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Judgment
This writ-petition is filed by way of Public Interest Litigation,
under Article 226 of the Constitution of India seeking directions
by issuing a writ, directing the respondent authorities to release
water from Meshwo Canal to fill up the pond of village Bherai as
early as possible.
In the petition, it is stated that the petitioners are agriculturists
having agricultural land in village Bherai, as they are seeking
directions in the interest of farmers of village Bherai, as such,
it is stated that it involves public interest also. It is the
allegation of the petitioners that there is 700 vighas of
agricultural land which is being irrigated by drawing water from
the pond of village Bherai and normally, in the month of
November/December, on the demand of village people water is
released from Meshwo Irrigation Canal to fill up the pond of
village Bherai and from such water the land of 700 vighas is
being cultivated. It is alleged in the petition that this year also,
there was a request from the Sarpanchas of villages Bherai to
the Deputy Executive Engineer, Meshwo Irrigation Project,
situated at Bareja, vide letters dated 15.11.2016 and
16.11.2016, for release of water to fill up the village pond.
Principally, it is the grievance of the petitioners that in spite of
availability of water in Meshwo Canal, only to protect the
persons who have illegally cultivated the land in the pond of
village Bherai the respondents are not releasing the water.
Reference is also made in the writ-petition to the letter dated
19.12.2016 of the respondent no.3- Deputy Collector, Kheda
and it is stated that the petitioners have reliably learnt that by
the said letter, the Deputy Collector, Kheda has requested the
respondent no.2 to ensure filling up of water for the pond of
village Bherai, in spite of the same, the respondents have not
acted upon. It is pleaded that earlier also, it was the practice
prevailing of releasing the water in the month of
November/December to fill up the pond of village Bherai, but
this year, in spite of the availability of water, the respondents
are not taking steps to release the water to fill up the pond of
village Bherai. In view of the same, it is alleged that the
petitioners and other villagers are deprived of irrigation of their
land.
Further affidavit is also filed by the petitioners stating that the
concerned authorities are raising a plea that pollution of water
is the reason for not filling up the pond of village Bherai to
protect the lands of the village. It is stated that the same is not
the real reason for not filling up the pond of the village. It is
further stated in the further affidavit that the same water which
is alleged to be polluted is being supplied to other villages for
irrigation purpose, such as Navagam, Pinglaj, Govindpura,
Nayaka, Kanera, Kashipura and also part of village Bherai
through sub-canals which are locally referred to as "Open
Kansh" It is further stated that the very same water is being
used in the aforesaid villages for irrigation and such practice
was in vogue to release the water for the last more than 20
years and the same is being continued at the present also.
Affidavit in reply is filed on behalf of 3rd respondent, i.e. Deputy
Executive Engineer, Meshwo Irrigation Sub Division. In the reply
affidavit, while denying various allegations made by the
petitioners, it is stated that Bherai village lake is under the
Command Area of Khari Sluice system and the tail ends of
Meshwo main Canal meets to Khari river near Bidaj village,
wherein the water of Khari river is contaminated because of
nearby Industrial Zone, i.e. Vatva G.I.D.C. It is further stated in
the reply affidavit that generally in monsoon season when large
quantum of rainy water is available in Khari river, it decreases
the quantity of the contaminated water in the river and at that
time, Bherai tank fills with less contaminated water and that
water is used by the people for irrigation purpose during Kharif
season, and therefore, it is not correct to say that every year
the water is released from Meshwo Canal before rainy season
for filling the Bherai tank. With reference to the allegation of
the petitioners that the same contaminated water is being
supplied to the villages such as Navagam, Pinglaj, Govindpura,
Nayaka, Kanera, Kashipura etc and also part of Bherai village
through sub-canals, it is stated that the villagers of the above
villages take water on their own with the help of irrigation
pumps and the authorities have never stored such
contaminated water in the villages referred above. At the same
time, it is stated that if Sarpanch of the Gram Panchayat of this
village is ready to pass resolution and take all the
responsibility, the respondent authorities are prepared to take
steps to release the water for storage in Bherai tank. Further,
by referring to the report dated 17th January 2017, which is
submitted by the respondent no.3 to the Chief Engineer
(Central Gujarat) and to Joint Secretary, Water Resources,
Water Supply and Kalpsar Department, it is stated that the said
authorities were also apprised of the factual aspects by
pointing out that the water is highly chemical concentrated and
harmful for any activities. It is further stated in the said report
that if any villager is in urgent requirement of water, in such
cases, to help such villagers, the authorities provide water to
small ponds from which the villagers can draw water by pump
in stead of filling large tank of Bherai village.
We have heard the learned counsel Shri H.L. Patel for the
petitioners and Shri Dhawan M. Jayswal, learned Assistant
Government Pleader appearing for the respondent authorities.
By referring to the pleadings on record and other material
documents which are in the nature of communications, it is
contended by the learned counsel for the petitioners that
though the lands of the petitioners are within the command
area of Khari Sluice system, in spite of the same, the petitioners
and other villagers of the village are deprived of the irrigation
of their lands by the respondents by not releasing water to fill
the pond of village Bherai. It is submitted that only because
there is encroachment by some persons in the pond of village
Bherai, to protect such encroachers water is not being released
to fill the village pond under the guise of chemical
concentration and pollution of water. By pointing out the stand
of the respondents in the reply affidavit that in some other
villages small ponds are filled with the same water which is
ultimately being used for cultivation by the villagers by lifting
water, it is submitted that there is no reason or justification for
discriminating the petitioners and villagers of the village Bherai
for not releasing the water to irrigate their lands.
On the other hand, it is contended by the learned Assistant
Government Pleader that there was no practice of releasing
water for growing crop in the past as pleaded. It is submitted
that only during the monsoon season, water was released from
Meshwo Canal wherein contamination is diluted in view of the
rains, as such, presently, water is chemically contaminated and
the same is not released. It is further submitted that in some
villages, small ponds are filled on the request of agriculturists
but such agriculturists on their own are using the water from
small pond by drift irrigation and the same is the reason not to
fill up the large tank of village Bherai. Learned Assistant
Government Pleader further submits that the allegation of the
petitioners that only because of encroachment by some
persons by way of cultivation in the village pond the
respondents are not releasing the water, is incorrect and not
substantiated by any material.
From the pleadings and the submissions made by the learned
counsel on both the sides, it is clear that the land in village
Bherai which is being irrigated by drawing water from the pond
is within the command area of Khari sluice system and the tail
ends of Meshwo main Canal meets to Khari river near Bidaj
village. From the statements made in the reply affidavit, it
appears that only because the water of Khari river is
contaminated in view of the nearby Vatva GIDC, the
respondents are not releasing the water to fill up the pond of
village Bherai. At the same time, it is not in dispute that small
ponds are filled in other villages such as Navagam, Pinglaj,
Govindpura, Nayaka, Kanera, Kashipura and the very same
water is being used by them by drawing the water for irrigating
their lands. If such water is used for irrigable purpose by such
villagers, the same cannot be the sole reason for not filling the
pond of village Bherai.
It is to be noticed that whether water should be released or
not is primarily the function of the respondents and in such
matters normally, this Court is slow in issuing directions for
release of water. However, in view of the submission that
similarly placed villages are taking steps to fill the small ponds,
which in turn is being used for irrigation of the land of such
villagers, the relief sought by the petitioners deserves
consideration by giving appropriate directions. Furthermore, it
is specifically pleaded by the petitioners that only to protect
the encroachers of the village pond the respondents are not
taking steps for release of water and the allegation of
contamination of water is only pretext for not releasing the
water. Though learned counsel placed on record the
communication to support his submission that there is
encroachment of the village pond, but it is not possible to
determine and decide whether encroachers are there or not
unless full-fledged inquiry is conducted for the same.
Having regard to the aforesaid findings recorded as referred
above, in stead of granting prayers as sought by the
petitioners, we deem it appropriate that the matter requires
attention of the higher authorities concerned. As it is stated
that the Superintending Engineer, Mahi Irrigation Circle, Nadiad
is the concerned authority, we direct the Superintending
Engineer, Mahi Irrigation Circle, Nadiad, to inspect the land of
the pond of village Bherai within a period of one week from the
date of receipt of this order and to decide within a period of two
weeks thereafter whether it is in the interest of the petitioners
and other villagers of village Bherai to accede to the request of
the petitioners for release of water to the pond of village
Bherai. It is open to the Superintending Engineer, Mahi
Irrigation Circle, Nadiad to look into the alleged encroachments
in the pond of village Bherai as alleged by the petitioners. The
Superintending Engineer to take decision for release of water
independently. On inspection of the village pond, if the
Superintending Engineer finds that there are large-scale
encroachments in the pond in question, he shall issue
appropriate directions to the concerned authorities for taking
steps for removal of encroachments and to see that at no point
of time such village pond is encroached for raising crops or for
any other purpose. It is also made clear that on inspection if
crops on the land of pond are found to be in advanced stage of
harvesting, such crops shall not be destroyed, however, steps
shall be taken for removal of encroachment after existing crops
are harvested.
The petitioners to approach the respondent and produce
copy of this order before the Superintending Engineer, Mahi
Irrigation Circle, Nadiad and the Superintending Engineer to
inform the petitioners in advance before inspecting the pond in
question.
Though the Superintending Engineer, Mahi Irrigation
Circle, Nadiad is not party respondent in this petition, copy of
this order be marked to him.
Subject to the above observations and directions, this
writ-petition stands disposed of. No order as to costs.