Gujarat High Court
Dayalji vs State on 19 April, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
Print
SCA/299/2010 33/ 33 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 299 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ? YES
2
To
be referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?NO
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? NO
5
Whether
it is to be circulated to the civil judge?NO
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DAYALJI
BECHARBHAI BHIMANI & ORS
Versus
STATE
OF GUJARAT & ORS
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Appearance :
MR
P.C.KAVINA WITH SK PATEL for Petitioners
MR NIKUNT RAVAL WITH
MR.RASHESH RINDANI, AGP for Resp. Nos 1-2, 4,
MR SATYAM Y CHHAYA
for Respondent No.3
MR SP MAJMUDAR with PP MAJMUDAR for Respondent
Nos. 5 - 6
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 19/04/2010
CAV
JUDGMENT
1 The petitioners have filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the Order dated 30.12.2009, passed by the respondent No.2 i.e. Superintending Engineer, Rajkot Irrigation Circle, Rajkot, and to implement the Order dated 01.12.2009, passed by the State Government. The petitioners have further prayed to award appropriate compensation to the petitioners and other farmers to compensate the damage caused to them by the arbitrary and mala fide action of the concerned officers of the State Government, more particularly the respondent No.3, and those who have supported the respondent No.3 in this illegal and arbitrary action. The petitioners have further prayed for a direction to the Government to hold appropriate inquiry against the erring officers, who are wasting the water, which is the precious national property at the cost of the Government revenue and thereby to recover the loss of revenue from such erring officers. By virtue of the Amendment granted by this Court on 29.01.2010, the petitioners have also prayed for quashing and setting aside the Order dated 27.01.2010, passed by the Joint Secretary, Narmada Water Resources and Water Supply and Kalpasar Department, Gandhinagar.
2 This Court has issued Notice on 18.01.2010. On 22.01.2010 the first Draft Amendment was granted, thereby the respondent Nos. 5 and 6 are joined as parties and Notice was issued to the newly joined parties. On 28.01.2010, the order was passed by the Court directing the learned Assistant Government Pleaders appearing for the State Government to take necessary steps as to how the Order dated 01.12.2009 passed by the State Government can be implemented in the best manner. Thereafter on 01.02.2010, the petition was Admitted and a detailed order was passed whereby the execution, implementation and operation of the order dated 27.01.2010 passed by the respondent
- Under Secretary, Narmada Water Resources and Water Supply, Kalpasar Department, was stayed. The respondent No.3 was directed to release total 35 MCFT water from Und-I irrigation Project and the respondent No.3 was further directed to release 03 MCFT water from Und-I Irrigation Project starting from 03.02.2010. The Court has made it very clear that the aforesaid directions were issued in view of the peculiar facts of the case and looking to the law and order situation as well as interest of the persons living in the downstream area since it would not be possible to release the aforesaid quantity of water i.e. 35 MCFT at a time. The respondent No.4 was further directed to provide sufficient police protection for such purpose with a view to see that there is no law and order problem and to ensure that the present order is implemented. The Court is informed that the above interim order was challenged by the aggrieved party before the Division Bench of this Court by way of Letters Patent Appeal and since this being an interim order, the Division Bench refused to interfere in the said order.
3 In the above background of the order, the present petition is taken up for the final hearing.
4 Heard Mr. P.C. Kavina, learned Senior Counsel, appearing with Mr. S.K. Patel for the petitioners, Mr. Nikunt Raval and Mr. Rashesh Rindani, learned Assistant Government Pleaders for the respondents - State Authorities and Mr. S.P. Majmudar, learned Advocate appearing for respondent Nos. 5 and 6 private parties.
4.1 It is the case of the petitioners that the petitioners and other farmers of village Dhrangda, Khambhalida, Tamachan of Taluka Jamnagar and village Jaliya, Khijadiya, Rojiya, Mansar, Hamapar and Soyal of Taluka Dhrol, are using the water of river Und since their forefathers and thereby they are maintaining their livelihood by doing agricultural activities using water of river Und. Because of construction of Und-I and Und-II Dams on the river, the water which the petitioners were using, came to be stopped in the river, and thereby a serious prejudice was caused to them. The affected farmers have to make various efforts in every season of crop for releasing of water in the river for their survival, from one office to other, and resultantly, for solution of yearly problem, Sarpanch of village Khambhalida and Dhrangda filed Special Civil Suit No.496 of 1993 in the Civil Court, Jamnagar, for declaration and permanent injunction, ventilating grievance in this regard, wherein the learned Civil Court by Order dated 11.12.2000 partly decreed the suit with some directions to the defendants - State of Gujarat and Collector, Jamnagar, to provide water to the plaintiff villages from the Und dam for irrigation purpose in accordance with law whenever there is surplus water in the dam. The petitioners and other farmers are getting water for irrigation on payment of necessary water charges as per the requirement every year, and thereby they are maintaining their livelihood.
4.2 It is also the case of the petitioners that in the current year, the petitioners and other farmers made representation for releasing the water by giving necessary application dated 18.11.2009 by one Mr. D.D. Bhimani the petitioner No.1 herein. On receipt of the application dated 18.11.2009, the office of the Deputy Executive Engineer, prepared the details of water levels, and the availability of quantity of water up to June 2010, submitted his proposal to the Office of the Executive Engineer, Jamnagar. The respondent No.3 has forwarded depletion statement for Und-1 dam stating in detail the gross storage capacity, dead storage and month wise corresponding gross storage along with recommendation of the office of the Executive Engineer, for passing order by the State Government dated 01.12.2009. The Office of the Executive Engineer, after considering all the relevant factors and the data of quantity of water, prepared a detailed report to the office of the Superintending Engineer, Circle Officer, Rajkot and the Superintending Engineer sent their proposal of recommendation to the Chief Engineer (Saurashtra) and Additional Secretary, Narmada Water Resources and Water Supply Department at Gandhinagar on 21.11.2009. The State Government on careful consideration of the report submitted by the Office of respondent Nos. 2 and 3 and also considering availability of water and future planning of water till June 2010, passed an order dated 01.12.2009 directing respondent No.2 to release 70 MCFT water from Und-1 Dam in the river Und on payment of water charges.
4.3 It is also the case of the petitioners that on permission being granted on 01.12.2009, the petitioners and other farmers have collectively deposited Rs. 1,42,660/- in the office of respondent No.3 on 03.12.2009. Since the permission of the State Government was granted on 01.12.2009 and the petitioners and other farmers have deposited the necessary payment on 03.12.2009, the farmers started sowing operations by planting seeds of wheat, jeera and accordingly the sowing operations came to be completed in about 750 acres of land by all the farmers, wherein the farmers have spent about more than Rs. 30 lacs for seeds, fertilizers and things. Despite deposit of payment on 03.12.2009, when the water was not released on 4th and 5th of December, the petitioners and other farmers met respondent No.3 on 05th of December, 2009, to inquire as to why the water has not been released though the payment was made on 03.12.2009. The respondent No.3 gave evasive reply and informed the petitioners and other farmers that because of the opposition by some persons, the water could not be released. The petitioners and other farmers met the Collector, Jamnagar, by giving an application dated 05.12.2009 in writing with a request to the Collector, Jamnagar, to instruct the Mamlatdar to visit the site and make report in this regard. The Collector, Jamnagar, immediately instructed the Mamlatdar, Dhrol to visit the site and to make report in this regard. On 06.12.2009, the Mamlatdar, Dhrol personally visited the site and made report dated 08.12.2009 to respondent No.3 to release the water making it clear that the persons who want to obstruct the flow in the river, have not taken any permission and thereby all these vadas, where some plantation is made, are absolutely illegal,. It was also made clear in his report to release the water by taking police protection. Despite the report being submitted by the Mamlatdar and instructions issued by the Collector, Jamnagar, when the water was not released even on 09.12.2009, the petitioners and other farmers again met the respondent No.3, who is also the Canal Officer, appointed under the Act, to discharge his duty and function in accordance with law as per the provisions of the Bombay Irrigation Act,1879 and Rules framed thereunder. He, however, was supporting the illegal act of the persons, who want to obstruct the flow of water and indirectly compelled the farmers to undergo corruption. The petitioners thereafter made representation to the Chief Minister, by sending application by fax on 10.12.2009 making grievance in this regard with a request to do the needful in the matter.
4.4 It is the case of the petitioners that there was a news item reported in a daily newspaper on 10.12.2009 which indicated that the water would be released on 10.12.2009 from 9.00 a.m. and, therefore, the necessary instructions and caution have been passed to all the villages in the river bed. Despite this public announcement to release the water on 10.12.2009, water was not released on that day and, therefore, the petitioners and other farmers again met the Collector, Jamnagar, on 11.12.2009 wherein the Collector assured the farmers that the water would be released from tomorrow. Despite this assurance, when the water was not released, the petitioners made an inquiry and on inquiry they found that the respondent No.3 instigated the farmers of Uparvas and the persons who have illegally occupied the riverbed and who wants to obstruct the flow of water, to strongly oppose the release of water, so that, the petitioners can be refused water on the ground of opposition by others and also on the ground of law and order problem.
4.5 The petitioners, therefore, filed a Special Civil Application No.13526 of 2009 before this Court which came to be disposed of on 23.12.2009 with a direction to the respondent No.2 to decide the matter within a period of one week. The Respondent No.2 by Order dated 30.12.2009 took the decision not to release the water on the ground that if the gates were opened and water was released in the riverbed, the standing crops in the riverbed would be washed away and the survival of about 250 persons would be in jeopardy. It is also mentioned in the order that the law and order situation would also be affected by releasing of water and, hence, only with a view to maintain the law and order situation and if the coming monsoon is delayed, in that case, there would be any shortage for the drinking water in the command areas. Therefore, the respondent No.2 has taken the decision not to release the water at present.
5. It is this order of the respondent No.2 which is under challenge in this present petition.
6 Mr. P.C. Kavina, learned Senior Counsel, appeared with Mr. S.K. Patel, for the petitioners, has submitted that the respondent No.3 i.e. Deputy Executive Engineer is the Canal Officer appointed under Section-4 of the Act for the purpose of discharge of his duty under the Act for proper distribution of water with a duty to prevent the wastage of water. In the present case, the petitioners are using the water for irrigation purpose in accordance with law which is being released in the river Und by the State Government on payment of necessary charges every year. In view of Section-3 of the Act, `Canal' includes river, stream, natural drainage channel and water course and, therefore, it is the duty of the Canal Officer to regulate, maintain and repair the canal as provided under Section-9 of the Act. It is also the duty of the Canal Officer under Section-14 to remove obstructions in the water flow. The Canal Officer is empowered to take appropriate actions under Section-64 of the Act, to take the person, obstructing the flow of water into custody without warrant and take forthwith before a Magistrate or to the nearest police station, to be dealt with according to law. The respondent No.3 is specifically entrusted with duty to clear the flow of water and to regulate supply of water under Section-8 of the Act by removing any hurdle or obstruction in the flow of water.
6.1 Mr. Kavina further submitted that the respondent No.3 has failed in discharge of his statutory duty and, on the contrary, malafide instigated some persons to obstruct the flow of water and, therefore, the respondent No.3 is responsible in this regard for not implementing the order of the State Government and thereby causing loss of revenue to the Government and the damage to the farmers, which have already incurred by them as the sowing operations have already been completed and seeds, fertilizers etc were utilized by them. The respondent No.3 has not implemented the order of the State Government for extraneous consideration on the ground of self created hurdles by instigating the farmers of Uparvas, whose lands are submerged in the Dam, who have been fully compensated by award, who are not concerned in any manner with the riverbed, who were not in picture at all up-till-now and, thereby, created a picture of law and order disturbance.
6.2 Mr. Kavina further submitted that passing of the impugned order and taking decision not to release the water on the ground that 250 persons would be affected, is factually incorrect, as in fact, there are only 5 to 7 families who have cultivated on the alleged vadas in the riverbed. He has further submitted that the water can be released in the river as per the order of the State Government by opening one gate without affecting alleged vadas. It is further submitted that the vada persons, in whose names, the entire issue is created by the respondent No.3 and others have no objection against release of water if their vadas are protected, as per their case in the impugned order. The objection by the farmers of Uparvas with regard to stock of water, has no relevance at all as the same has already been considered while passing order dated 01.12.2009 by the State Government. Even otherwise, as far as the second ground of cultivation of vadas by some persons in the riverbed is concerned, the same are illegal encroachment on the riverbed, even as per the case of the government. The water can be given to the petitioners even without affecting the vadas, as the riverbed is so wide, that the water is already flowing on one side of the river bed, and the vadas are situated on the other side of the river bed and, therefore, the water can be passed on the other side of the riverbed without affecting the vadas.
6.3 Mr. Kavina further submitted that on perusal of the photographs produced by the petitioners with the petition clearly establishes the gross negligence in discharge of statutory duty by the respondent No.3 and thereby the wastage of large quantity of water. It is further submitted that the photographs annexed with the petition clearly establish that a large quantity of water has already been wasted which have been diverted in the road side nalas, in the vokdas and at some places the water logging was there even on the village cart ways. As on today also, the water is continuously under wastage.
6.4 Mr. Kavina further submitted that the seeds used by the farmers for sowing operations in the first week of December have been spoiled. He further submitted that even if water is ordered to be released now, the crop can be taken by again putting another seeds. He has further submitted that the petitioners have made allegations against the respondent No.3 and others that the respondent No.3 and others are collecting installments and pocketing the same instead of depositing in the Government treasury under the blessings of concerned revenue authority. The new issue of the farmers of Uparvas has been created by the respondent No.3 and others, only because, the respondent No.3 has not been paid Rs. 20,000/- for release of water which he has demanded from one farmer Karansinh Jadeja, the petitioner No.2, as per his normal practice. An allegation was made that the respondent No.3 has become multi milliner during last 05 years by acquiring various properties in Rajkot City at the cost of government revenue.
6.5 Mr. Kavina further submitted that the State Government has passed an order dated 01.12.2009 for releasing 70 MCFT water on payment of Rs.1,42,660/- which comes to Rs.2038/- per MCFT as water charges. The total live storage of Und-I Dam is 2290 MCFT after leaving dead stock of 248 MCFT out of total gross storage of 2538 MCFT. at the rate of Rs. 2038/- for total live storage, the Government must get total revenue of Rs. 46,67,020/-. As per the information of the petitioners collected on the details supplied by the respondent No.3, the Government has received total Rs. 18,04,528/- from 24.11.2009 to 12.01.2010 from total irrigation under Und-I Dam and thereby there is a deficit revenue to the Government of Rs. 28,62,492/- as per rough calculation. The Respondent No.3 is in-charge of Und-I Dam and under the law, he is duty bound, responsible and accountable for the loss of revenue to the Government. He, therefore, submitted that appropriate order is required to be passed against respondent No.3.
6.6 Mr. Kavina further submitted that despite the orders dated on 30.12.2009 and 27.01.2010, this Court has passed an interim order directing the respondent No. 3 to release 35 MCFT from Und-I Irrigation Project since the petition is finally heard by the Court and looking to the facts and circumstances of the case while disposing of this petition, the respondent No.4 and other Officers are required to be directed to release the remaining 35 MCFT water after making the appropriate arrangement for law and order situation and after protecting the interest of vadas people who are at the riverbed.
7 In support of his submission that vada people are in unauthorized occupation of the land at riverbed and they should immediately be removed, Mr. Patel appearing with Mr. Kavina has relied on the decision of this Court in the case of Naginbhai Govindbhai Kahar V/s. State of Gujarat and others, 2009 (2) 50 GLR 1213 wherein it is held that without prior permission of the authority, the construction of palas in the basin of river Tapi is itself an illegal activity. Since the petitioners were indulged in such illegal activities of constructing palas and thereby, restricting the natural flow of water, the respondent authorities are quite justified in terminating the lease agreement granted in favour of the petitioners.
7.1 Mr. Patel has also relied on the decision of the Apex Court in the case of Common Cause, a Registered Society V/s. Union of India and others, AIR 1999 SC 2979 in support of his submission that the respondent No.1 State Government has subsequently taken the decision not to release water from the Dam in the riverbed, ignoring its earlier decision to release 70 MCFT water. It is clearly an executive order and is amenable to the judicial scrutiny and, therefore, can constitute a valid basis for exercise of power of review by this Court. In the case before the Apex Court, though an order was issued in the name of the President, it does not become an order of the President passed by him personally, but remains basically and essentially an order of the Minister on whose advise the President had acted and passed the order. The Court, therefore, held that the authenticity, validity and correctness of such an order can be examined by the Apex Court inspite of the order having been expressed in the name of the President. The immunity available to the President under Article 361 of the Constitution cannot be extended to the orders passed in the name of the President under Article 77 (1) or 77(2) of the Constitution.
7.2 Mr. Patel has also relied this decision for the proposition that where public functionaries are involved and matter relates to the violation of the fundamental rights or enforcement of public duties etc., the remedy would lie, at the option of the petitioner, under the public law notwithstanding that the damages are also claimed in those proceedings.
7.3 Mr. Patel, in support of his submission that by virtue of non-release of water in time, the petitioners and other farmers have suffered a lot and hence, they are entitled to claim compensation, has relied on the decision of the Apex Court in the case of Nilabati Behera (Smt.) @ Lalita Behera (Through the Supreme Court Legal Aid Committee) V/s. State of Orissa and others, (1993) 2 SCC 746, wherein it is held that enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. Award of compensation in a proceeding under Article 32 by the Supreme Court or by the High Court under Article 226 is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort.
7.4 Mr. Patel in support of his contention for claiming compensation has also relied on the decision of the Apex Court in the case of M. S. Grewal and another V/s. Deep Chand Sood and others, AIR 2001 SC 3660 wherein it is held that currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system - affectation of the people has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of civil Courts obligation to award damages. As a matter of fact after referring to the decision in D. K. Basu, the Court observed that Law Courts will lose its efficacy if it cannot possibly respond to the need of the society - technicalities there might be many but the justice oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice.
7.5 Mr. Patel further relied on the decision of the Apex Court in the case of Urban Improvement Trust, Bikaner V/s. Mohan Lal (2010) 1 SCC 512 in support of his submission that by not taking the decision in time for releasing the water, the petitioners and other farmers were placed into great hardship and difficulty and for want of water, they could not take either monsoon or winter crop. The respondent authorities, more particularly, the Deputy Executive Engineer is responsible for such inaction. The Apex Court has held that the reluctance to take decision or tendency to challenge all orders against them, is not the policy of the Government or statutory authorities, but is attributable to some Officers who are responsible for taking decisions and/or Officers in-charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision-making to Courts and Tribunals.
8 Affidavit-in-reply is filed on behalf of Respondent No.2 Executive Engineer, Jamnagar Irrigation Division, Jamnagar. Mr. Nikunt Raval and Mr. Rashesh Rindani, learned Assistant Government Pleaders appearing for the respondents State Authorities, have submitted that bare reading of the order dated 01.12.2009 would clearly reflect that the State Government has given sanction to release the water on the basis of proposal submitted by the Deputy Executive Engineer, Irrigation Sub-Division No.2, Jamnagar, and it is pertinent to note that the application for releasing the water was received on 18.11.2009 and the decision was immediately taken in this regard. There was no intention of the respondents authorities that the petitioners should not get the water or no water should be distributed in their favour. It is further submitted that, in fact, the water was released on 15.12.2009 to the extent of around 4 MCFT and there was a big problem of law and order situation and certain complaints and FIRS were filed by the Deputy Executive Engineer. By virtue of the decision to release the water, the vada people were adversely affected and they were required to be taken care of before taking the decision dated 30.12.2009. It is further submitted that all possible efforts were made to release the water, but the situation was so grave and therefore the impugned order came to be passed which is on the basis of the correct material on record and after taking into consideration all relevant aspects and circumstances of the case and therefore it cannot be said to be arbitrary, illegal or mala fide. It is further submitted that at the time of meeting, the option was given to the petitioners that water should be drawn through canal with a view to see that the vada persons may not be adversely affected and the petitioners also get the benefit of water, but the same was denied by the petitioners.
9 So far as the petitioners contention with regard to the wastage of water and non efficient use of water is concerned, it is submitted that the respondents authorities have made all endeavour to see that there was no wastage of water and all possible steps were taken to save the water in the best manner.
10 Affidavit-in-reply is filed on behalf of respondent Nos. 5 and 6, who are subsequently joined as respondents as they are directly affected by the decision of releasing the water in the riverbed. Mr. S.P. Majmudar, learned Advocate, Appearing for the respondent Nos.5 and 6 has submitted that the petition deserves to be dismissed on the ground of availability of efficacious alternative remedy. It is further submitted that the petitioners have challenged the order dated 30.12.2009 passed by the respondent No.2. The said order can be challenged before the competent authority as per the provisions of the Bombay Irrigation Act, 1879. He further submitted that in view of availability of alternative efficacious remedy, this Court may not exercise the extraordinary jurisdiction under Article 226 of the Constitution of India and the petitioners may be relegated to avail such alternative remedy. Mr. Majmudar further submitted that the villages of the present petitioners are situated around 20 kms away from the Und-I Dam and, therefore, they do not have any vested legal right to claim release of water from such Dam. The respondent Nos.5 and 6 and others have raised objections to release of water because severe difficulties are likely to be faced if the water is released to the village of the present petitioners. It is further submitted that as far as the respondent No.5 is concerned, his village is situated at a lower level and, therefore, if the water is released to the villages of the petitioners, there is all likelihood that the land of the respondent No.5 and other similarly situated persons would be heavily damaged and thus standing crops thereon would be washed away. Even the farmer of Uparvas are also affected as after the release of water, there will not be enough water available for cultivation of the lands of other similarly situated persons. Mr. Majmudar further submitted that the State Government has taken a revised decision after considering the overall situation and this being the policy decision, no indulgence should be shown by this Court.
10.1 It is further submitted that the officers are performing their duties by exercising their powers under the provisions of the Bombay Irrigation Act, 1879 and are doing so under good faith and the petitioners have levelled unnecessary and baseless allegations against them. The Court should restrain the petitioners from making such baseless allegation against the responsible officers of the State Government.
11 The respondent No.3 i.e. Deputy Executive Engineer was joined as party respondent No.3 in his individual capacity and has filed an affidavit-in-reply. Mr. Satyam Y.Chhaya, learned Advocate, appeared on behalf of him. He has submitted that the respondent No.3 has followed all the procedures as per the orders issued by the Higher Authority and has acted in accordance with the law. It is further submitted that on 01.12.2009 the respondent No.1 had issued a communication/order to respondent No.2 for releasing 70.00 MCFT water from Und-I Dam. The respondent No.3, as Deputy Executive Engineer, is an obligation to release the water from Und-I Dam. The communication dated 01.12.2009 was received by the respondent No.2 on 02.12.2009 and thereafter on 5.12.2009, the respondent No.3 has issued a letter to the Mamlatdar, Dhrol, about vada/encroachment by the concerned villagers on riverbed. As per the rule and the policy of the Government, the Revenue Authority is duty bound to look after the encroachment/vada created by the villagers on riverbed. It is further submitted that on 08.12.2009, Mamlatdar, Dhrol, has informed the respondent No.3 that the vada are unauthorized and as soon as water is released from Dam, the Vada would automatically be removed. On 08.12.2009, the respondent No.3 has requested the Deputy Superintendent of Police, Jamnagar for providing police protection. On 15.12.2009, the respondent No.3 has started proceedings for releasing the water from dam with the police protection. However, there was an attack on the officers by mob of more than 1500 people and there was the situation of law and order. The concerned officer, viz. Officer from Irrigation Department Mamlatdar and other officers were present at that time. Ultimately, FIR was lodged on the very same day with respect to the said incident and because of that water could not be released. As a matter of fact, two doors were opened upto two feet and thereafter, it was stopped because the Collector has informed the Superintending Engineer that water may not be released from Dam in view of the law and order situation. On 16.12.2009, detailed report, stating of all the above referred facts, was made by the respondent No.3 to respondent No.2. On the basis of this, Mr. Chhaya has submitted that the respondent No.3 is not at all responsible for not releasing the water from Dam and is duty bound to carry on the instructions given by the petitioners and, hence, the allegations made against him are of no consequence and the petitioners must be taken to task for making such wild allegations against the government officer.
12 After the interim order was passed by this Court on 01.02.2000, further affidavit was filed on behalf of the respondent No.2 putting on record the latest position with regard to the availability of water in Und-I Dam. It is stated that the Dam at its maximum capacity can hold approximately 2538 MCFT gross, inclusive of dead storage of 248 MCFT water. It is further stated that at present the storage in the dam is of 446 MCFT as on 13.03.2010, out of which, 230 MCFT is the storage, which being at a level lower than the crest height of the gates of the dam, which are used to spill water into the riverbed. Apart from the riverbed, there are essentially three other sources which are permitted to draw water from the Dam, being a canal running parallel to the left bank of the river, a shorter canal parallel to the right bank to the river as well as a direct pump and tank supply for the Jamnagar Municipality which is fitted directly underwater within the dam control area itself. Apart from these three essential sources, there is also a supply line for the various villages towards the side of the Jamnagar Municipality, to which also, drinking water is supplied. It is further submitted that the first priority, especially in the summer month, is given to supply of drinking water, especially to Jamnagar Municipality as well as surrounding villages which are approximately 35 villages, which draws an average of 35 MCFT of water per month starting from the month of March till about July, being the summer months, during which there is a standing order of the State Government to supply drinking water to the above mentioned quantum to the Jamnagar Municipality as well as surrounding villages. When 35 MCFT of water is drawn, there is a corresponding loss of about approximately 45 MCFT due to evaporation and percolation into the dam area bed. This amount of loss continues regardless the water is supplied or not. It is therefore submitted that for an approximate supply of 35 MCFT, total storage of roughly 75-85 MCFT water is required. These quantum would vary depending on the availability of the water in the dam as well as the area covered by the water thereof. It is further submitted that looking to the level of water presently in the dam, the same is barely enough to supply for drinking water purposes. The approximate figure placed before the court goes to show that in the month of July, the only quantum of water remaining would be about 104-107 MCFT, most of which will consist of silt, which continuously runs every year into the dam from catchment area. The dead water storage are inclusive of this amount of silt. This silt keeps on adding on an yearly basis due to inflow of water from the catchment area. Since drinking water supply being of top priority during the summer months, there is no water practically available for the purpose of providing for cultivation of crops. Therefore, it is submitted that, looking to the seriousness of the drinking water supply situation, which must be given first priority, if water is supplied for agricultural purposes, it will lead to a situation where there is minimal or no water supply available by around end of June prior to the monsoon, for the supply of water for drinking purposes. He has, therefore, submitted that no further direction would be issued for release of the remaining 35 MCFT water supply and the petition therefore be disposed of accordingly.
13 Having heard learned Advocates appearing for the parties and having considered their rival submissions and in light of the statutory provisions and decided case laws on the subject and having gone through the orders passed by the respondents authorities, prior to and during the pendency of this petition, the Court is of the view that, it is not advisable now to pass any further order for release of the water. But, this does not mean that the respondents authorities are not at all responsible for the present situation and for the precarious position under which the petitioners and other farmers are placed because of non-releasing of water in time. Not only they have lost the monsoon and winter crops, but they have also suffered a lot because of the frequent changes in the decisions with regard of the release of water.
14 The first decision was taken on 01.12.2009 for release of 70 MCFT water from Und-I Dam in the river Und. The petitioners and other farmers have paid necessary charges. However, because of the alleged protest by the Vada people as well as the farmers staying at Uparvas, the said decision was changed and fresh decision was taken on 30.12.2009 for not releasing the water. This order was challenged before this Court in the present petition and a specific direction was issued on 28.01.2010 for proper implementation of the order dated 01.12.2009. Despite this direction, the order was passed by the Joint Secretary, Narmada Water Resources and Water Suply and Kalpasar Department on 27.01.2010, giving four reasons for not releasing 70 MCFT water. This order was placed before this Court and detailed hearing was made. After considering the entire facts and circumstances of the case, this Court has passed an interim order on 01.02.2010 not only admitting the petition but also directing the respondents authorities to release 35 MCFT water. The Joint Secretary has issued further communication on 26.03.2010 to the Superintending Engineer, Rajkot and informing him that it is not possible to release any further water as any further release of water would create further serious problem for drinking water. It is also directed to the Superintending Engineer to file further affidavit to this effect before this Court.
15 In light of the above development during the pendency of this petition, the demand of the petitioners is required to be examined. The petitioners have been getting water for cultivation. After construction of Und-I Dam, this problem was started and on making representations, the water could be released by the authorities depending upon the availability of water in Und-I Dam. Considering the situation prevailing on the date of their representation, a decision was taken on 01.12.2009 to release 70 MCFT water. They have made the estimate considering the position that would be prevalent upto June 2010. However, on the basis of the affidavits filed on behalf of the respondents authorities and the documents submitted along with detailed calculations, the actual position of water in the Dam is quite different and considering this subsequent situation, the authorities have taken the subsequent decisions on 30.12.2009, 27.01.2010 and 26.03.2010. In view of their specific stand and categorical finding that it is not possible to release any further water from the Dam, especially when an interim order was already passed by this Court on 01.02.2010 for releasing 35 MCFT water, it is not possible nor it is advisable to pass any order for release of any further water from the Dam. The prayer made by the petitioners in this regard is, therefore, not granted in view of the changed circumstances.
16 The pleadings of the parties, however, give rise to certain other issues, which cannot be lost sight of and the Court cannot ignore or turn its eyes to those issues. There are three important issues which require special attention of this Court and certain directions are required to be issued to the respondents authorities.
17 The first and foremost issue is the role played by the Deputy Executive Engineer in this entire matter. A very serious allegation is made against him. As per the say of the petitioners, he has intentionally and purposefully delayed the release of the water. It is his habit to ask for money from the farmers. One of the petitioners has stated on oath that an amount of Rs. 20,000/- was demanded from him. An allegation is also made that he has instigated the Vada people as well as the farmers staying at Uparvas. The objections raised by these persons are at the behest or instigation of the respondent No.3 i.e. Deputy Executive Engineer. It is also an allegation that he has acquired huge assets disproportionate to his income. Even if these allegations are not accepted on their face value, a detailed inquiry is required to be undertaken so as to bring out the truth in the matter.
18 The second issue is unauthorized and illegal occupation and cultivation by the Vada people in the land of riverbed. It is only because of the protest lodged by them, the release of water was stopped. The authorities are therefore supposed to decide as to whether they are in legal occupation or whether any permission was granted by the State Government or their concerned authorities to occupy such land in the riverbed. If there is no document establishing the title over the land which they are occupying, they have no authority to stay on the land in the riverbed. The respondent No.3 is the Canal Officer under the provisions of the Irrigation Act. It is his bounden duty to preserve the property. Detailed submissions are made on behalf of the petitioners in this regard and relevant provisions are also quoted. If the respondent No.3 is unable to take any action against them, there is no need for him to occupy this post. The State Government will have to take some strict actions in this regard. In any case, if the Vada people could not have any title in their favour, they are required to be removed immediately irrespective of any protest may be lodged by them. Under the guise of law and order situation, their illegal occupation cannot be perpetuated. The respondents authorities are therefore supposed to take appropriate action in this regard.
19 The third important issue which is highlighted by the petitioners by production of certain photographs which clearly show the wastage of water. On the one hand water is not available for cultivation and on the other hand, there is huge wastage of such water. No satisfactory explanation has come forward from the respondents authorities on this point. The petitioners have produced these photographs at page 54 to page 58. The water is flowing on the roads. There are breaches made in canals to prevent the normal flow of water. These photographs clearly give an indication that some people are playing mischief with the normal flow of water and for their own use, such attempts were made by them. It is also the duty of the Deputy Executive Engineer respondent No.3 to look into these circumstances and not only to take appropriate measures for preventing such misuse of water but also to catch hold of these people who are involved in such activities. Nothing has been done in this regard.
20 Various authorities have been cited by the petitioners in support of their contentions. There is no dispute about the propositions laid down in those decisions. The court has ample power to make judicial review of any administrative decision. The court has also ample power to award compensation in appropriate cases. The grievance of the petitioners is partially redressed by the Court while passing the imterim order for release of 35 MCFT water. Remaining 35 MCFT water could not be released because of the situation discussed here-in-above. Whatever may be the lapses or lacunae pointed out by the petitioners are properly dealt with by the Court and the respondents authorities are directed to take necessary action in this regard. The question therefore remains as to whether the petitioners are entitled to any compensation for the loss suffered by them for non-release of water from the dam. After considering the entire facts and circumstances of the case and taking overall view of the matter, the Court is not inclined to award any compensation to the petitioners except the directions that the amount of water charges was paid by them for release of 70 MCFT water whereas in fact only 35 MCFT water was released and, hence, 50% of the amount should be given back to the persons petitioners as well as other farmers who have made such payment to the respondents authorities.
21 So far as the three issues discussed here-in-above are concerned the respondent No.1-State of Gujarat is hereby directed to make necessary inquiry in the allegations levelled against the respondent No.3. Such an inquiry must be made by an official not below the rank of Superintending Engineer and on inquiry if the respondent No.3 is found to be guilty, after considering the explanation, that may be offered by him, necessary action in accordance with law should be taken against him. The State Government is further directed to take all necessary actions very promptly for removal of the Vada people from the riverbed and under no circumstances they should be allowed to cultivate the land in the riverbed. The State Government is further directed to appoint an appropriate Officer to make inquiry with regard to the wastage of water which is alleged by the petitioners and photographs are also produced along with the petition. While making inquiry in all the three issues, if the State Government is of the view that the petitioners and/or other farmers who were affected by virtue of the above issues, can render assistance, their views should also be called for and they are to be taken into consideration while taking final decision in the matter.
22 With these directions and observations this petition is accordingly disposed of and the rule is discharged without any order as to costs.
(K. A. PUJ, J.) pnnair Top