WP Nos. 3599 & 5264/2009 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 3599 OF 2009 1. Shivkumar s/o. Shivnathsing Thakur, Age 49 yrs., Occu. Agriculture, R/o. Village Deulgaon Gujari, Tq. Jamner, Dist. Jalgaon. 2. Subhash s/o. Suryabhan Rathod, Age 35 yrs., Occu. Agriculture & Village Panchayat Member, R/o. Village Palaskhed Kakad, Tq. Jamner, Dist. Jalgaon. 3. Gulsher s/o. Rustam Tadvi, Age 65 yrs., Occu. Agriculture & Village Panchayat Member, R/o. Village Deulgaon Gujari, Tq. Jamner, Dist. Jalgaon. 4. Burhan s/o. Fatru Tadvi, Age 60 yrs., Occu. Agriculture, R/o. Village Deulgaon Gujari, Tq. Jamner, Dist. Jalgaon. 5. Ananda s/o. Omkar Wakode, Age 30 yrs., Occu. Agriculture, R/o. Village Deulgaon Gujari, Tq. Jamner, Dist. Jalgaon. 6. Rambhau s/o. Tukaram Satale, Age 50 yrs., Occu. Agriculture, R/o. Tornale, Tq. Jamner, Dist. Jalgaon. ....Petitioners. Versus WP Nos. 3599 & 5264/2009 2 1. The State of Maharashtra through the Secretary, Department of Water Conservation, M.S., Mantralaya, Mumbai. 2. The Secretary, Small Irrigation Department, M.S. Mantralaya, Mumbai. 3. The Collector, Aurangabad. 4. The Executive Engineer, Small Irrigation Department, Aurangabad Division, Aurangabad. 5. Godavari Basin Development Corporation, through its President, Aurangabad Division, Aurangabad. ....Respondents. Mr. Khaire h/f. Mr. S.S. Dande, Advocate for petitioners. Mr. N.B. Khandare, Government Pleader for respondent Nos. 1 to 4. Mr. S.G. Sangle, Advocate for respondent No. 5. WITH WRIT PETITION NO. 5264 OF 2009 Smt. Gayatribai Shivnath Singh Thakur, Age 60 yrs., Occu. Agriculture, R/o. Hiwari, Tq. Soygoan, Dist. Aurangabad. ....Petitioners. Versus WP Nos. 3599 & 5264/2009 3 1. The State of Maharashtra, Through its Secretary, Department of Water Conservation, Mantralaya, Mumbai - 32. 2. The Secretary, Small Irrigation Department, Mantralaya, Mumbai -32. 3. The Collector, Aurangabad, Dist. Aurangabad. 4. The Tahsildar, Soygaon, Tq. Soygaon, Dist. Aurangabad. 5. The Talathi, Hiwari, Sajja Malkhed, Tq. Soygaon, Dist. Aurangabad. 6. The Godawari Marathwada Patbandhare Vikas Mahamandal, Through its President, Sinchan Bhavan, Aurangabad. 7. The Managing Director, Godawari Marathwada Patbandhare Vikas Mahamandal, Sinchal Bhavan, Aurangabad. 8. The Executive Engineer, Small Irrigation Department, Aurangabad Division, Aurangabad. 9. The Sub Divisional Engineer, Minor Irrigation Sub Division, Sillod, Dist. Aurangabd. 10. The Sub Divisional Officer, Minor Irrigation, Sub Division, Sillod, Dist. Aurangabad. WP Nos. 3599 & 5264/2009 4 11. Trimbak s/o. Dayaram Shingare, Age 52 yrs., Occu. Agriculture & Sarpanch of village Molkheda, Tq. Soygaon, Dist. Aurangabd. ....Respondents. Mr. P. V. Mandlik, Sr. Counsel with Mr. M.B. Vaishnav, Advocate for petitioner. Mr. N.B. Khandare, Government Pleader for respondent Nos. 1 to 5. Mr. S.G. Sangle, Advocate for respondent No. 8. Mr. Ajay Deshpande, Advocate for respondent No. 11. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on : 17th August, 2011. Pronounced on : 23rd August 2011. ORDER : [ PER T. V. NALAWADE, J. ] 1. Both the petitions are filed under Articles 226 and 227 of Constitution of India and also under the provisions of the Land Acquisition Act, 1894. They are filed for getting relief of direction to prevent the State Government and Marathawada Patbandhare Vikas Mandal, a Corporation of the State Government created for Marathwada Region from constructing Hiwari Storage Tank at village Hiwari, Tahsil Soygaon, Dist. Aurangabad. 2. The first proceeding is filed by few persons of Tahsil Jamner, WP Nos. 3599 & 5264/2009 5 District Jalgaon and they have claimed that they are beneficiaries of Dhamangaon Water Storage Tank, constructed in Buldhana District of Vidharbha Region and their interest will be affected if Hiwari Storage Tank is constructed. It is their case that the inflow of water to their dam will be reduced to considerable extent. The petitioner from the second proceeding is resident of Hiwari itself and she has contended that her land is irrigated, situated on the bank of river Sur and she would lose her land due to this project. It is also her case that the respondents are not following the procedure laid down for acquisition of land. 3. It is the case of the petitioners that Dhamangaon Bade dam was constructed in the year 1983 and it supplies water for drinking purpose atleast to four villages, the population of which is around 40 thousand people. It is contended that the proposed Hiwari Project is situated at the distance of hardly 0.5 to 1.5 km from Dhamangaon Bade dam and it would be in the catchment area in Dhamangaon Bade dam. It is their contention that due to proposed Hiwari dam, there will not be sufficient water in Dhamangaon Bade dam and they may not get even drinking water. It is their contention that both the dams would be on the same river and the construction of Hiwari dam is not in public interest. WP Nos. 3599 & 5264/2009 6 4. It is the case of petitioners that they approached Irrigation Office of Buldhana District and through Vidharbha Patbandhare Vikas Mandal correspondence was made to the State Government, but the respondents are not stopping the construction of Hiwari dam. It is contended that the permission/sanction for Hiwari dam is obtained by suppressing material facts and by showing that the dam would be at the distance of 4 km from Hiwari village and it would be constructed on one brook which meets Kag river when it is being constructed on Sur river. 5. It is the case of the petitioner from the second proceedings that the respondents have created some record hurriedly without issuing notice under the Land Acquisition Act and without following proper procedure. It is contended that the consent of villagers is not obtained. Some allegations are made against the officers of Irrigation Department, Marathwada Region that only to grab Government money, the project is undertaken. 6. Executive Engineer of Marathwada Patbandhare Vikas Mandal has filed affidavit in support of Hiwari Project. It is contended that there is sufficient water available for Hiwari dam WP Nos. 3599 & 5264/2009 7 and the dam is being constructed for utilization of water resources made available to this region. Village Sarpanch of village Hiwari has filed the affidavit that the petitioner has falsely contended that the consent of villagers is not obtained. He has contended that the project would be in the interest of the people, atleast of 3 villages of this region and the project is undertaken in a public interest. 7. Notices were issued in both the proceedings and all the sides are heard. At the time of appreciation of rival contentions and the record, it needs to be kept in mind that over Hiwari project, there is the dispute between Corporation created for Marathwada Region and the Corporation created for Vidharbha Region. The office of Irrigation Department of Buldhana district has issued some certificates and has supplied copies of correspondence to the petitioners which support their case. In both the proceedings, for the State Government, it was submitted that on the basis of record and in public interest, Hiwari project is undertaken. The learned Government Pleader also submitted that the State Government is taking action against the officers, who made some correspondence available and who issued some certificates as this record has created confusion in the minds of people. WP Nos. 3599 & 5264/2009 8 8. This Court has carefully gone through a copy of project prepared by Aurangabad Irrigation Office. A copy of map of Aurangabad, Jalgaon and Buldhana districts prepared by the State Government is produced and the petitioners have produced copies of maps prepared by Irrigation Department of Vidharbha Corporation. Streams, brooks (Nalas) and rivers are shown in the maps. From the record, it can be said that Dhamangaon project is situated on northern side and Hiwari project is situated on southern side. To the southern side of Hiwari project, there are hills and from there the water starts flowing towards northern direction. Some record in respect of Dhamangaon dam is produced by petitioners to show the figures of quantity of water which came towards Dhamangaon dam from the year 1999. However, such figures for the period subsequent to filing of the proceedings are not produced. The record shows that the project of Hiwari dam came to be prepared in the year 2003-04 and the Corporation created for Marathwada Region approved it in April 2006. Certificate relating to availability of water was obtained from the concerned department of the State Government, Chief Engineer of Water Development, Nashik on 5.8.2005. The certificate shows that it was issued in respect of five projects prepared by Corporation created for Marathawada and they were for water allotted to WP Nos. 3599 & 5264/2009 9 Marathwada Region in Tapi basin. The record shows that water was available for Hiwari dam and as per the availability of water, the capacity of dam was fixed as 1.58 TMC. The record shows that the proposal was made that the dam was to be constructed on local Nala (brook) passing by the side of Hiwari village. The record shows that out of the water of 33.76 TMC available for Marathwada Region in Tapi basin, 1.58 TMC water was to be used for Hiwari Project. There is a copy of letter of Chief Engineer of Patbandhare Division of State Government to show that on 23.4.2004 proposal was prepared for utilization of 30.626 TMC water from available 33.975 TMC water by Marathwada Patbandhare Vikas Mandal and Hiwari Project was included in this plan. In the year 2004 the proposed capacity of this dam was shown as 1.630 TMC. The project was finalized for capacity of 1.58 TMC. 9. The record shows that questions were asked in the Legislative Assembly of the State in view of the aforesaid dispute and the concerned Minister had informed that there was certificate of Chief Engineer, Water Resources, Nashik dated 5.8.2005 and so there was no reason to fear that Hiwari Project would affect adversely Dhamangaon Bade dam. Some record is produced to show that from the State Government, the Corporation prepared WP Nos. 3599 & 5264/2009 10 for Vidharbha Region had obtained copy of order under which the allocation of water was shown by the State Government. In this information of June 2007 also Hiwari project was shown. 9. The record produced shows that the Corporation created for Marathwada Region had undertaken the work of clearing backlog of Marathwada Region in respect of utilization of water resources made available for Marathwada Region from Tapi basin. Hiwari Project was part of that drive. The aforesaid record shows that on the basis of entitlement of the people of Marathwada Region, the project is prepared. 10. In view of the aforesaid circumstances, there is no need to consider the technical aspect of the project. There is not much dispute also over the point of feasibility with regard to the cost of the project. The record shows that the project is undertaken for the benefit of the people of atleast three villages like Hiwari, Molkheda and Pimpala. It is not the case of the petitioners that the persons of these three villages were also benefited due to Dhamangaon Bade Project. 11. The petitioners have produced some record in respect of WP Nos. 3599 & 5264/2009 11 Dhamangaon Bade dam and it shows that it is of the capacity of 2.69 TMC. It is constructed for the benefit of the persons of villages like Dhamangaon Bade, Degujari, Palaskhed Kakar and Tornala. The record of Irrigation Office of Buldhana District, Vidharbha Region shows that the distance between Dhamangaon dam and Hiwari dam is around 2 km. (Letter dated 1.4.2009 of Movala Office). The certificates issued by Buldhana Office are produced to show that during last 20 years, only in five years Dhamangaon dam was filled to its capacity. Buldhana Office, expressed apprehension that due to Hiwari dam, Dhamangaon dam may not get sufficient water and it may even become dry. The catchment area of Dhamangaon dam is shown as 26.57 Sq km and catchment area of Hiwari dam is shown as 16.16 Sq km. 12. The affidavit filed by both the sides and the record show that initially it was mentioned that Hiwari dam was to be constructed on local Nala, which meets Kag river. Subsequently, the Corporation of Marathwada Region corrected the record and it is submitted that by mistake Kag river was mentioned. The affidavit of Sarpanch of village Hiwari shows that the brook which was flowing towards Dhamangaon dam is involved in Hiwari dam and so atleast to some extent the water flowing towards Dhamangaon WP Nos. 3599 & 5264/2009 12 dam would be stopped by Hiwari dam. Considering the catchment area, it can be said that from other brooks, which can be seen in the map, the water will be coming towards Dhamangaon dam and if there is overflow of water at Hiwari dam, that water also will go towards Dhamangaon dam. 13. At the time of arguments, some photographs in respect of the work going on were produced for the petitioners. It was submitted that around 90% work of the dam is completed. In one photograph the Court would see some water accumulated at the dam. The record of even Buldhana Office shows that atleast on three occasions, there was overflow of the water at Dhamangaon Bade dam. In any case, the Courts are expected to ordinarily accept expert opinion. The Courts are also expected to presume that the action of the State, the policy of the State, are in interest of public at large. In view of the aforesaid circumstances, it needs to be presumed that the State has considered the rival interests and the project is undertaken in the interest of public at large. In view of these circumstances, even when it can be inferred that some water flowing towards Dhamangaon Bade dam would be stopped by Hiwari dam, the relief as prayed cannot be granted. WP Nos. 3599 & 5264/2009 13 14. The advocate of petitioners relied on a circular of Irrigation department dated 19.1.1973. This circular is to the effect that the capacity of percolation tank to be constructed in catchment area of minor irrigation tank should not exceed 20% of the capacity of minor project. It is already observed that the Corporation created for Marathwada Region is utilizing the water allotted to its share. In view of these circumstances and as Dhamangaon dam comes under the jurisdiction of Vidharbha Region, this circular cannot come in the way of Hiwari Project. Attention of this Court was drawn to the letter subsequently issued by Nashik Office of Water Resources. In this letter the office has informed that the certificate regarding availability of water for Hiwari Project was given as no information was given with regard to Dhamangaon Project by Corporation created for Marathwada Region. In view of the stand of the State and the submissions made that actions are contemplated against the officers who have created the confusion, this record also cannot be given much importance. 15. Some argument was advanced to challenge the procedure followed by the State for acquisition of land of agriculturists. The project shows that only some agricultural land will be required to be acquired and the project does not require the land which is used WP Nos. 3599 & 5264/2009 14 for residential purpose. The project is in larger interest. There is record to show that on 11.5.2009 notice for acquisition of land was sent, but the petitioners from the second proceedings refused to accept the notice. There is record to show that urgency clause, Section 17 of the Land Acquisition Act, was used by respondents on 15.10.2009 and the land required for the project came to be taken in possession. In view of the aforesaid record, this Court holds that the circumstances and the requirements were such that it was necessary to use the urgency clause. So on this ground also the project cannot be stopped. 16. One case reported as AIR 1998 SC 2505 [Om Prakash and another, etc. Vs. State of Uttar Pradesh and others] was cited. In this case while discussing the provisions of section 17 of the Land Acquisition Act, the Apex Court has observed that subjective satisfaction of the State Government is necessary to invoke urgency clause. The facts and circumstances of each and every case are different and the relevant facts of this case are already discussed. In the case cited for petitioners, the Apex Court came to the conclusion that there was no relevant material for subjective satisfaction. In a case reported as AIR 1980 SC 319 [ The State of Punjab and another Vs. Gurdial Singh and others ], the Apex WP Nos. 3599 & 5264/2009 15 Court has observed that real urgency must exist for use of section 17. In a case reported as 2011 (3) ALL MR 920 (S.C.) [ Sri Radhy Sham (Dead) through L.Rs. & Ors. Vs. State of U.P. & Ors. ], criteria and guidelines are given for the use of section 17. There cannot be any dispute about the propositions made by the Apex Court. It is already observed that the project is in public interest as per the stand of State. In view of the nature of dispute and the parties involved, in such cases the projects needs to be completed as early as possible. Thus, there were grounds for using section 17 of the Land Acquisition Act. 17. In view of the record and the circumstances discussed above, this Court holds that it is not possible to interfere in the decision taken by the respondents for construction of Hiwari dam and so both the petitions stand dismissed. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/wp3599 & 5264