MANISHKUMAR R PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE. Mr.Rashesh Rindani, learned Assistant Government Pleader waives service of notice of RULE for respondent No.1. Mr.H.S.Munshaw, learned advocate waives service of notice of RULE for respondents Nos.2 to 4.

(2.) THIS Petition under Article 226 of the Constitution of India has been preferred, inter alia, with a prayer to issue an appropriate writ, order or direction, declaring the decision of the respondents in restraining the petitioner from lifting water from the Canal and to remove the pump sets from the site, as arbitrary, illegal and violative of Article 14 of the Constitution of India. The notice dated 20-05-2011, issued by the respondent-authority, directing the petitioner to remove his pump set from the Canal, is also the subject matter of challenge.

(3.) MR.H.S.Munshaw, learned advocate for respondents Nos.2 to 4 has submitted that the land on which the main Canal as well as the Branch Canal have been constructed has been acquired by the Sardar Sarovar Narmada Nigam (respondent No.2 referred to as the Corporation hereinafter), under the provisions of the Land Acquisition Act. It is emphasised that the entire Branch Canal and land situated on both sides of the Canal is owned by the respondent Corporation, and the same is being utilised for various purposes such as construction of service road, maintenance and inspection path, maintenance of land width, boundary gutter, etc. There cannot be any unauthorized encroachment or entry upon the said property. MR.Munshaw has further contended that though water from the main Canal is for agricultural purposes it can be used for irrigation only as per the norms and policy formulated by the Corporation. Referring to Resolution dated 16-01-2006, passed by Board of Directors of the Corporation, it is submitted that the manner and method of disbursement of water has been decided and it is laid down that no individual farmer is to be given permission to draw water. Only the Water Users Associations (WUAs for short) of the Command Area can draw water as per the arrangement, subject to conditions. It is submitted that Item No.5 of the Resolution categorically lays down that no water shall be supplied during the hot weather and summer months, for irrigation. Further, it is stated in the Resolution that water shall not be supplied outside the Command Area of the Project. The learned advocate for the respondent Corporation has emphasised that in the present case, village Santej, where the petitioner is residing, is not within the Command Area, therefore, water cannot be supplied to it and the petitioner is lifting water in an unauthorised manner. It is further submitted that water for irrigation is permitted to be used during two seasons of the Kharif and Rabi crops but the petitioner has drawn water without permission or authority even after that period, therefore, a penalty was imposed upon him and charges were recovered. The receipt produced by the petitioner is issued for the Kharif season, for the year 2010-2011. The year has ended on 31-03-2011 and the petitioner cannot draw water after that date, as per the policy of the respondent Corporation. In any case, water cannot be drawn after the Rabi season which ends on 15-03-2011. It is clarified by the learned advocate for the respondent Corporation that during the summer season water is only provided to public authorities like the Gujarat Water Supply and Sewerage Board, Ahmedabad Municipal Corporation, IFCO etc. for drinking purposes only. In violation thereof, the petitioner has unauthorizedly put up pipes with a diesel pump to draw water from the Branch Canal for irrigation purposes. It is further contended that in spite of being repeatedly instructed not to do so, the petitioner has continued to commit the above irregularities by encroaching upon the property of the Corporation and drawing water with the help of a diesel pump. Ultimately, the respondent Corporation was constrained to issue notice dated 20-05-2011 to the petitioner, asking him to withdraw the pump sets immediately or to face consequences,as mentioned. That the activities of the petitioner, such as unauthorizedly encroaching upon the land of the respondent Corporation and putting up a huge pump set on a concrete base, are causing damage to the Canal and service road of the respondent Corporation. On the basis of the above submissions it is prayed that the petition be dismissed.