Marathwada Janata Vikas Parishad Vs. the State in P.I.L. No. 173/2013, as under :
15 "195. We have recorded findings on the various issues in this Judgment. In this paragraph, we are not reproducing all the conclusions and findings recorded by us. Some of the important conclusions can be summarized thus:
20 (i) The water flowing through the rivers and water stored in the reservoir/dams is the property of the State. The doctrine of Public Trust will apply and therefore, the State is the trustee thereof. Hence, the public at large is beneficiary 25 of the water. Therefore, no citizen or entity is entitled to claim any preferential right to get supply of water in a particular manner or of a ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {30} C.A. 14845-2018 in PIL 133-2016.odt particular quantity except in accordance with the provisions of law. In view of Clause (b) of Article 39 of the Constitution of India, it is an obligation of the State to equitably distribute the river water 5 and water stored in reservoirs/dams so as to sub-serve the common good."
The principles laid down by the Hon'ble Apex Court for sharing of an inter-State river, in the case of State of Karnataka Vs. State of 10 Tamilnadu, (2018) 4 SCC 1, can with beneft be utilized and applied for sharing of water inter-locality within a State too:
"409. The sharing of an inter-State river, as the professed norms of distribution suggest, has to 15 be with the spirit of harmonious disposition and equanimous dispensation. The norms or the factors suggested, understandably, can never be exhaustive and designed only a balanced framework of pragmatic measures to ensure 20 benefcial use of water resources in an inter-State river on need-based application thereof and reciprocal adjustments for common good. In the regime of a welfare State wedded to the guarantees enshrined in the National Charter, 25 any yardstick for distribution of any national asset like water would have to be essentially in furtherance thereof. The criteria identifed in the Rules and supplemented by the national policies in letter and spirit, though in quite detail, can 30 only be construed as illustrative and cannot be ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {31} C.A. 14845-2018 in PIL 133-2016.odt perceived as a straitjacket formula or put in a compartment of mathematical exactitude to exclude any other consideration or exigency to efect a desirable apportionment of water of an 5 inter-State river depending on the prevalent eventualities.
410. Having regard to the geographic, hydrographic, hydrological, hydrogeological, climatic, ecological and other fuvial phenomena 10 attendant on time, the spectrum of priorities and the factors associated therewith are bound to vary. Be it clearly stated that while no precise formula can be adopted, there has to be a sincere and pragmatic endeavour to have a rational 15 amalgam of globally accepted norms and the local necessities founded on the doctrine of fairness and equity. The factors already enumerated, needless to say, may inter se demand precedence of one over the other 20 depending on the ground realities, the ultimate test being to ensure that the allocations on the basis thereof in favour of one basin State ought not to be substantially detrimental to the co-basin States. The order of precedence in the areas of 25 necessity, as set out in the National Policy, is not incompatible with the acknowledged determinants for ascertaining the reasonable and equitable share of an inter-State river. Nevertheless, the weightage of one item of need 30 would depend in a given situation on the degree and priority thereof thereby necessitating grant of preference of one over the other in departure ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {32} C.A. 14845-2018 in PIL 133-2016.odt of the sequence set out in the Policy. This again is to underline the attribute of variability in the approach of application of the otherwise identifed criteria, the ultimate goal being 5 equitable apportionment of the resources. This concept gains more signifcance where the resource is scarce and inadequate qua the demand thereof. It is warrantable as the dispute involves the inhabitants of one State with the 10 inhabitants of another State. Such involvement by statutory command engulfs the principle of obtaining situational adjustment having due regard to priority."
15 32. No single/group of villages/towns/areas can claim supply of water as a matter of right or entitlement, be it situated within the command/benefcial area or otherwise.
33. The allocation/reservation of water cannot be static but 20 has to be reviewed and revised every three years, depending upon the factors enumerated in the MWRRA Act, 2005, Rules framed thereunder, the National/State Water Policy and Notifcations/Govt. Resolutions issued by the Centre/State from time to time. 25 34. Any allocation/reservation made can always be changed/transferred by the Statutory Authorities, based upon consideration of parameters, as laid down.
35. The River Basin Agency/Authority under the provisions ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {33} C.A. 14845-2018 in PIL 133-2016.odt of the MWRRA Act, 2005, is statutorily bound to consider the need of all villages/towns, including those situated within the command area of the dam, while deciding the entitlements and allocation/ reservation of water.
5
36. The scope of judicial review in such cases, as rightly contended by the learned Counsels for the respondents is extremely narrow. Reliance has rightly been placed on Kachchh Jal Sankat Nivaran Samiti Vs. State of Gujarat, 2013 (12) SCC 226 , of 10 which the relevant portion in para 12 reads, thus:
"13. Candidly speaking, we do not have the expertise to lay down the policy for distribution of water within the State. It involves collection of various data which is variable and many a times 15 policy formulated will have political overtones. It may require a political decision with which the Court has no concern so long it is within the constitutional limits. Even if we assume that this Court has the expertise, it will not encroach upon 20 the feld earmarked for the executive. If the policy of the Government, in the opinion of the sovereign, is unreasonable, the remedy is to disapprove the same during election. In respect of policy, the Court has very limited jurisdiction. A 25 dispute, in our opinion, shall not be appropriate for adjudication by this Court when it involves multiple variable and interlocking factors, decision on each of which has bearing on others.
15. ---The allocation of water is a matter of ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {34} C.A. 14845-2018 in PIL 133-2016.odt policy and how much water is to be released from the canal and for that matter a particular area or how much water is to be left with other regions, in our opinion, are matters which require delicate 5 balancing and consideration of complex social and economic consideration. In our view, there being no judicially manageable standards, it shall be appropriate to leave it to be decided by the experts of the irrigation management system and 10 water resources management.
16. --As regards the complaint of the appellants that while making distribution, the State Government did not take into account the policy 15 underlying Article 39(b) of the Constitution, we must observe that the distribution of material resources is to be effected in the manner to subserve the "common good" and this expression is not to be confined for Kutch District only but to 20 the other regions of the State also."
37. The following paragraph in Narmada Bachao Andolan Vs. Union of India, (2000) 10 SCC 664 can be benefcially relied upon in the present matter of the scope and ambit of judicial 25 exercise in a Public Interest Litigation:
"230. Public interest litigation (PIL) was an innovation essentially to safeguard and protect the human rights of those people who were unable to protect themselves. With the passage 30 of time PIL jurisdiction has been ballooning so as ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {35} C.A. 14845-2018 in PIL 133-2016.odt to encompass within its ambit subjects such as probity in public life, granting of largesse in the form of licences, protecting environment and the like. But the balloon should not be infated so 5 much that it bursts. Public interest litigation should not be allowed to degenerate to becoming publicity interest litigation or private inquisitiveness litigation.
231. While exercising jurisdiction in PIL cases the 10 court has not forsaken its duty and role as a court of law dispensing justice in accordance with law. It is only where there has been a failure on the part of any authority in acting according to law or in non-action or acting in violation of the law that 15 the court has stepped in. No directions are issued which are in confict with any legal provisions. Directions have, in appropriate cases, been given where the law is silent and inaction would result in violation of the fundamental rights or other 20 legal provisions.
232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not transgress its jurisdiction. There is, in our 25 constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has sought to impinge upon the court's jurisdiction.
233. At the same time, in exercise of its 30 enormous power the court should not be called upon to or undertake governmental duties or functions. The courts cannot run the Government ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {36} C.A. 14845-2018 in PIL 133-2016.odt nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary 5 under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must, therefore, act within their judicially permissible limitations to uphold the rule of law 10 and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a 15 particular manner the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words the court itself is not above the law.
234. In respect of public projects and policies 20 which are initiated by the Government the courts should not become an approval authority.
Normally such decisions are taken by the Government after due care and consideration. In a democracy welfare of the people at large, and 25 not merely of a small section of the society, has to be the concern of a responsible Government. If a considered policy decision has been taken, which is not in confict with any law or is not mala fde, it will not be in public interest to require the 30 court to go into and investigate those areas which are the function of the executive. For any project which is approved after due deliberation the court ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {37} C.A. 14845-2018 in PIL 133-2016.odt should refrain from being asked to review the decision just because a petitioner in fling a PIL alleges that such a decision should not have been taken because an opposite view against the 5 undertaking of the project, which view may have been considered by the Government, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision it is then not the function of the 10 court to go into the matter afresh and, in a way, sit in appeal over such a policy decision."
38. As of date, due to non-completion of the canal network of Nilwande dam, the apprehension of the 182 villages within the 15 command area that no water will be provided to them, as and when the canal network is completed, is totally illusionary, in as much as they have a right to apply for and seek allocation/reservation, upon completion of the canal network as and when the same happens and in case of non-consideration of the same, have a right to challenge 20 any adverse direction/order before the appropriate forum. However, as on date, any claim for entitlement/allocation/reservation, in absence of a distribution network in place, is without any basis and substance whatsoever. The applicants/petitioners want a paper allocation/reservation/entitlement to become efective as and when 25 the distribution network would be put in place, which may take years, nay decades, considering the present state and stage of the work and the position of funds presently available and the absence ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {38} C.A. 14845-2018 in PIL 133-2016.odt of willingness of the State, to pour more funds. Grant of any reservation/allocation/entitlement to the 182 villages in the command area, now without the distribution network in place, would clearly amount to putting the cart before the horse and 5 thereby creating an incongruous situation, which is impermissible not only on facts availing in the present matter, but also in law. The plea of linear distances between the Darna Dam and locations of respondents No. 10 to 12 being lesser than the distance between Nilwande Dam and the locations of the respondents No. 10 to 12, 10 and the consequent lesser expenses for construction of the pipeline to Darna Dam, is without any merits for the reason already recorded that Darna Dam is already overloaded.
39. The present potential available at Nilwande dam cannot 15 be permitted to go waste, under a mere apprehension by the applicants/petitioners that the 182 villages within the command area would not receive any water, as and when the canal network is completed, whose completion period itself is uncertain. This is more so, when the allocation/reservation made as on date in favour of 20 respondents No. 10 to 12 is capable of being changed/reviewed/ revised by the Authority under the Act of 2005, that too, when the respondent No. 10, at its own cost, without any expense to the public exchequer and without claiming any equity, is ready to construct a pipeline from Shirdi to Nilwande dam for transportation 25 of the water. The apprehension of the applicants that the ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {39} C.A. 14845-2018 in PIL 133-2016.odt respondents No. 10 to 12 would be deriving double beneft of supply from Darna Dam as well as from Nilwande Dam, is as misconceived as it can be for the simple reason that clause XII of the impugned order, specifcally directs the automatic cancellation of the 5 allocation/reservation from the Darna Dam, upon commencement of supply from the Nilwande Dam.
40. The further apprehension of the applicants/petitioners that since as on date, there is supply of drinking water from the 10 Nilwande Dam to the villages of Sangamner & Akole, in case the impugned order is permitted to stand, there would be no scope for allocation to the 182 villages in the command area, is also unsustainable for the reason that, the allocation to the respondents No. 10 to 12 is not static but can be changed/reviewed/revised by 15 the Statutory Authority as and when factors indicating the revision/review are placed before it. This is clearly supported from the corrigendum dated 07/02/2019, whereby the earlier allocation to the respondents No. 10 to 12 under the impugned order was 16.12 MCM (nyÄeh) has been reduced to 12.24 (nyÄeh). 20
41. In fact, the applicants or for that matter the 182 villages in the command area of Nilwande Dam as on date, have neither any cause of action or locus standi to challenge the impugned order for the reason that completion of water distribution network of the 25 left/right bank canal, in the near-future, does not appear to be ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {40} C.A. 14845-2018 in PIL 133-2016.odt possible, neither do these 182 villages profess to possess the wherewithal or the funds to ensure its completion at any proximate period, as against which the respondent No. 10 has already placed on record its willingness to expend for laying the closed pipeline for 5 transportation of water from Nilwande Dam to the places at which they are situate. Needless to mention that, apart from the expenses for laying the pipeline, the respondents No. 10 to 12 will also have to incur all expenses, as are required for preparing and installing the infrastructure and machinery necessary for lifting and pumping the 10 water at the Nilwande Dam, as without such infrastructure & machinery, the water cannot be transported.
42. The reservation/allocation to the respondents No. 10 to 12 by the impugned order, was challenged by way of a petition fled 15 by Gram Panchayat, Pimpri Nirmal, Taluka Rahata Dist.
Ahemednagar through one Shri Dnyandev Ghorpade, ex-Sarpanch, which was registered as case No. 7/2018, before the Maharashtra Water Resources Regulatory Authority. The Authority after considering the entire position in light of the provisions of MWRRA 20 Act, 2005 and contentions which were similar to those which are being raised in the present civil application, vide order No. 14/2018 dated 15/10/2018, disposed of the petition by giving the following directions:
" 29. FINAL ORDER/DIRECTIONS:
25 Having heard the parties involved in the ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {41} C.A. 14845-2018 in PIL 133-2016.odt litigation, perusing documents as well as data on record, submissions made by the parties and having answered the issues as above, this Authority hereby directs as under: 5 i) In light of the observations made in Paragraph 22, 24 and 26 and fndings in Para 28 above, the State Government is competent to sanction drinking water entitlements within Sectoral Allocation to any water use entity even 10 outside command area of the project . Command area cannot be the limiting boundary for supplying water for drinking purpose.
ii) The State Government is also competent to swap the drinking water reservations from one 15 project to another project if the drinking water use on particular project is in excess.
Iii) Thus, the State Government is competent to take decision to grant water reservation to Shirdi Sansthan, Shirdi nagarpanchayat including 20 or excluding Kopargaon Nagarpalika after giving due consideration to:
a) Likely total drinking water demand including the future demand of the villages in the command area of Nilwande project and 25 consequential reduction in the command area of the Nilwande project.
b) The facts that Nilwande project is planned for 50% dependable yield.
If the State Government decides to grant drinking 30 water reservation to this scheme, it shall be given strictly following the provisions in the Criteria dated September 22, 2017 determined by this ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {42} C.A. 14845-2018 in PIL 133-2016.odt Authority under the provisions of Section 11(a) and 11(q) of the MWRRA Act, 2005.
Further, as provided in clause 6.2(i) & (ii) of the Criteria determined by this Authority on 5 September 22, 2017, the conditions shall e imposed on the water use entity to lift the water by closed pipeline from the source and to construct concurrently sewage treatment plant of adequate capacity to treat entire sewage that he 10 will be generated, reuse the treated water to extent possible for non-potable demands and make available the remaining water for agriculture use/industrial use.
c) The water user entity shall be made aware 15 in the letter of reservations that this reservation is only the letter of support for investment to be made on water supply scheme. Actual quantity of water that will be supplied shall be governed by the entitlements granted by the River Basin 20 Agencies based on the prevailing population and reasonable use per capita norm determined by this Authority from time to time and the yearly allocation declared by the Prescribed Authority based on reservoir contents of the year.
25 iv) Water Resources Department being Nodal Department for planning and management of the water resources in the State, Maharashtra Jeevan Pradhikaran or Zilla Parishad or any Urban Local Body must not fnalise the source of water for 30 their drinking water supply scheme without prior consultation with WRD and Draft Project Reports of any water supply schemes must be fnalised ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {43} C.A. 14845-2018 in PIL 133-2016.odt only after obtaining the letter of support/water reservations from the Water Resources Department. The state Government shall issue detailed directions/guidelines in this regard to all 5 concerned.
The petition is accordingly disposed.
In the facts & circumstances, there shall not be any direction as to the costs.
Delivered on October 15, 2018."
10This being the situation, the grievance of the applicants in our opinion, is adequately addressed to and taken care of in the order No. 14/2018 dated 15/10/2018 passed by the MWRRA and no further directions are warranted.
15
43. It is further material to note that a plea was faintly raised that the criteria for water use norms, as fxed by the Authority vide order dated 22/09/2017, which was 70 (lpcd) for 'C' class Municipal Council has been unauthorisedly permitted to be increased to 135 20 (lpcd), however, in this regard it is pertinent to note that in a suo motu petition registered as Case No. 13/2018, the issue of relaxation was taken up by the MWRRA and vide order No. 15/2018 dated 17/10/2018, directions have been passed fxing the norms of water for the foating population, which directions are as under:
25 "25. FINAL ORDER/DIRECTIONS:
Having heard the parties involved in the litigation, perusing documents as well as data on record, submissions made by the parties and ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {44} C.A. 14845-2018 in PIL 133-2016.odt having answered the issues as above, this Authority hereby directs as under:
a) The norms for the foating population water shall be as under:
5 i) Bating facilities provide : 45 lpcd
ii) Bathing facilities not provide : 25 lpcd Note 1: the foating population shall be certifed by Chief Ofcer/Deputy Commissioner.
Note 2: Where split up of foating population for 10 which bathing facilities are provided and foating population for which bathing facilities not provided is not available, average norm i.e. 35 lpcd shall be adopted.
b) As the Shirdi Sansthan and Shirdi 15 Nagarpanchayat has both piped water
distribution system, sewage system and 16 MLD sewage treatment plant, the supply norm for Shirdi Sansthan and Shirdi Nagarpanchayat are hereby relaxed to 135 lpcd, subjected to 20 condition that they will treat entire sewage they generate, reuse the treated water to maximum extent and make available balance treated water for irrigation. Supply norms for Kopargaon Nagarpalika shala be as per the Criteria 25 determined by this Authority on September 22, 2017.
c) The planning of proposed combined water supply scheme of Shirdi Devasthan, Shirdi Nagarpanchayat and Kopargaon Nagarpalika may 30 be prepared and fnalized considering the norms determined and fxed for foating population as well as the norms already determined for fxed ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {45} C.A. 14845-2018 in PIL 133-2016.odt population and considering the futuristic needs of 30 years.
d) The River Basin Agency and its prescribed Authorities of Water Resources Department while 5 determining the reservation/entitlement shall consider the fxed as well as the foating population and strictly follow the norms determined and fxed by this Authority vide its Criteria Order dated September 22, 2017, read 10 with the present Order as far as the fxation of norms for the foating population.
e) In light of the norms now fxed for foating population category, the Secretariat of this Authority is further directed to issue corrigendum/ 15 addendum in the said Criteria Order dated September 22, 2017 for the category of said foating population so that all concerned to take the same into the account.
The petition is accordingly disposed 20 In the facts & circumstances, there shall not be any direction as to the costs.
Delivered on October 17, 2018."
This order dated 17/10/2018 passed by the MWRRA has not been 25 challenged by the applicants/petitioners in the present civil application and, as such, in absence of challenge thereto, any grievance raised in this regard is without any merits whatsoever. However, the order itself demonstrates that any order/direction, passed by the Authority under the MWRRA Act, 2005, it is not an 30 absolute one but is subject to various conditions as enumerated ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {46} C.A. 14845-2018 in PIL 133-2016.odt therein, which in our opinion, does not give any ground for any grievance to the applicants. In fact, the suo motu cognizance, further demonstrates that the Authority is alive to the issues in the region regarding allocation and distribution of water to various 5 entities.
44. The impugned order, thus, clearly appears to have been passed after due consideration of all the factors and by exercising the powers, as vested in the Authority. There is no 10 warrant to the allegations of malafdes and political patronage made on behalf of the applicants, as a mere speedy decision of the proposal, maybe at the behest of the Minister, does not deter from the situation that the Authority has considered the project report, the data as contained therein, in juxtaposition with the data 15 available with it and has passed the order, which is within the parameters of the law.
45. For the reasons, as stated above, we do not see any cause to interfere with the impugned order dated 26/11/2018 and 20 the challenge to the same, thus, stands rejected.
46. In so far as the relief as is claimed in prayer clause (C) of this civil application is concerned, it is always open for these 182 villages to approach the Authorities concerned in respect of any 25 reservation/allocation/entitlements as made by the MWRRA and request for a change/review/revision or modifcation in them, for ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 ::: {47} C.A. 14845-2018 in PIL 133-2016.odt reasons as available then, as and when the distribution network for distribution of water from the Nilwande Dam is complete or is nearing completion.
5 47. The civil application is, thus, rejected.
48. In view of the above, we permit the respondents No. 10 to 12 to go ahead with the work of Phase II of laying the pipeline from Nilwande Dam to Shirdi town (including Kopargaon), so that the 10 allocation of water made from Nilwande Dam, to the respondents No. 10 to 12, as of date, can be properly utilised. Needless to say, that it would be open to the Authorities under the MWRRA Act, 2005, to review or modify the order dated 26/11/2018, as and when the need for being so, is brought to its notice and it is satisfed that any 15 modifcation or review is called for.
49. In the circumstances, there shall be no order as to costs.
20 ( AVINASH G. GHAROTE ) ( PRASANNA B. VARALE )
JUDGE JUDGE
....48
25
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C.A. 14845-2018 in PIL 133-2016.odt
At this stage, Mr. Kale, learned Counsel for the applicants, prays that the order of rejection of the civil application be stayed for a period of two months. However, considering that 5 the public interest is involved, we are not inclined to do so. The request is rejected.
10 15 ( AVINASH G. GHAROTE ) ( PRASANNA B. VARALE ) JUDGE JUDGE Madkar ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 03:09:54 :::