1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5100 OF 2010 1) Nandkumar @ Laxman Sahadu Borude, R/o-Pedgaon Road, Near Kukadi Colony, At Shrigonda, Tq-Shrigonda, Dist-Ahmednagar. 2) Nanasaheb Nathu Kale, R/o-Station Road, Shrigonda, Tq-Shrigonda, Dist-Ahmednagar. 3) Yusuf s/o Gulab Jakate, R/o-Station Road, Shrigonda, Tq-Shrigonda, Dist-Ahmednagar. 4) Dyandeo s/o Damodhar Lagad, R/o-Shivajinagar, Shrigonda, Tq-Shrigonda, Dist-Ahmednagar. 5) Daulat s/o Rambhau Dake, R/o-Shivajinagar, Shrigonda, Tq-Shrigonda, Dist-Ahmednagar. ...PETITIONERS. VERSUS 1) The State of Maharashtra, Through its Secretary, Department of Urban Development, Mantralaya, Mumbai-32, 2) Commissioner/ Director, Municipal Administration, Directorate of Municipal Administration, Government Transport Service Building, 3rd Floor, Sir Poachkhanwala Marg, Worli, Mumbai-30, 2 3) The District Collector, Ahmednagar, Dist-Ahmednagar, 4) Municipal Council Shrigonda, Through its Chief Officer Shrigonda, Tq-Shrigonda, Dist-Ahmednagar. ...RESPONDENTS. ... Shri. S.D. Kulkarni Advocate for Petitioners. Shri. S.D. Kaldate, A.G.P. for Respondent Nos. 1 to 3. Shri. V.P. Latange, Advocate for Respondent No.4. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 25TH OCTOBER, 2010. PER COURT : 1. Heard learned counsel for the parties. 2. The Petitioners are raising objection to the construction of water storage tank in Shrigonda township at a new site by the Municipal Council, on the ground that a water storage tank is constructed on the present site which is 3.5 meter lower in height than the earlier site, 3 where the Municipal Council had its earlier water storage tank. The earlier water storage tank was situated in Gut No.2188. The present site is in Gut No.2188/2/5. 3. Shri. Kulkarni, learned counsel appearing for the Petitioners submitted that on the earlier site, construction of new water storage tank was proposed and that was inaugurated by the Hon'ble Minister, but later on the Municipal Council changed the site, which is not in the interest of the residents of Shrigonda township. The water would not be supplied with equal force to the residents, in case the water storage tank is constructed at a new place, which would be detrimental to the interest of the residents of Shrigonda township. The counsel further submits that the Petitioners had obtained an opinion of Mr. V.G. Dhepe, B.E. (Civil), who is retired Engineer and according to the said written opinion dated 11th May, 2010, construction of the water storage tank at the present site is not in the 4 interest of the public at large. The counsel further submits that action to change the site is full of mala-fides. The Collector failed in his duties to suspend/cancel the resolution passed by the Municipal Council on 30th June 2009, under which the Municipal Council decided to construct present water storage tank. 4. This Writ Petition came to be filed on 7th June, 2010. This Court issued notices on 22nd June, 2010. Affidavit in reply was filed by Tahsildar and Chief Officer, Municipal Council, Shrigonda. Affidavit in rejoinder was filed by the Petitioner. 5. Shri. Latange, learned counsel appearing for the Municipal Council, who is instructed by Shri. D.V. Suranje, Municipal Civil Engineer, submits, that near C.E.O. Quarters of Shrigonda township, already water storage tank, having four Lakh litres water storage capacity, exists. The Municipal Council adopted a resolution passed by 5 majority on 30th June, 2009 due to the fact that the subject site i.e. Gut No.2188, where the earlier water storage tank was situated, was to get affected by a State Highway, which was passing through the area. The Municipal Council obtained technical sanction from Maharashtra Jeevan Pradhikaran. In his opinion, the Executive Engineer of Maharashtra Jeevan Pradhikaran opined that the present site where water storage tank is being constructed, is lower in its height by 3.25 meters compared to the earlier site, but the water supply to the residents would be facilitated with 7 to 8 meters "effective head". The counsel submits that the technical opinion supports the resolution passed by the Municipal Council. The Engineers of Shrigonda Municipal Council too, had verified the site and were satisfied that the water supply could be effectively managed with proper force to the residents of Shrigonda township through the water storage tank, which is in the process of construction at the site in question. The counsel submits that as on today the 6 work is substantially progressed. The contractor has been paid Rs.10,00000/- (Rupees Ten Lakh only) and if at this stage the construction is stalled or the resolution passed by the Municipal Council is stayed, then irreparable loss and damage would be caused to the Municipal Council and same would not be in the interest of the residents of Shrigonda township. The counsel submits that the Petition itself is politically motivated, as one of the Petitioner was ex- president of Shrigonda Municipal Council. The counsel submits that at present though earlier water tank situated in Gut No.2188 is demolished, the residents of Shrigonda township are supplied water through the water storage tank, which is situated near the C.E.O. Quarters. 6. Shri. Kaldate, learned A.G.P. submits that affidavit in reply is filed by the Tahsildar, who narrated the circumstances in detail. The deponent has supported the move to construct the water storage tank at new site, and stated that in 7 case the on-going project backed by 12th Finance Commission Report under a Scheme, is stalled, then the funds would also get lapsed, which would be against public interest. The deponent had referred to the expert's report from the Maharashtra Jeevan Pradhikaran, which is highly skilled and expert body in the field. Therefore, the A.G.P. submitted that no interference is warranted in exercise of extra ordinary writ jurisdiction of this Court, at this stage. 7. We have considered the record placed before us, the affidavits filed and the submissions advanced by the learned counsel appearing for the parties. We find that the resolution was passed by the Municipal Council on 30th June, 2009 by majority, to shift the site for construction of new water storage tank under the Central Scheme. A water storage tank having 5,00000 litres capacity was decided to be constructed. It seems that earlier same site where the old water storage tank, which was demolished, 8 was selected for construction of new water storage tank. But later on the Municipal Council changed the location. The new site where the water storage tank is to be constructed, is in Gut No.2188/2/5. The said plot was gifted by one Shri. Arif Jakate in favour of the Municipal Council. One of the strong reasons for shifting the site, according to the Municipal Council, is that due to the development plan, Highway is passing through the area which is very close to the water tank. We find that the Municipal Council had obtained the expert's opinion from Maharashtra Jeevan Pradhikaran. The resolution was passed in the month of June, 2009. The construction of water storage tank had already started. We were shown certain photographs in respect of the construction of water storage tank at the new site. The counsel appearing for Municipal Council submits that considerable amount of Rs.10,00000/- (Rupees Ten Lakh) is already paid to the contractor and under time bound schedule, water storage tank is to be constructed. As a responsible public/local 9 authority, the Municipal Council seems to be convinced that there would not be any problem for the residents of Shrigonda township to get water with adequate force, through this water storage tank. The Collector had accorded permission on certain conditions. 8. The learned counsel for the Petitioners referred to a reported Judgment in the case of Sanjay Govind Sapkal and others vs. Collector of Dhule and others, 2003(3) Bom. C.R. Page 550. We have perused the same. 9. Considering the facts and circumstances of this case, we find that the resolution passed by the Municipal Council, Shrigonda in respect of construction of water storage tank at a new site, does not call for interference by this Court in exercise of our extra ordinary writ jurisdiction. 10. We expect that the concerned authorities of Municipal Council, more particularly the Chief 10 Officer, Municipal Engineers, would take abundant care and caution in respect of supply of water through the new water storage tank with adequate force to the residents of Shrigonda township. The Petition stands disposed of. [K.K. TATED, J.] [NARESH H. PATIL, J.] asb/OCT10/wp5100.10