IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 6745 of 2007 GANPAT SINGH & ORS. V/S STATE & ORS. Mr. MS SINGHVI, for the appellant / petitioner Mr. KL THAKUR A.A.G. & Mr. AMIT DAVE, for the respondent Date of Order : 7.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MOHAMMAD RAFIQ,J. ORDER ----- This is a public interest litigation petition filed by the seven petitioners, against the Irrigation and P.H.E.D. authorities of the State. The matter agitated by the petitioners is, that the Khari Dam was constructed in the year 1953 on the river Khari, and after construction of this dam, 11000 acres of land comprised in 32 villages and 7 hamlets was declared as command area. It is alleged that the dam is having the filling capacity of 1176 Million Cubic Feet (MCFT) at the FTL height of 21 feet. With this it is alleged, that in the last 15 years, on account of construction of large number of anicuts in the water course of the dam, the dam has not been filled up to its capacity except in the year 1992, 1994 and 1997. The petitioners have purported to produce a list showing the total collection of water in the dam gauge wise as Annexure-2, so also a list of anicuts as Schedule-A. With this background it is alleged, that on account of scanty rainfall in the catchment area, and construction of anicuts, there is a serious problem of scarcity of water in the dam, resulting in the area under irrigation, and also obviously availability of drinking water. It is alleged that notwithstanding this, the State Government has prepared a scheme for construction of yet another anicut and a feeder, from Khari River, for taking water to Chansen and Katar tanks of Tehsil Mandal. Technical Report to that effect, prepared by respondent no. 5 is produced as Annexure-3. According to the petitioner the matter was forwarded to the State Government, and the State Government has granted technical sanction for carrying out the work for construction of a feeder channel and constructing another anicut. This is produced as Annexure-4. It is alleged, that pursuant to this, tender notice was issued, and tenders have also been finalised, though work order for construction has not been issued. It is alleged that on coming to know of this a meeting was held under chairmanship of petitioner no. 1, and accordingly representation was made to the Chief Minister. However, if the anicut is constructed, and feeder is allowed to be constructed, it will obstruct the flow of water in the Khari Dam, as feeder canal will take water to Chansen and Katar tanks. The adverse effect of construction of anicut was highlighted, and it is contended, that if the proposed 2 construction goes on, the substantial quantity of water which is to flow to Khari Dam will be divided, and virtually the agriculturists depending upon the cultivation of their fields will be deprived of water in perpetuity, and would adversely affect the livelihood of about 3000 families, apart from disturbing the ecological balance. Interalia with this, it is prayed, that the sanction letter be quashed, and consequential actions/orders taken pursuant thereto be also quashed. Then, finalisation of tenders is also prayed to be quashed, a restrain is sought against the respondents from constructing the feeder for providing water to Chansen and Katar tank from Khari River, and in case such construction takes place, it may be ordered to be removed forthwith. It is also prayed, that the respondents be directed to put gates on the anicuts already constructed in the water course of river Khari, as detailed in Schedule-A. This petition was filed on 9.10.2007, and vide order dt. 10.10.2007, notices were ordered to be issued to the respondents. Thereafter a reply was filed. Then, a rejoinder had also been filed. Then, some persons moved application for being impleaded as party respondent, which was considered, and was allowed vide order dt. 1.11.2007. Then, the counsel for the State prayed that in the rejoinder new facts have been pleaded which need reply, and therefore, sought time. In the reply filed on behalf of the respondents 3 certain preliminary objections have been raised, contending that approximately 113 villages are situated in catchment area also, and in all these areas the requirement of drinking water is being met with by the water harvesting structures, made in these areas, may be by anicut or dam. Then, it was also contended that it is wrong to contend that anicut is proposed to be constructed, rather anicut already exists, having been constructed long back, and even the feeder was already there, which is simply to be restored. It is pleaded that the petition is out come of political rivalry, and is intended to cause hindrance in wider public interest magnitude, to provide drinking facilities of nearby villages, situated near Chansen and Katar Talab, which are approximately 33 villages, as the water is being supplied there by tankers. It is also contended, that the ground water level is full of fluoride component, and is causing so many bodily infirmities. Therefore, rather the petitioner should have come forward with positive solution for the problem. It was alleged, that tanks in Chansen and Katar were already constructed, but since they do not have sufficient catchment area to feed, there is great scarcity of drinking water, as well as agricultural water, and there had been a long time demand raised for the construction of feeder. Earlier also some work on this feeder had been executed during the past famine year. Now it is proposed to construct a gate, for regulating water from submergence of this anicut to the 4 feeder. It is also pleaded, that this feeder is proposed to be excavated in the length of 1785 meter, and ultimately this feeder will have connectivity to the Chansen Talab, where from, because of natural slop the water will be taken upto Katar Talab, which will carry only 8 MCFT water to the pre-existing Chansen Talab and Katar Talab, which are having the FTL of 20 MCFT. It is pleaded that 8 MCFT water will be coming from Chansen anicut, and rest of 12 MCFT water, the tanks will be getting from their own catchment area, and the moment these tanks are filled upto FTL, the water from these Talabs will be again sent to Khari Dam. It is also pleaded, that the area being the dark zone area, due to over exploitation of ground water, and because of increase of demand of water for the domestic, industrial and irrigation purposes, the water level is going down during the past few years in the nearby areas, therefore, the matter was considered at high level expert team constituted by technical personnel, and after deep consideration on the subject, the technical personnel expert committee reported, that water harvesting structures like small anicut and sub surface barriers, besides other structures be constructed, which will help in recharging underground water, without adversely affecting any existing irrigation system, and the State Government, after giving thoughtful consideration over the technical report of the experts, has introduced the scheme. Other technical aspects of the anicut have also been highlighted. Then, it is also 5 pleaded that FTL capacity of Khari dam is 1376 MCFT, and not 1176, as pleaded by the petitioners. It is also pleaded that during the period from 1961 to 2007 the dam has been filled to full tank level at least upto 13 times, and in between 50-75% sixteen times and so on. It is pleaded that the anicuts are constructed usually upto the height of 2 meters, they used to absorb the sand coming with the down stream flow, and avoid damage being caused to the dam. It is also pleaded that in D.B. Civil Special Appeal No. 242/2005 Suwa Lal Vs. State of Rajasthan decided on 19.6.2006, this Court has upheld the construction of anicuts. It is pleaded that the construction of anicut does not have the effect of reducing the capacity of dam. Then, it is pleaded, that under the scheme, the feeder channel is sought to be made workable, as earlier also excavation work had been carried out over the same feeder, so it is not altogether new feeder, sought to be opened or constructed rather now the water resources department has also adopted a policy decision to get the work done through the Irrigation Department, and as such the inviting tender and adopting process cannot be faulted with. It is also pleaded that in pursuance of the tender the contractor has completed 50% of the work, i.e. the work amounting to Rs. 21 lacks approximately has been completed, as against the sanctioned work of bit less than 42 lacs. A rejoinder has been filed by the petitioners, 6 contending that it is wrong to contend, that only 8 MCFT water shall be taken, rather the feeder is constructed for carrying 4.5 MCFT per day. It is pleaded that there is no scarcity of drinking water in Chansen and Katar tank areas as in the year 2005 the water was supplied through tankers to various villages in Sub Division Gulabpura, however, no water was supplied through tankers to villages of Chansen and Katar Talab, and in this regard orders have been produced as Annexure-7, and the list of villages has been produced as Annexure-8. Then, other communications have also been produced. It was also pleaded that the Government has framed a water supply scheme for Katar, providing for construction of two open wells, near Khari River, and supplying water from the wells to village Katar, and other nearby areas, copy of the scheme is produced as Annexure- 10. Likewise the scheme framed for other areas of village Kidimal has also been produced as Annexure-11. Thus, it is pleaded, that larger interest of people of command area of Khari dam cannot be ignored. The existence of water fluoride problem was also pleaded to be wrong. Then, it is pleaded that it is wrong to suggest that feeder is used for carrying only 8 MCFT water, rather it is misleading as Annexure-3 makes it clear, that as per the design calculation, the total discharge for one day works out to be 4.50 MCFT, rather the water through feeder will be continuously used. Then, it has not been clarified as to how, upon filling the two tanks, the water will be sent 7 back to Khari Dam. It is pleaded, that from Annexure-3 it is clear, that some excavation in the feeder work was executed during famine work, and from perusal of Annexure R/2, it is clear, that in 2004 only Rs. 1.20 lacks were sanctioned, as against this vide Annexure-3 it is proposed to spent Rs. 41 lacks. Thus, it is a new feeder, being constructed afresh, for the first time. Then, other pleadings taken in the reply were denied. Then, an additional reply has also been filed by the respondents, pleading that PHED has prepared some schemes, but those schemes are meant only for 12 villages, and still for remaining 21 villages proper arrangement for drinkable water is required to be made. Then, existence of fluoride in the water has been reiterated. Then, it was pleaded that the level of Chansen Talab is two feet below to Chansen anicut, and level of Katar Talab is further 3 feet below to level of Chansen Talab. Thus, the moment, the tank is filled upto FTL, and water flows by over flow, it will reach ultimately in Khari Dam, through Chansen Talab and Katar Talab. Then, it was pleaded that the water to be diverted through feeder would be only 1.5 MCFT in 24 hours, and so on. While the matter was heard on 19.11.2007, a question arose to the effect, that command area of Khari Dam has been declared, taking into account FTL capacity of 8 Khari Dam, while in majority number of years the tank did not touch the FTL, rather in number of years it did not even exceed the seal level. In such circumstances, how the water distribution is effected in the command area. To this a statement was made, to the effect, that a meeting of Water Distribution Committee comprised of Executive Engineer Water Resources, Member of Parliament, local M.L.A., Pradhan, Vikas Adhikari, Tehsildar, Officers of the PHED, villagers of the command area, and others, is convened, in the chairmanship of Collector, and in that committee it is decided that from time to time, the area to be irrigated from the available water, and particular level of water will be reserved for drinking purposes. With this a serious controversy was raised on the side of the petitioners, to the effect, that when during the period of shortage, even the entire command area of Khari dam is not irrigated, then how can the respondents be allowed to take water to other tank, to provide for irrigation, as such action obviously adversely affects the vested rights of the cultivators of the command land in Khari Dam. To this learned counsel for the State submitted, that drinking water is a serious problem in the villages, and it is the State's responsibility to provide drinking water, being basic amenity, but then he could not seriously justify carrying of the water for irrigation and for industrial purposes. 9 From a proper reading of the pleadings, what we find is, that the grievance of the petitioners is substantially against taking away the water to Chansen and Katar Talab for the purpose of irrigation, while a proper reading of the reply does show, that the whole thrust of the reply is, that the water is being taken for drinking purposes, to be supplied to the fluoride effected areas, and the areas where there is scarcity of drinking water, being in Chansen and Katar area. Of course in Annexure-3 it is mentioned, that the scheme is floated on account of scarcity of water for drinking and agriculture. Thus though mainly projecting the stand of requirement of drinking water, it is more than clear, that in that garb, the respondents are intending to draw water for irrigation, and industrial purposes as well. It also appears, that the respondents have projected in the reply, that the capacity of Chansen and Katar Talab is 20 MCFT, out of which it shall receive 12 MCFT from its catchment area, and only 8 MCFT will be drawn from this feeder, but then, in view of the technical design of the feeder, this fact was disputed by the petitioner by filing rejoinder, and then additional reply filed by the respondents does make it clear, that the respondents are not intending to draw only to the extent of 8 MCFT water in a season, as projected in the reply, by contending that Khari dam has the capacity of more than 1370 MCFT, out of which only 8 MCFT water is being taken. If the things were at that only, perhaps we would not have 10 felt inclined to interfere, but then, as the things have come up, the intentions of the respondents are clearly otherwise. Considering the overall fact situation as has emerged, and considering and taking into account the overall interest of the public, striking balance between the rival interests, and requirements of the cultivators of command area of Khari Dam, as well as the human and cattle population inhabitants of Chansen and Katar Talab area, for which the feeder is being constructed, we are of the view, that for the purpose of providing irrigation or industrial water to Chansen and Katar areas, the rights of the cultivators of the land, declared command land of Khari Dam, cannot be put to jeopardy. At the same time, simply because there may be some shortage of water in the Khari Dam, i.e. whether it does not reach FTL, or even if it fills at a much lower level, still the State cannot be prevented from discharging its basic responsibility of providing drinking water to Chansen and Katar area villages, where either there is serious drinking water scarcity, or where the water contains fluoride saturation, and/or fluoride related problems. In our view, this is the right balance, required to be maintained in the larger public interest. It may, however, be observed firstly that it is 11 not in dispute that anicut had already been constructed, and is not intended to be constructed anew, as pleaded in the writ petition. Likewise the prayer made in the writ petition for direction to install gates in the already constructed anicut, was never pressed during the course of arguments. Accordingly, the writ petition is partly allowed, and it is directed, that the respondents may go on with the construction of feeder, but then they are restrained from drawing any water from Khari river, for providing it to Chansen and Katar Talab, for any purpose, other than for providing water for drinking purposes, to Chansen and Katar area village human and cattle population. In other words, we clearly specify, that the respondents will not be entitled to draw water through this feeder, for providing water for irrigation and/or industrial purposes, until and unless all the cultivators of the command land of Khari feeder get their full share of water, proportionate to the Khari Dam reaching FTL of 21 Ft., on the basis of which, the area was declared as command area. If thereafter there is any surplus water, of course, the State is free to use it for the agricultural and industrial purposes also, but then, not otherwise. Parties are left to bear their own costs. ( MOHAMMAD RAFIQ ),J. ( N P GUPTA ),J. 12 /sushil/ 13