Bombay High Court

Hiralal Motilal Desarda vs The State Of Maharashtra Through ... on 22 December, 2016

Bench: A.S. Oka

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION

PUBLIC INTEREST LITIGATION NO.154 OF 2015

Hiralal Motilal Desarda. .. Petitioner

Vs
The State of Maharashtra and Others. .. Respondents
-

Hiralal Motilal Desarda, the Petitioner in person.
Shri A.B. Vagyani, Government Pleader along with Shri P.G.Sawant, AGP

and Ms. Tintina Hazaria, AGP for the Respondent Nos.1 to 7 and 9.
Shri A.A. Kumbhakoni, Senior Advocate appointed as Amicus Curiae.
Shri Shekhar Jagtap i/b M/s. J. Shekhar and Co for the Respondent

No.8.
Shri G.S. Godbole i/b S.K. Legal Associates for the Respondent No.10.
-

CORAM : A.S. OKA & A.A.SAYED, JJ

DATE ON WHICH SUBMISSIONS WERE HEARD : 27TH OCTOBER 2016

DATE ON WHICH ORDER IS PRONOUNCED : 22ND DECEMBER 2016

ORDER ( PER A.S. OKA, J )

1. The submissions were heard in the afternoon on 27 th

October 2016 which was the last working day before Diwali Vacation.

We have perused the orders passed in this Public Interest Litigation

from time to time. Today, the matter was listed for two purposes. One

was for dealing with the challenge to the order dated 28 th January 2016

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passed by the Chief Secretary of the State of Maharashtra. The second

was to consider certain issues raised by the Petitioner appearing in

person.

2. Essentially, this PIL was filed for inviting attention of the

Court to the decision of the State Government of releasing water from

Gangapur Dam Complex in the river Godavari for the purposes of

Kumbhmela which was held in the year 2015. The contention raised in

the Petition was that the said action was completely illegal.

3. The Petitioner is a Professor of Economics who is associated

with Gokhale Institute of Politics and Economics at Pune and is involved

in several social projects. The Petitioner has been activist who has

raised various issues concerning environment and water management.

He has been espousing the cause of drought-prone areas in the State of

Maharashtra for the last several years.

4. The first effective order which is passed in this Petition is of

14th September 2015. The State Government was directed to revisit the

entire issue of diversion of water for shahi-snan(holy baths) during

Kumbhmela . In the order dated 22nd September 2015, this Court noted

shocking state of affairs that for washing away the dirt created in the

river by holy baths during the Kumbhmela, a substantial quantity of

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water was to be released from Gangapur Dam. It is under this order

that this Court directed the Chief Secretary of the State of Maharashtra

to inquire into the legality and validity of the decision taken to release

the water from Gangapur Dam Complex only for the purposes of

facilitating Shahi snan. The Chief Secretary of the State of

Maharashtra was directed to examine the legality of the decision taken

by the Collector and other officers for releasing the water for Shahi

snan. He was directed to examine whether the decision was contrary to

the existing policy and the Government Resolution dated 7 th September

2015 in light of the severe drought conditions. We may note here that

the Government Resolution dated 7th September 2015 is to the effect

that considering the current situation, storage of water in all areas shall

be preserved and top priority should be given to its use as a drinking

water. The Chief Secretary of the State of Maharashtra passed an order

dated 28th January 2016 holding that the action of release of water for

Kumbhmela was lawful and was not contrary to the policy of the State

Government.

5. It is to be noted here that by an order dated 22 nd September

2015, the State Government was restrained from releasing the water

from Gangapur Dam Complex for the purposes of facilitating Shahi

snan and holy bath in Kumbhmela without seeking leave of the Court.

On 22nd December 2015, this Court appointed Shri A.A.Kumbhakoni,

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Senior Advocate, as Amicus Curiae. By an order dated 18 th January

2016, this Court passed a specific order directing the State Government

to ensure that no further water is released from Gangapur Dam

Complex for the religious purposes or for religious festivals without

seeking leave of this Court. Under the order dated 18 th January 2016, a

direction was issued to the State Government to make a statement

regarding the outer limit within which the exercise of framing Rules

under the Maharashtra Water Resources Regulatory Authority Act, 2005

(for short "MWRRA Act") will be completed. The order dated 30 th

March 2016 directs the State Government to prepare a framework of a

policy for resolving the water crisis in the State. On 12 th April 2016,

further order was passed by a Division Bench of this Court observing

that the State Government has to address itself to the problem of water

scarcity. Thereafter, there were certain orders regarding release of

water with which we are not concerned. There were certain directions

issued by this Court for dealing with the situation arising at a relevant

time.

6. Firstly, we deal with the issue of legality and validity of the

order dated 28th January 2016 passed by the Chief Secretary of the

State of Maharashtra.

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7. The learned senior counsel Shri A.A. Kumbhakoni, who is

appointed as Amicus Curiae, has invited our attention to the order

dated 28th January 2016 passed by the Chief Secretary of the State

Government as per the directions issued on 14 th October 2015. He has

pointed out that the decision taken by the Chief Secretary which is

specifically impugned by amending the Petition is completely contrary

to the Government decision dated 7th September 2015 as well as the

State Government's Water Policy. He relied upon the judgment and

order dated 23rd September 2016 passed by a Division Bench of this

Court in PIL No.173 of 2013 and other connected matters. He invited

our attention to the finding recorded in Paragraph 188 of the said

judgment and order which holds that if sufficient water cannot be

allocated to the usages in higher categories (a) to (d) in Clause 4.0 of

the Maharashtra State Water Policy, 2003, there cannot be any

allocation of water for Kumbhmela and other religious purposes. He

urged that by no stretch of imagination, the release of water for

Kumbhmela can fall in category (a) of Clause 4.0 of the Maharashtra

State Water Policy, 2003. He submitted that apart from the fact that the

interpretation put to Clause (a) is completely erroneous, the impugned

order of the Chief Secretary is contrary to the judgment and order

passed by a Division Bench of this Court in Public Interest Litigation

No.173 of 2013 and other connected matters. The learned Government

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Pleader supported the impugned order of the Chief Secretary of the

State of Maharashtra.

8. We have carefully considered the submissions. A Division

Bench of this Court in the aforesaid judgment in PIL No.173 of 2013

and other connected matters had an occasion to consider all the

relevant laws regarding regulation of water supply in the State. In the

said judgment, in Paragraph 188, the Division Bench has referred to

Clause 4.0 of the Maharashtra State Water Policy, 2003. Clause 4.0 of

the Maharashtra State Water Policy, 2003 reads thus:

"4.0 Priority of Water Usage-

Water resources shall be allocated in accordance with the following general principles:

(a) Domestic use for drinking, cooling, hygiene and

sanitation needs including livestock;

(b) Industrial, commercial use and agro-based industrial use;

                       (c)         Agriculture and hydropower;

                       (d)         Environment and recreation uses;

                       (e)     All other uses."

9. In Paragraphs 190 and 191, the Division Bench proceeded

to observe thus:

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"190. At highest, the use of water for Kumbhmela and for other religious purposes will be covered by the last category "e". Therefore,

according to the Water Policy of the State Government, if sufficient water cannot be

allocated for usages in categories (a) to (d) in that order of preference, there cannot be any allocation of water for Kumbhmela and other religious purposes. In the National Water Policy of 2012, in Paragraph 1.2, it is

noted that large parts of India have already become water stressed as the issues related to water governance have not been addressed adequately. It is noted in the said policy that the

mismanagement of water resources has led to a critical situation in many parts of the country.

191. Needless to add that in case of scarcity or hydrological drought, in view of Clause (c) of

Section 11 of the said Act of 2005, the water cannot be released from the reservoirs by the State for religious ceremonies or religious objects without the Regulatory Authority

deciding the issue of priority of equitable distribution of water. Therefore, in case of

scarcity or hydrological drought, the State is not entitled to release water from the reservoirs for such purposes without adjudication being made by the Regulatory

Authority under Clause (c) of Section 11 of the said Act of 2005."

(emphasis added)

10. The Division Bench has categorically held that if sufficient

water cannot be allocated for usages in Categories (a) to (d) in that

order of preference, there cannot be any allocation in those categories

of water for Kumbhmela or for other religious purposes. Further, it is

held that in case of scarcity or hydrological drought, the State is not

entitled to release water from the reservoirs in the State for such

religious purposes without an adjudication being made by the

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Regulatory Authority under Clause (c) of Section 11 of the said Act of

2005.

11. We have carefully perused the findings recorded by the

Chief Secretary. In Paragraph 15 of the impugned order, the Chief

Secretary has referred to the categories (a) to (e) which are quoted

above. In Paragraph 16, he observed that 60 to 70 lakhs pilgrims were

likely to participate in Shahi snan in the Kumbh-mela on 29 th August

2015, 13th September 2015 and 18th September 2015. Therefore, 4.50

TMC water was proposed to be released from Gangapur Dam. He

observed that if the water was not released, there might have been a

possibility of epidemic and serious hygiene problems. He has,

therefore, come to a conclusion that the case was governed by category

(a). In our view, even assuming that there was a possibility of law and

order problem being created if sufficient water was not released for the

Kumbh-mela, by no stretch of imagination, the release of water to

prevent such law and order situation was covered by any of the

categories (a) to (d) of clause 4.0 of the State Water Policy. Though it is

claimed that the water actually released for Kumbhmela for Shahi snan

(holy bath) was less than what was planned, the fact remains that in

the year 2015-2016 when there was a hydrological drought, the water

was released by the State Government for the benefit of Shahi snan in

breach of its own water policy. We are not on the issue of release of

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water for drinking purposes for the benefit of pilgrims as it covered by

category (a). By no stretch of imagination, the release of water for

Shahi snan will be covered by Category (a). Therefore, release of water

for Shahi snan was completely illegal. The State was bound by its own

water policy and the State could not have acted contrary to its own

binding policy. We are not able to accept the strong justification tried

to be offered by the learned Government Pleader for supporting the

impugned order.

12. Therefore, for the reasons which we have set out above, the

order passed by the Chief Secretary on 28th January 2016 will have to

be set aside and it will have to be held that the release of water from

Gangapur Dam Complex only to facilitate Shahi snan (holy bath) was

contrary to the policy of the State Government and therefore, the same

is illegal.

13. Now the question is what are the other issues which need

to be gone into. As regards the implementation of the provisions of the

MWRRA Act and the Maharashtra Management of Irrigation Systems

by Farmers Act, 2005 very detailed directions have been already issued

in PIL No.173 of 2013 and other connected matters. Directions have

been issued for preparation of a Draft Integrated Water Plan. Directions

have been issued to formulate a State Water Resources Plan. This Court

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has held that the water flowing through rivers and stored in reservoirs

vests in the State.

14. There is an affidavit filed by the Petitioner which is dated

1st May 2016 raising several issues by the Petitioner appearing in

person. There is a note submitted by the learned senior counsel

appointed as the Amicus Curiae on Jalyukta Shivar Scheme and the so

called River-Rejuvenation Scheme adopted by the State Government.

Paragraphs 1 to 10 of the said note read thus:-

"1.

The geographical area of State of Maharashtra is about 308 Lakh hectares. The State has five major river basins and 25 sub-basins. As per the

classification of Ground Water Survey and Development Agency (GSDA) there are 1505 mega watersheds which in turn are divided into micro-watersheds. In all there are 60000 micro-

watersheds of which 44000 are located in cultivated area.

2. The long-term average annual precipitation of the state is 1150 milimeter mm). Of course there is a vast temporal and spatial variation

ranging from 400-4000 mm. Nearly 2/3rd of the State's Geographical area is under cultivation. About 51 Lakh hectares land is officially under the jurisdiction of forest department, albeit there is no worthwhile tree cover on more than

50% of this area. In fact, out of total 35 districts in State of Maharashtra, 20 districts have tree cover of less 5%. Notably the good density forest area for State as a whole is not more than 2%. For ecological stability and conservation of land and water resources, at least 1/3rd of the geographical area has to be under the forest cover as per the internationally recognized density tree and vegetation cover. As a matter of fact, this is the root-cause of the water scarcity and hydrological water famine that Maharashtra is facing in the recent years.

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Unless and until, we clearly grasp this fact, we will not be able to address various issues relating to scarcity of water in the State and

have a holistic view about the same.

3. As referred earlier, the water endowment of Maharashtra is very sizable. The State receives through the precipitation 380 billion cubic meter (BCM) of water annually which is adequate to meet all the needs of the present

population and ensure food, nutrition security and well being including that of humans. Hence, the State Government's effort to blame the water scarcity on rainfall deficit or truant

played by monsoon is factually incorrect. It needs to be grasped that even if the

precipitation is as low as 300 mm, which even this relatively very deficient rainfall year has provided to the majority of the 355 talukas in

Maharashtra. This means at 300 mm there is as much as 3 million liter (30,00,000 ltrs.) water per hectare; and taking into account the average density of population in rural areas there are 2

or 3 persons per hectare. In short, there is at every place at least a million liter water per

person and 3 million ltr. water per hectare everywhere across the length and breadth of the State of Maharashtra. As such, the present water scarcity cannot be blamed (as the State

Government is trying to make believe) on niggardliness of the nature but is a failure of water resources management, policies and programs perpetrated by the successive Governments which is solely responsible for 'the

policy-induced water scarcity' that is causing havoc to the life of millions of people and which is manifested in the tragic farmer suicides.

4. It need not be emphasized that water is a renewable natural resource in as much as, after the rainfall, the run-off water recharges the aquifer. This basic hydrological principle is not known to the common people, particularly the agriculturists, because in our country there is a lack of water literacy. This has been the main cause for ecological imbalance that has brought

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to our door steps the situation in which we find ourselves today. Unfortunately, the State Government which is supposed to be the

custodian of these principles and hydrological cycle, in recent times has taken steps to destroy

rather than preserve, if not enhance, the ecological balance by taking such steps which are more in the nature of knee-jerk reactions rather than long term policies.

5. Indisputably, 'drought' is a part of the meteorological cycle but when it leads to 'hydrological famine' it is man-made and more directly caused by the erroneous water resource

management policies and water project planning process. By now, it is well known in

the public domain that the State of Maharashtra has 35% of the large dams of the country. The State has sunk nearly one Lakh Crore rupees in

building irrigation and other water-use projects during the past 50 years. Interestingly, alleged multi-crore scam is being currently investigated by the Government agencies in the State. This

has led to very inefficient systems of water use but it has been justified in the name of

providing drinking areas and industries.

Undeniably, this is the harsh reality adversely affecting the rural and urban poor population in Maharashtra.

6. Scientifically, to prevent erosion of the soil caused due to faster run-off of the rain water, a watershed is required to be treated starting with ridgeline. All over the world in such cases

treatment starts from ridges by putting in place trenches to prevent run-off of the rain water from carrying with it huge quantity of soil. Thereafter steps are required to be taken down streams in the direction in which such run-off water flows not only to prevent erosion of the soil but also squander rain water.

7. The present state government has initiated a program called as Jalyukt Shivar which is designed to be executed in 5000 villages each year. After the first year in 2014-2015 the

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Government has chosen the next batch of the nearly 6000 villages in the subsequent year. This brief note tries to underline the need for

appropriate intervention by this Hon. Court and direct the State to appropriate steps in the light

of the various aspects submitted hereunder so that said Scheme is implemented in a scientific and holistic manner.

8. The time-tested method of designing and

implementing this program is known as a "ridge-to-valley approach". Instead of that, the present Government is implementing the scheme in a haphazard manner without having

proper Detailed Project Reports (DPR's) at the micro-watersheds levels or at a river valley basin

level or a master plan as such. Indeed, the scattered and single line activities are perpetuated without any integration in which

the very purpose of undertaking the soil and water conservation on sound hydrological principles in given a go-by.

9. The said Scheme is being implemented by taking steps in down streams FIRST, which

ought to have been at the last. What is being done inter-alia is dredging the river beds and rivulets, that too in a most unscientific manner. To add to it, Cement Nala Bunds (CNBs) are

being put across such rivers/rivulets as an attempt to arrest the run-off (of rain water) by creating artificial CNBs are being constructed in order to inflate the expenditure that goes into the pockets of the contractors who receive more

kick-backs. Even in this regard instead of adopting a holistic approach, implementation is 'contract driven."

10. This Petitioner who has been studying these issues for the past 40 years and has been over the years associated with the policy planning bodies of the State and Union Government undertook an intensive tour of 16 drought-

affected districts of Maharashtra during the month of February & March, 2016. To his utter dismay he found that in the name of Jalyukt

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Shivar and another scheme launched (with a great political fanfare and patronage) known as "River-Rejuvenation program" is being craftily

pushed in the name of drought-proofing and providing water to the people who are in dire

need of great relief. Even these works are undertaken in a scattered manner committing breach of geo-hydraulic principles instead of applying innovative ideas in that regard. As the matter of the fact, it is leading to total ecological

destruction and will result in a destruction of rivarian ecosystems and natural watersheds which are evolved through the ages and this kind of invasion by heavy machinery will cause

most phenomenal destruction to the integrity and harmony of soil, water, biomass and

biodiversity resources. Surprisingly, there is no 'perspective plan' prepared or contemplated for execution of such work. Hence, there is urgent

need to put a halt to this ruthless ecological and ethical damage which is being inflicted in the name of finding an answer to the recurrent drought."

15. It is contended by the Petitioner that on an average, 100

mm of rainfall generates 1 million litre water per Hectare which is

enough to sustain the agriculture in the State. It is pointed out that

both Jalyukta Shivar and River-Rejuvenation Schemes are not adopted

by following a systematic scientific and planned approach. It is pointed

out by the Petitioner that the soil profile retains water in the form of

moisture and the rest of it becomes ground water. It is pointed out that

sub-soil contains aquifer which is supposed to retain water and in turn

recharge the ground water table. It is pointed out that even the soil is

also a living system which is fertile on an average to an extent of 9

inches to 1 feet deep.

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16. In the affidavit of the Petitioner, it is pointed out that the

Government has not prepared a master plan for creating a drought free

State by providing a planned budgetary allocations. It is pointed out

that the funds are provided in ad hoc manner. It is urged that the State

must manage the much needed micro-watershed development

programme. It consists the treatment being given to the lands so that

the water instead of gushing down with a speed, seeps through the soil

and enhances the soil moisture. Moreover, it holds and stores water in

the sub-soil which is used as ground water to meet various needs during

the dry spells in monsoon. It is contended that if the water is made to

walk instead of running down, it does not erode the top soil.

17. The specific case of the Petitioner is that Jalyukta Shivar

Scheme in being implemented in most unscientific manner. The

Petitioner is relying upon the note marked as Exhibit-"AR-T1" and a

document styled as "A policy planning approach to Water Resource

Management in Maharashtra" which is marked as Exhibit-"AR-III A". The

specific stand of the Petitioner is that the arbitrary implementation of

Jalyukta Shivar Scheme is leading to destruction. In short, the

contention of the Petitioner is that the scheme of Jalayukta Shivar is

being implemented by the State Government without adopting a

systematic and scientific approach.

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18. As far as Writ Court is concerned, it has no expertise in the

matter of water conservation and water management. Nevertheless, the

issues raised by the Petitioner regarding implementation of Jalyukta

Shivar Scheme and the River-Rejuvenation Scheme need to be looked

into by the State Government. Appropriate Authority of the State

Government will have to look into the said contentions. Ultimate aim

should be to create a drought free State considering the fact that the

sufficient natural resources are available in the State.

19. The State may consider of appointing a Committee of

Experts for going into the contentions raised by the Petitioner. This is

necessary as the schemes are being implemented though both the

categories of water plans contemplated by MWRRA Act are not in

existence. There is no overall and comprehensive policy decision taken

by the State before starting implementation of the said two schemes. If

the Petitioner is right, the consequences of implementing the schemes in

an unscientific manner may be a drastic and devastating. The State may

consider of referring the issue for consideration of the Regulatory

Authority under the MWRRA Act which is a body of experts.

20. We may record here that the learned Amicus Curiae, the

learned counsel appearing for the Regulatory Authority and the learned

Government Pleader have assisted the Court as officers of the Court.

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     21.               Hence, we pass the following order:-




                                                                                      
                                      ORDER : 




                                                              
                      (a)      The impugned order dated 28th January 2016 passed

by the Chief Secretary of the State of Maharashtra is

hereby set aside and it is held that the action of

releasing water during Kumbhmela of 2015 for the

purposes of Snan or Shahi snan (holy baths) from

Gangapur Dam Complex in Godavari river was

completely illegal being contrary to the State Water

Policy of 2003;

(b) The State Government shall deal with the issues

raised by the Petitioner in the affidavit dated 1 st May

2016 and a brief note appended to the said affidavit.

The State Government shall consider of appointing a

Committee of Experts to look into the contentions

raised by the Petitioner. If the State Government

takes a decision to appoint a Committee of Experts,

needless to add that either the Petitioner should be a

part of the said Committee or that the Petitioner

should be given an opportunity by the said

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Committee to put forward his views. Appropriate

decision shall be taken by the State Government

either on formation of a Committee of Experts or for

reference to an existing body of experts on or before

31st January 2017;




                                             
      ( A.A.SAYED, J )
                              ig                                   ( A.S. OKA, J )