Gujarat High Court
Govindbhai Dharmsihbhai Saghtiya vs State Of Gujarat & 4....Opponent(S) on 28 August, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, J.B.Pardiwala
C/WPPIL/342/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 342 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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GOVINDBHAI DHARMSIHBHAI SAGHTIYA....Applicant(s)
Versus
STATE OF GUJARAT & 4....Opponent(s)
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Appearance:
MR MASOOM K SHAH, ADVOCATE for the Applicant(s) No. 1
UTKARSH SHARMA, AGP for the Opponent(s) No. 1 - 5
MR HS MUNSHAW, ADVOCATE for the Opponent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/08/2014
Page 1 of 5
C/WPPIL/342/2013 JUDGMENT
JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioner, claiming to be espousing the interest of the residents of Village Nana Bhadla, has filed this petition with a prayer for a direction to the respondents to remove unauthorized construction in the path of a canal constructed under the scheme called Nana Bhadla Sinchai Yojna, in village Krishna Nagar and Nana Bhadla, Botad, Tal. Botad, Dist. Bhavnagar. Case of the petitioner is that such canal is unauthorizedly covered by neighbouring agriculturist. In some case, construction has also been carried out and, in fact, even a Government School obstructing the canal has come up.
2. The Executive Engineer, Irrigation Department of Botad, District. Bhavnagar, has filed an affidavit dated 04.03.2014. In such affidavit, he has stated that the canal was constructed in the year 1980 but, could be operated only for a few years when the monsoon had good rains. In most of the years, there was zero storage in the canal. It is stated that from the date of construction, till now, the canal was rarely used for storage of water for the purpose of irrigation. With the consent of the villagers whose lands were adjoining to the canal, the proposal has been considered for conversion of the canal into a percolation tank. A resolution to that effect is also passed by the District Panchayat on 21.02.2014. It is stated that some of the villagers have also filled up their canal passing through their lands and, where it Page 2 of 5 C/WPPIL/342/2013 JUDGMENT was passing through the Government land a Government school is also being constructed. The deponent further stated that once the Government approves the conversion to percolation tank, the question of water supply to the villager would be resolved and even otherwise, there are various check dams besides Sukh Bhadar dam providing water for irrigation to the agriculturist. It is stated that, if the proposal of conversion of the canal is accepted, there would be no question of reviving the canal.
3. An affidavit-in-rejoinder has been filed by the petitioner in which, above noted important averments contained in the reply have not been seriously disputed.
4. In a further affidavit dated 22.07.2014, the Executive Engineer of Irrigation Division has clarified that the percolation tank helps in recharging the aquifers. In simple terms, they help recharging the subsoil water level.
5. This is somewhat curious case where a canal which was constructed in the year 1980 had completely gone to disuse simply because of non-availability of any water to be supplied to the agriculturist for irrigation through such canal. The data shown by the respondents alongwith the affidavit-in-reply dated 04.03.2014 establishes this fact. Right from the year 1980 till the year 2012 till which time the figures are available, the area irrigated through this canal had Page 3 of 5 C/WPPIL/342/2013 JUDGMENT remained nil. During few years presumably on account of good rain fall, there has been some storage of water in such canal, however, the principal purpose for which the canal may have been constructed viz. that for irrigation of agriculture fields has completely failed. In the meantime, the canal appears to have been abandoned by the State Authorities and the land, over a period has been reclaimed by the villagers and, in one case, the Government itself.
6. Learned counsel for the petitioner, however, submitted that whatever be the ground realities, the encroachment must be removed. He drew our attention to the provisions contained in Gujarat Irrigation and Drainage Act, 2013. As a canal be a live canal supplying water for irrigation or any other purpose would certainly have considered the request for prompt and decisive action for removal of an obstruction and urging the authority to exercise the powers under Section 13 of the Said Act.
7. However, in the present case, the ground realities cannot be lost sight of the fact that the canal which has been out of use almost since inception is also on the proposal for conversion for percolation tank. If this proposal is accepted, the authorities will have to retrace the canal and use for storage of water which would percolate in the ground and improve the ground water tables. At this stage, therefore, we are do not propose to give blanket directions to remove Page 4 of 5 C/WPPIL/342/2013 JUDGMENT all of occupants including that of a Government School from the area of the said canal. When we expect the authorities to take final decision on the fate of the canal, if it is to be converted into the percolation tank, the decision may be taken expeditiously. Once such a decision is taken, the authority shall, thereafter, have to proceed in accordance with law for implementing such a decision and reclaiming the canal land. At this stage, in our opinion, this direction, in public interest litigation, should meet with the end of justice.
(AKIL KURESHI, J.) (J.B.PARDIWALA, J.) Jyoti Page 5 of 5