Rajasthan High Court - Jaipur
Ghanshyam Singh And Ors. Etc. vs State Of Rajasthan And Ors. on 25 July, 1994
Equivalent citations: AIR1994RAJ285, 1995(1)WLC580, 1994(2)WLN61
Author: P.K. Palli
Bench: P.K. Palli
ORDER P.K. Palli, J.
1. These two connected writ petitions are between same parties and relate to the same controversy and thus, these are taken up and are being disposed of by this common order.
2. For an agriculturist, on earth, there is nothing more dear and precious than his land and the water reaching his fields. The situation in the State of Rajasthan in this respect is more precarious than several other parts of the country where water is available in plenty and irrigation facilities with up to date latest scientific technology have reached all time high record. Struggle between have's and have nots has continued over the centuries and those having less or nothing at all cry in their own right and those who have even more than what is needed do not desire to part with it even if it goes waste and is of no use to them.
3. It is this controversy that is involved in the present case. S. B. Civil Writ Petition No. 2245/92 has been filed by Ghanshyam Singh and others, wherein it is said that a dam was constructed so that the water of the river be collected and may be used for the purposes of irrigation and drinking and the dam was raised to a height of 42 ft. and the flow height was kept at 29 ft. After the completion of the dam in the year 1969, it is started irrigating the fields for the purpose it was raised. It is said in this petition that there is no other source of irrigation except this dam, which is popularly known as Raipur Deepa was Luni Dam. Having read a newspaper report in Rajasthan Patrika, the petitioners felt agitated on knowing that the over-flow height of 29 ft. is being reduced by 3 ft. It is stated that by reducing this height the storage capacity shall be proportionately reduced in the dam and the lands under irrigation at present shall be deprived adequate water. It is further said that the people of the area, in case the level is reduced, shall stand deprived of the desired water to their fields. Annex. I is the newspaper report which has been placed on record ana is under challenge.
4. At the motion stage this Court vide order dated 24th April, 1992 ordered the respondents not to make any change or to demolish any structure of the existing dam, which order on 4th November, 1992 was modified in the following terms:
"With regard to the interim stay order passed on 24-4-92, it is stated at the Bar that out of 3 gates to be fixed up, only one gate has already been fixed up. The respondents are restrained from fixing up any further gates in the dam as proposed by Annexure R/2 (page 44) dated 13-1-92 passed by the Secretary to the Government in the Irrigation Department.
The matter may now be listed in due course."
5. In the connected writ petition No. 5551/92,, which has been filed by Bhartiya Kishan Sangh Unit, it is stated that on 7th October, 1992, an order Ex. 1 was passed by the Executive Engineer (respondent No. 2), where some changes have been desired in the dam for the purposes of proper irrigation to the uncommand area and the petitioners being aggrieved against this decision have filed the present petition. The petitioners say that on experience it has come to be noticed that the persons who had their wells and tube-wells in their fields have been put to severe loss and on account of the dam the water strength and level of their wells stand considerably reduced and further there was no water in the down stream of the river.
6. The reply of the respondents in both the petitions is the same; which would be referred at a latter stage. It is an admitted case that the Government has taken a decision after thorough inspection and reports from the engineers of the irrigation department that gate's be opened on the dam so that when the water is in full strength the same can flow to the river and the wells situated on both the sides of the river, their water level is increased. This decision has been placed as Annex. 2 on record of this petition.
7. After having come to know that Ghanshyam Singh and others have already filed a writ petition No. 2245 of 1992 referred to above the petitioners have filed this petition and Annex. 2 has been placed on record and the petitioners here in this writ petition have stated that since true and correct facts have not been placed before the Court in the earlier petition, therefore, this petition is being filed. When this writ petition came up at the stage of motion hearing this Court ordered on 29-10-1992 that :
"no further water be released from the dam till 3-11-1992."
This order was later on modified vide order dated 4-11-1992, which reads as follows :--
"Heard learned counsel for the parties.
In view of the facts and circumstances of the case, the interim stay order passed on 22-10-92 is modified to the effect that respondents Nos. 1 to 3 will make available to the newly added respondents water for watering 4000 acres of command land held by the respondents and their likes. The water would be made available for three waterings of 80% of this land for Rayda crop and water would be made available for four waterings for wheat crops in the remaining 20% of the land. The excess water, if any, may be discharged from the newly fixed up gate so that it goes to the river bed for purposes of recharging the wells of riparian land holders. The release of water in favour of command land holders and in favour of riparian land holders may be made simultaneously.
The main writ petition may be fixed up after one month i.e. after filing reply on behalf of the newly added respondents."
The petitioners have tried to make out a case that water is being wasted and proper utilisation could be made if water is given to the river and when the process was at the final stage, this Court passed the stay order and the same has resulted in injustice and delay in the completion of the project. The further grievance of the petitioners in this case is that none of these persons who are affected and are going to be adversely affected were called in the meeting and on account of the stay order water could not be given to the river and now it has been decided that the water shall be given in the canal with effect from 1-11-1992 and if this is allowed to he carried out, the cultivators who arc having their fields in the nearby area of the river shall further suffer loss as the level of water in the dam will he considerably reduced and no water could go to the river which would further reduced the level of water in the wells. In short, their grievance is that they have not been heard in the matter and since the other party has already filed a writ petition in this Court, their view point may also be considered. So it was in this situation I thought it to dispose of both these petitions together after hearing the parties, through their counsel.
8. It has been argued by the petitioners in the writ petition No. 5551/92 that a meeting was convened by respondent No, 2 vide a notice dated 30th August, 1990 (Annex. 3) and a detailed report in the matter was asked for and communication in this respect was also made by the District Collector (Viz.) on 26th September, 1990, which is Annex. 4 and thereafter the matter was considered in the Committee. A representation was also submitted by the petitioner which is Annex. 5 on record and it was in these circumstances that the Government after taking into consideration the entire material decided that gates to be fixed at the dam to regulate water and the excess water be put in the river through the gates to be constructed at the highest level so that the residents of the area get proper water in their wells and respondent No. 2 thereafter convened a meeting on 7-10-92 where the petitioners were not called and the meeting was held up by certain persons who were adverse to the petitioners and an order was made by the respondent No, 2, which has been impugned as Annx. 1 in writ petition No. 2245/92. The petitioners herein in this petition have prayed for quashing the order dated 7-10-92 (Annx. 1) which purports to be a decision after deliberation passed by respondent No. 2.
9. In reply which is common in both [he petitions, the respondents have stated that a meeting was held of the Water Distribution Committee headed by the Executive Engineer and in the meeting it was decided that a canal of Raipur dam be opened for irrigation. It is said that it is nothing but the decision of the Distribution Committee and is not the order passed by respondent No. 2. The respondents have further averred that due to construction of the dam the villagers of down-stream along with the river and their water level in the wells is going down every day and arc being deprived of irrigation facilities. Therefore, it was thought that some quantity of water from dam be released in the river to recharge wells. It is further stated by the respondents that this arrangement has been decided tentatively on experimental basis. The full tank level of the tank shall be reduced by 3 ft. by providing gates and its effect shall be evaluated and considered in respect of ground level water of wells situated in down-stream villages and it can later be taken into consideration whether the full tank level shall be reduced by 3 ft. or at the present water capacity level.
10. The Secretary. Irrigation. Govt. of Rajasthan passed an order on 13-1-992 and according to this order, which is Annx. R/2, the effect of down-stream wells will be considered and if the ground water level of the wells does not improve, these gates would not be opened in future. It was in compliance with this order by the Secretary, Irrigation that the respondents installed one gate of 3 ft. x 3 ft. in the dam on 16-4-1992 and further installation of the other two gates were stopped because of the stay order granted by this Court. The learned counsel for the respondents have further forcefully argued that full details of the water have been placed by them in the form of annexures with the reply and that due to heavy rains the water almost double than the quantity has already been discharged and flown to the river in question and, therefore, there was no question of any loss to the cultivators of down-stream of Raipur dam. The details of the spilled water have also been placed on record. It is said that the dam is full at the level of 17 ft and it was in the interest of the public that these changes were being made. A canal from Raipur dam was proposed to be opened for irrigation purposes with effect from 1-11-92 to provide proper irrigation facility subject to the command area. The very purpose, it is argued, for constructing the gate was to release the water in the river, down-stream of dam in times of scarcity when no water flows in the river.
11. All what the respondents have stated in their reply and during the arguments by their counsel is that in case the level is reduced by 3 ft. and gates are fixed the same shall be evaluated and considered in respect of ground water level of wells so that it can be decided whether the full tank level shall be reduced by 3 ft. or the present water level capacity is to be maintained. It, therefore, comes to that the petitioners are totally misconceived and have been filed out of jealousy between the two groups. This court cannot go into the details of technicalities arrived at by the engineering department about the in-flow and out-flow of water in cubic ft. For that matter they have proposed a change for betterment and upkeep of ihe dam and it has been assured in the reply that the fears of the villagers having their lands in the command area are without any basis. No cut or reduction in supply of water to their fields shall be made. As noticed above it has been farther stated by the side of the respondents that in case system does not work, the gales shall not be opened. So the matter, therefore, has to be left to them and they shall keep a watch so that those getting water do not suffer and simultaneously the water level in the wells is not further reduced so that it affects the fields of other persons who have their own wells and in the event of the wells going dry or their level going down below they will also suffer as they shall have no irrigation facility.
12. The learned counsel appearing for the petitioners in Writ Petition No. 2245/92 vehemently contends that their lands being situated in command area, no change in the existing position be made so as to affect their rights and interest. In view of what the respondents have stated, these petitioners shall not be made to suffer and under any situation, their supply of water will be reduced. They shall keep on getting their water that is required for irrigating their fields and if under the process surplus water or the overflow water is allowed to go to down stream so that the river does not go dry and the water level of the wells of the surrounding areas also raises up, without injuring the rights of the others, the process should not be allowed to be stayed which is aimed at benefiting several other persons. The schemes which are made for the general welfare of the public should be looked into constantly by the authorities so that one is not benefited at the cost of the other. The interest of maximum number of persons should be kept in view to whom the benefit could be made to flow and at the same time the authorities shall not transgress their policy in curtailing the rights of one in order to create a right in the other. In the press note Annex. I it has been said that the decision is being taken on the demand of 20,000 agriculturists of the Tehsil Raipur in District Pali. This press note has been now given the shape of a decision by the Government vide Annex. 2 dated 13-1-1992.
13. In the result, the authorides are directed to carry out the policy of the Government and to put it into a practical shape at the earliest keeping in view the observations made above. The writ petitions are, thus, disposed of accordingly, with these observations.