Eknath Harichandra Thvali And ... vs State Of Mah., Thr. Secretary ...
2021 Latest Caselaw 9871 Bom

J-WP-2652-19                                                                        1/13


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR.

                          WRIT PETITION NO. 2652 OF 2019


1.          Eknath Harichandra Thvali,
            Age 72 years, Occ.- Agriculturist.
            R/o. Sawarkhed, Tq./ Morshi,
            District Amravati.

2.          Sandeep Eknath Thvali,
            Age-42 years, Occ. Agriculturist,
            R/o. Sawarkhed, Tq. Morshi,
            District Amravati.                            ... PETITIONERS

            -versus-

1.          State of Maharashtra through its Secretary
            (Revenue Relief and Re-habilitation)
            Revenue and Forest Department, Mantralaya, Mumbai.

2.          State of Maharashtra,
            through its Secretary Water Resources Department,
            Mantralaya Main Building,
            3rd floor, Madam Cama Road, Mumbai.

3.          Divisional Commissioner,
            Amravati Division, Amravati.
            Tq. and District Amravati.

4.          Collector, Amravati.
            Tq. and District Amravati

5.          Zilla Parishad, Amravati.
            Through Chief Executive Officer,
            Amravati, Tq. and District Amravati.

6.          Executive Engineer,
            Minor Irrigation Department (Laghusinchan Vibhag)
            Zilla Parishad, Camp, Amravati,
            Tq. and District Amravati.                     ... RESPONDENTS


Shri P.S.Patil, Advocate for petitioners.
Smt. Sangita S.Jachak, Assistant Government Pleader for respondent Nos. 1 to 4.
Shri S.A.Mohta, Advocate for respondent Nos. 5 and 6.



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 J-WP-2652-19                                                                        2/13


CORAM : DIPANKAR DATTA, C.J. AND A. S. CHANDURKAR, J.

DATE ON WHICH THE ARGUMENTS WERE HEARD : 23.07.2021 DATE ON WHICH THE JUDGMENT IS PRONOUNCED : 28.07.2021

Judgment : (Per : A. S. Chandurkar, J.)

Rule. Heard finally with consent of learned counsel for the

parties.

The petitioners who are agriculturists have approached this Court

with a prayer that the respondent Nos.1 and 2-State Government as well as

respondent Nos.5 and 6-Zilla Parishad, Amravati be held jointly and

severally responsible to pay them compensation of an amount of

Rs.7,92,450/- on account of damage caused by water entering their

agricultural fields, the same having overflown from the percolation tank

constructed by the respondent Nos.5 and 6. It is the case of the petitioners

that the petitioner No.1 is the owner of field Survey No.232 while the

petitioner No.2 who is the son of petitioner No.1 is the owner of field Survey

No.233 situated at village Sawarkhed, Taluka Morshi, District Amravati. The

Zilla Parishad under the Employment Guarantee Scheme constructed a

percolation tank at the said village after which it was handed over to the

Warud Sub-Divisional Office of the Zilla Parishad for its maintenance. In the

year 2007 on account of excessive rains there was continuous outflow of

water from the said percolation tank. The water entered the agricultural

fields of the petitioners and damaged the standing orange trees. On the

complaint made by the petitioners there was a spot inspection of the

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petitioners fields on 17/09/2007 by the Deputy Engineer of the Zilla

Parishad, other officials as well as the land owners. It was noticed that in

the land admeasuring 4½ acres owned by the petitioners about 250 orange

trees as well as other crops grown therein had been damaged due to excess

water. This panchanama was signed by the officials of the Zilla Parishad as

well as the agriculturists. Thereafter on 05/11/2007 the Executive Engineer

of the Irrigation Department of the Zilla Parishad also inspected the lands of

the petitioners. He directed the Deputy Engineer to submit a proposal to the

Tahsildar, Morshi as well as the Agriculture Officer, Warud by quantifying

the loss sustained by the petitioners. The Tahsildar on 28/04/2009

submitted a report in that regard to the Collector quantifying the damage

caused at Rs.7,92,450/-. The Collector in turn on 08/07/2010 issued a

communication to the Divisional Commissioner seeking release of the

aforesaid amount for being paid to the petitioners as compensation. The

Divisional Commissioner Amravati Division thereafter on 11/05/2011 issued

a communication to the Zilla Parishad directing it to take appropriate steps

for compensating the petitioners. The Chief Executive Officer then on

12/03/2013 entered into communication with the State Government in its

Water Conservation Department, Mantralaya Mumbai. Subsequent thereto

various requests were made to the State Government by the Divisional

Commissioner for releasing the aforesaid amount and the matter was

followed up by the Collector also. On 29/04/2017 the State Government

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through its Revenue and Forest Department informed the Divisional

Commissioner as well as the Collector that it was the Water Conservation

Department which was responsible to take necessary steps and hence a

proposal was directed to be made to that department. Since there was no

further progress in the matter the petitioner No.1 issued a legal notice and

the petitioners have thereafter filed this writ petition under Article 226 of the

Constitution of India seeking release of the amount of compensation.

2. Shri P. S. Patil, learned counsel for the petitioners submitted that

having quantified the amount of compensation of Rs.7,92,450/- on account

of water entering the petitioners' agricultural fields as a result of it

overflowing from the percolation tank constructed by the Zilla Parishad, the

petitioners were entitled to be duly compensated. The amount of

compensation was determined after a joint inspection was carried out by the

officers of the Zilla Parishad in presence of the affected agriculturists on

17/09/2007. A panchanama was duly prepared in their presence. Yet

further inspections were carried out on 05/11/2007 and 29/11/2008 by the

Executive Engineer of the Zilla Parishad as well as the Agriculture Officer

respectively. Various communications issued by the Chief Executive Officer

of the Zilla Parishad, Collector as well as the Divisional Commissioner to the

State Government recommending release of the aforesaid amount towards

compensation had not been acted upon by the State Government. It was his

J-WP-2652-19 5/13

contention that since it was the Zilla Parishad which had constructed the said

percolation tank and it was being maintained by it, the primary responsibility

to pay the amount of compensation was that of the Zilla Parishad. Despite

passage of about fourteen years the petitioners had not received the amount

of compensation as quantified. The spot inspection having been carried out

in the presence of officers of the Zilla Parishad it was not permissible for the

Zilla Parishad to disregard the observations in the reports prepared during

such inspection. There was no justifiable reason to deny grant of

compensation to the petitioners. He submitted that if at all the Zilla Parishad

was not in a position to pay the amount of compensation as determined, the

State Government should be directed to make the aforesaid payment. The

compensation was due and payable in the year 2009 and the same not

having been paid for all these years the petitioners were entitled to receive

interest on the same also. He referred to the decision in Surya Constructions

Vs. State of Uttar Pradesh (2019) 16 SCC 794 and submitted that the

petitioners were entitled for the reliefs claimed in the writ petition.

3. Smt. Sangita Jachak, learned Assistant Government Pleader for

respondent Nos.1 to 4 submitted that it was the primary responsibility of the

Zilla Parishad to pay the amount of compensation in view of the fact that the

percolation tank in question fell within the purview of the Zilla Parishad and

that the damage as caused was also assessed by it. The State Government

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was not responsible for the damages sustained by the petitioners on account

of the percolation tank having overflown.

4. Shri S.A.Mohta, learned counsel for the respondent Nos.5 and 6-

Zilla Parishad opposed the prayers made in the writ petition. He submitted

that there was no basis to quantify the amount of compensation as done by

the petitioners at Rs.7,92,450/-. Referring to the revenue records of field

Survey Nos.232 and 233 he submitted that the same indicated absence of

orange trees in the said field during the relevant period. In the light of the

said revenue records the inspection notes prepared on 17/09/2007 and

05/11/2007 could not be relied upon. The claim made by the petitioners

was disputed and as there was no material on record to determine the

amount of compensation it would not be permissible to grant the prayers as

made in the writ petition especially since the same would involve

adjudication of disputed questions of facts. It was thus submitted that the

writ petition was liable to be dismissed.

5. We have heard the learned counsel for the parties at length and

we have also perused the material placed on record by them. At the outset,

we may refer to the objection raised by the learned counsel for the Zilla

Parishad that since the claim as made by the petitioners involves various

disputed questions of fact, the same may not be adjudicated in exercise of

writ jurisdiction under Article 226 of the Constitution of India. In this

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regard, it may be stated that a writ petition is not liable to be summarily

dismissed merely because some disputed questions are likely to arise for

determination. The writ Court would be slow to entertain a claim involving

disputed questions of fact under Article 226 of the Constitution of India.

However, at the same time, if the material facts on record are undisputed

and the prayers made in the writ petition can be adjudicated on the basis of

such undisputed facts, there is no reason not to entertain the writ petition

merely because the respondents contend that disputed questions could arise

for adjudication. We thus propose to adjudicate the prayers made in the writ

petition on the basis of admitted and undisputed facts that have been placed

on record. We may thus refer to these undisputed facts.

6. While undertaking works under the Employment Guarantee

Scheme, the Zilla Parishad constructed a minor percolation tank in the year

1980. The management of this percolation tank was entrusted to the Warud

Sub-Division of the Zilla Parishad which can be gathered from the inspection

note dated 13/11/2007 prepared by the Executive Engineer of the Zilla

Parishad. In the year 2007 on account of excessive rains the percolation

tank started overflowing and the excess water entered the adjacent lands

and especially Survey Nos. 232 and 233 owned by the petitioners. On the

directions of the Executive Engineer, the District Agriculture Officer, Morshi

visited the fields of the petitioners for assessing the damage caused to the

J-WP-2652-19 8/13

orange trees standing there on account of such overflow of water. On

inspecting the same he assessed the damage caused to the orange trees from

Survey No.232 to Rs.2,38,050/- and from Survey No.233 the damage was

assessed at Rs.5,54,400/-. This is clear from his visit to the said fields on

29/11/2008 as reflected in the communication dated 03/02/2009. It is on

the basis of this assessment that the Tahsildar on 28/04/2009 informed the

Collector, Amravati about the same after which the Collector on 08/07/2010

forwarded this information to the Divisional Commissioner, Amravati. In

both these communications a request has been made to treat the aforesaid as

a case of damage having been sustained due to overflow of the water from

the percolation tank as a special case. The Divisional Commissioner on

11/05/2011 issued direction to the Chief Executive Officer of the Zilla

Parishad that the amount of compensation as determined be disbursed at the

level of Zilla Parishad itself. The Chief Executive Officer hence on

12/03/2013 made a request to the State Government through its Water

Conservation Department to release appropriate funds as the same were not

available with the Zilla Parishad. After various reminders in that regard

ultimately on 29/04/2017 the State Government through its Revenue and

Forest Department (Relief and Rehabilitation) informed the Divisional

Commissioner as well as the Collector that since the damage was not caused

due to any natural calamity, no relief could be granted by the said

department and the matter would lie with the Water Conservation

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Department. The Executive Engineer of the Zilla Parishad then again made a

request to the Collector to release the aforesaid amount to facilitate the

payment of the damage as assessed. The Collector as Member Secretary of

the District Planning Committee informed the Zilla Parishad on 15/09/2017

that it was the Zilla Parishad who had control over the said percolation tank

and it was its responsibility to ensure that no damage was caused due to

overflow of the water therefrom. It was stated that the matter did not fall

within the purview of the District Planning Committee and that the Zilla

Parishad itself should take necessary steps to raise the said amount for being

paid to the petitioners. Despite the aforesaid there was no further progress in

the matter which has compelled the petitioners to approach this Court. It is

in these facts that we have entertained the writ petition for adjudicating the

prayers made therein.

7. According to the learned counsel for the Zilla Parishad, the

number of trees as stated to have been affected by the discharge of excess

water in the year 2007 was not correct in view of the revenue records of the

said lands. It was stated that since in the revenue records the exact number

of trees shown to be standing were less than the number of trees as reflected

in the inspection report, the petitioners could not be compensated in the

aforesaid manner. We are unable to accept this contention for the simple

reason that when the inspection of Survey Nos. 232 and 233 was conducted,

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the representatives of the Zilla Parishad were present which is clear from the

panchanama dated 17/09/2007 and 29/11/2008. The statement of

valuation as prepared by the Taluka Agriculture Officer clearly refers to the

existence of 90 orange trees in Survey No.232 and 180 orange trees in

Survey No. 233. This report was prepared pursuant to the directions issued

by the Executive Engineer on 13/11/2007. The assessment of damages as

made by the Taluka Agriculture Officer on 03/02/2009 on the basis of his

visit on 29/11/2008 has been the basis of all subsequent communications by

the Tahsildar, Collector and thereafter the Divisional Commissioner. At no

point of time has any grievance been raised that the report of the Taluka

Agriculture Officer was either incorrect or that the number of trees

mentioned therein were on a higher side. It is only for the first time in the

submissions filed on behalf of the Zilla Parishad before this Court that the

said contention is sought to be raised. In the light of the aforesaid

communications issued by various officers as well as by the Zilla Parishad,

there is no basis to raise the contention that the number of trees for which

the compensation is being sought did not exist on the lands in question.

Hence we are not in a position to accept the said submission made on behalf

of the Zilla Parishad. It would not be permissible for the Zilla Parishad to go

beyond its own documents especially since the inspection took place in the

year 2007 and the matter proceeded on the basis of said reports since then.

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8. From the aforesaid undisputed facts which are again reiterated in

the recent communication of the Executive Engineer of the Zilla Parishad on

13/11/2017 it is clear that in the year 2007 on account of water overflowing

from the percolation tank constructed by the Zilla Parishad, damage was

caused to the orange trees standing in Survey Nos. 232 and 233 to the extent

of Rs.7,92,450/-. Under the provisions of Section 129(1) of the Maharashtra

Zilla Parishads and Panchayat Samitis Act, 1961 work done by the Zilla

Parishad either from the district funds or with government assistance or

through public participation vests in the Zilla Parishad. As stated above, it

was the Zilla Parishad which got the percolation tank constructed under the

Employment Guarantee Scheme in the year 1980. The Warud Sub-Division

of the Zilla Parishad was thereafter entrusted with the management of the

same. It is thus clear that since the percolation tank vests with the Zilla

Parishad, it is the primary responsibility of the Zilla Parishad to satisfy the

claim as made by the petitioners. This aspect is also clear from the various

communications on record and the direction issued by the Divisional

Commissioner on 11/05/2011. It appears that considerable time was spent

in the communications between the Chief Executive Officer, the Collector

and the Divisional Commissioner as to the responsibility of making the

payment towards compensation. Once it is clear that the percolation tank

vests in the Zilla Parishad, there can be no doubt that it is the Zilla Parishad

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alone who would be responsible to compensate the petitioners. It appears

that though the Zilla Parisahd was seeking to putforth its financial condition

as a ruse for not paying the compensation, the same cannot be a ground for

disallowing the claim of the petitioners. The damage having been assessed

at Rs.7,92,450/- and it being clear that such damage to the orange trees

standing in the lands of the petitioners was caused due to water overflowing

from the percolation tank which vests in the Zilla Parishad, it would be the

responsibility of the Zilla Parishad to pay the amount of compensation.

9. In that view of the matter we find that from the undisputed

position on record which includes various communications exchanged

between the parties, it is the Zilla Parishad which would be responsible to

pay the amount of Rs.7,92,450/- to the petitioners. This is the only

conclusion that can be drawn from the documentary material on record.

Though the petitioners have prayed for grant of interest on the amount of

compensation, in the facts of the case we are not inclined to grant that

prayer in these proceedings. We accordingly proceed to pass the following

order :

(a) Zilla Parishad, Amravati through its Chief Executive Officer shall

pay the petitioner No.1 an amount of Rs.2,38,050/- for the

damage caused to 90 orange trees standing in Survey No. 232. It

shall also pay the petitioner No.2 an amount of Rs.5,54,400/- for

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the damage caused to 180 orange trees standing in Survey

No. 233.

(b) The aforesaid amounts be paid to the petitioners within a period

of eight weeks from today failing which the aforesaid amount

would carry interest @ 6% per annum on the expiry of the period

of eight weeks till realisation.

(c) It would be open for the Zilla Parishad to seek reimbursement of

the aforesaid amount from the other respondents, if the same is

permissible under any policy/scheme in force.

10. Rule is made absolute in aforesaid terms leaving the parties to

bear their own costs.

                   (A. S. CHANDURKAR, J.)                    (CHIEF JUSTICE)




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