Bombay High Court
Harne Pradeshik Nal Pani Puravtha Yojna vs Nirmal Group Grampanchayat Gimavhane ... on 25 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:13755
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13657 OF 2024
1. Harne Pradeshik Nal Pani Purvtha Yojna
Sukanu Samiti/Steering Committee through
Chairman Shri. Somnath Poshiram Pavshe
SANTOSH 2. Harne Pradeshik Nal Pani Purvtha Yojna
SUBHASH
KULKARNI Sukanu Samiti/Steering Committee through
Digitally signed by
SANTOSH SUBHASH
Secretary Shri. Bhaskar Pandurang
KULKARNI
Date: 2025.03.25 Dorkhulkar
18:39:52 +0530 ...Petitioners
Versus
1. Nirmal Group Gram Panchayat,
Gimavhane - Vanand, Taluka Dapoli through
Sarpanch
2. Nirmal Group Gram Panchayat,
Gimavhane - Vanand, Taluka Dapoli through
Gram Vikas Adhikari (Village Development
Officer)
3. Shreeji Jal Yojna, through its Director
Shri. Jayesh Shroff
4. The State of Maharashtra, Through its
Principal Secretary, Water Supply and
Sanitation Department, Mantralaya, Mumbai ...Respondents
Mr. Sumit Kothari, for the Petitioners.
Mr. Saurabh Railkar, for the Respondent No.1 to 3.
Ms. Tanu Bhatia, AGP for the State - Respondent No.4.
CORAM: N. J. JAMADAR, J.
DATED: 25th MARCH, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
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2. This petition under Article 227 of the Constitution of India
assails the legality, propriety and correctness of a judgment and
order dated 22nd August, 2024 passed by the learned District
Judge, Khed, in Misc. Civil Appeal No.10 of 2021 dismissing the
said appeal preferred by the petitioners - plaintiffs by affirming
the order passed by the Civil Court on an application (Exhibit-5)
in Regular Civil Suit No.68 of 2021.
3. Shorn of unnecessary details, the background facts
leading to this petition can be stated as under:
3.1 The plaintiffs are the Chairman and Secretary of the
Steering Committee of Harne Pradeshik Nal Pani Puravtha
Yojna, (Harne Regional Water Supply Scheme). In the year 1998,
the State Government had sanctioned a water supply scheme
for villages Harne, Pajpandhari, Juikar Mohalla (Part of Adkhal
Gram Panchyat), Adkhal and Shivaji Nagar Gram Panchayat,
titled Harne Regional Water Supply Scheme. Under the said
scheme, the water stored by embankment at Sondeghar Dam on
Jog River was allowed to be utilized for the supply of water to
the said five villages. Eventually, the additional Harne Water
Supply Scheme was implemented and handed over to four
Grampanchayats for management.
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3.2 Asserting that defendant Nos.1 to 2, who represented
Gimhavane and Vanand village panchayats, in collusion with
defendant No.3 Contractor, without obtaining the sanction of
the plaintiffs and the permission of the competent authorities
started to excavate the land to install the plant to
unauthorizedly extract water from the reservoir. The plaintiffs
claim the unauthorized lifting of the water from the reservoir by
the defendants would severally affect the source of water for
Harne Regional Water Supply Scheme and thereby jeopardize
plaintiffs water supply scheme. The plaintiffs, thus,
instituted a suit to restrain the defendants from implementing
the water supply scheme for the defendants and lifting the
water from the reservoir.
3.3 An application for temporary injunction was filed. By an
order dated 25th June, 2021 the learned Civil Judge, Dapoli, was
persuaded to reject the application, observing that the plaintiffs
failed to make out a prima facie case. The plaintiffs had no
exclusive right to draw water from the said reservoir. The
defendants were also entitled to draw water from the reservoir
by obtaining necessary permission from the State Government.
3.4 Aggrieved, the plaintiffs preferred an appeal before the
District Judge, Khed. By the impugned order, the learned
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District Judge dismissed the appeal concurring with the view of
the learned Civil Judge. It was inter alia noted that the plaintiffs
failed to establish that the implementation of the scheme for
water supply for Gimhavane and Vanand would diminish the
water supply for the plaintiffs. Balance of convenience tilted in
favour of the defendants and grant of stay would cause
irreparable loss to the defendants.
4. Being further aggrieved, the plaintiffs have invoked the
writ jurisdiction.
5. While issuing notice by an order dated 11 th September,
2024, this Court directed that the State Government be
impleaded as party respondent to this petition, and the State
Government shall file an affidavit as to the legality, validity and
status of Harne Scheme, its extension and applicability, and
also assist the Court as to whether the defendants, who
represent villages Gimhavane and Vanand, would be entitled to
draw water from the said reservoir in the wake of the permission
granted by the State Government or otherwise.
6. Pursuant to the said order, the State Government has
filed the affidavits. Defendant Nos.1 to 3 - Respondent Nos.1 to
3 have also filed an affidavit-in-reply in opposition to the
petition.
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7. I have heard Mr. Sumit Kothari, the learned Counsel for
the petitioners - plaintiffs, and Mr. Saurabh Railkar, the learned
Counsel for respondent Nos.1 to 3 - defendant Nos.1 to 3, and
Ms. Tanu Bhatia, the learned AGP for the State - respondent
No.4, at some length. The learned Counsel took the Court
through the pleadings, affidavits and the material on record.
8. Mr. Kothari, the learned Counsel for the plaintiffs, took the
Court through the documents, which evidence the sanction and
implementation of Harne Regional Water Supply Scheme. An
endeavour was made to draw home to the point that the said
scheme was sanctioned for the specified five villages.
Gimhavane and Vanand villages, which are located at a
considerable distance from the five villages for which this Harne
Water Supply Scheme has been sanctioned, have no right to
draw the water from the reservoir from the point, near which
the water collection and storage unit of the plaintiffs scheme is
situated. If the defendants draw the water from the same
reservoir by constructing a water collection and storage unit
near the scheme of the plaintiffs, the water supply to the five
villages for whom Harne Scheme has been implemented would
be prejudicially affected. Mr. Kothari was at pains to assert that
the plaintiffs have no objection to the defendant Nos.1 and 2
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drawing water from Jog River from any other location. However,
the construction of the collection and storage unit in close
proximity to the unit of the plaintiffs cannot be permitted as it
would affect the plaintiffs scheme.
9. Mr. Railkar, the learned Counsel for defendant Nos.1 to 3
- respondent Nos.1 to 3, on the other hand, would urge that the
objection of the plaintiffs to the implementation of the scheme of
defendant Nos.1 to 3 is factually unfounded and legally
misconceived. Mr. Railkar submitted that both the courts below
have categorically recorded findings that the plaintiffs do not
have exclusive right to draw water from the said reservoir. Nor
the plaintiffs are likely to be affected by the implementation of
the water supply scheme for defendant Nos.1 to 3.
10. Mr. Railkar submitted that the State Government has
sanctioned the water supply scheme for defendant Nos.1 to 3 in
accordance with the provisions contained in Maharashtra Water
Resources Regulatory Authority Act, 2005. A committee
appointed under Section 16 of the said Act has examined the
matter and approved sectoral allocation of water for various
purposes. The resolutions passed by the Government and the
assessment of the expert body indicates that Jog River is a
perennial river and only 0.205 TMC water is required for
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implementation of the scheme of defendant Nos.1 and 2.
Pursuant to the sanction accorded by the Government, an
agreement has been executed between defendant Nos.1 and 2
Village panchayats in the capacity of Bulk Water User Entity
("BWUE") and Executive Engineer, Ratnagiri, Irrigation
Department, Ratnagiri, a Bulk Water Supply Entity ("BWSE). It
was, thus, submitted that once the concerned Department has
taken an informed decision, based on expert assessment, the
plaintiffs cannot seek to restrain the implementation of the
scheme, which is for the benefit of more than 7500 inhabitants
of defendant Nos.1 and 2 of Gimhavane and Vanand villages.
The continued resistance of the plaintiffs to the implementation
of the scheme has caused grave prejudice to the inhabitants of
villages Gimhavane and Vanand and has also resulted in the
project overrun and escalation in the cost of the project.
11. Ms. Bhatia, the learned AGP, also supported the
submissions of Mr. Railkar. It was submitted that the scheme
for Gimhavane and Vanand village has been approved after
considering the availability of water and sectoral allocation plan.
The plaintiffs do not have any right to restrain the State from
permitting the other village panchayats to draw water from the
said reservoir.
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12. To start with, the remit of jurisdiction of this Court in a
petition against the discretionary orders passed by the Civil
Courts. In exercise of supervisory jurisdiction, this Court is not
supposed to act as an Appellate Court. This Court cannot
re-appreciate the evidence and material. Nor is it open to correct
error of facts and law. This Court is expected to intervene where
the courts below have transgressed the jurisdictional limits and
committed patent errors of law. Supervisory jurisdiction is
primarily to ensure that the Civil Courts act within the bounds
of their jurisdiction.
13. Keeping in view the aforesaid limits of the jurisdiction of
this Court, at the outset, it is imperative to note that the
concurrent prima facie findings of facts by the courts below are
generally not amenable to interference unless the findings are
plainly perverse. Perversity in the findings of the Courts may
arise either on account of non-consideration of material which
bears upon the determination of the issue or consideration of
the extraneous factors in exercising the discretion to grant or
refuse the injunction.
14. On the aforesaid touchstone, it is imperative to note that,
even if the case of the plaintiffs is taken at par, the plaintiffs do
not have any proprietary title and interest either in the source of
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the water or the scheme that has been implemented for the
water supply to their villages. The scheme was sanctioned and
implemented by the Government and, thereafter, its
management is entrusted to the local bodies i.e. Gram
Panchayats. On first principles, the plaintiffs do not have any
right to restrain the State Government from sanctioning the
scheme for other village panchayats. The learned Civil Judge
was justified in observing that the water is a natural resource
and nobody can assert an exclusive claim over the natural
resources.
15. The only question that warrants consideration is, whether
the water supply scheme for Gimhavane and Vanand village
panchayats has been sanctioned by the State Government by
following the due process. The affidavit-in-reply filed on behalf
of defendant Nos.1 and 2 makes it clear that the authority
constituted under the Maharashtra Water Resources Regulatory
Authority Act, 2005 has considered the proposal, in the light of
the input of the experts and thereafter sanctioned the scheme.
The technical evaluation sheet annexed to the communication
dated 12th October, 2023 indicates that the available water
storage is 2.211 TMC. Out of that, only 0.205 TMC water was
proposed to be utilized for the scheme for Gimhavane and
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Vanand villages. Upon consideration of the technical evaluation
report, the Government has sanctioned the scheme vide
Resolution dated 14th March, 2024. And an agreement also came
to be executed on 7th August, 2024 between Gimhavane and
Vanand village panchayats, as BWUE, and BWSE.
16. The material on record indicates that Jog River is a
perennial river. There is more than adequate storage of water
even at the embankment near which the plaintiffs water
collection and storage unit is located. The quantity of water
which is proposed to be utilized for implementation of the
scheme for Gimhavane and Vanand is such that it would not
prejudicially affect the supply of water for the plaintiffs. The
objection of the plaintiffs to the construction of the water
collection and storage unit for Gimhavane and Vanand water
supply scheme is wrongly grounded in facts and unsustainable
in law. It defies comprehension as to how the construction of a
collection and storage unit even at a close distance of the unit
of the plaintiffs, would affect the scheme of the plaintiffs, when
there is more than adequate water storage to meet the
requirements of water supply, under both the schemes.
17. Prima facie it appears that the plaintiffs do not have any
right to either restrain the defendants from drawing water from
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the reservoir or the State Government from sanctioning such
scheme for Gimhavane and Vanand village panchayats. On the
aspect of the balance of convenience, the courts below were fully
justified in returning the finding that the balance of convenience
tilted in favour of the defendants. An order of injunction would
cause serious prejudice to the inhabitants of Gimhavane and
Vanand villages, which are stated to be parched for water.
18. In the totality of circumstances, the courts below were
fully justified in declining the prayer for interim injunction. This
Court does not find that there is any infirmity in the impugned
orders. Resultantly, no interference is warranted in exercise of
supervisory jurisdiction. The petition, therefore, deserves to be
dismissed.
19. Hence, the following order:
:ORDER:
(i) The petition stands dismissed with costs.
(ii) Rule discharged.
[N. J. JAMADAR, J.]
