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2012 DIGILAW 399 (ORI)

Brajabandhu Nath v. State of Orissa

2012-09-07

S.K.MISHRA, V.GOPALA GOWDA

body2012
JUDGMENT S.K. MISHRA, J. : In this writ petition, the villagers of village Jharbeda pray to direct the opposite parties to provide an embankment in Satrusagar Tank, which will facilitate the provision of adequate water for use of irrigation and other purposes. 2.In Hindol block of Dhenkanal District, there are two adjoining villages, namely, Jharbeda and Sanmunda and both the villages share the water of Satrusagar Tank. The said tank/M.I.P. caters to the need of two villages. Satrusagar MIP has been allocated to Sanmunda village whereas Satrusagar Tank has been allocated to Jharbeda village. The tank which has been allocated to Jharbeda village is perennially without water as the level of part of the tank, is at much higher level vis-a-vis the level of the tank at the site of Sanmunda village. Thus, all the water flows down to the side of Samunda village as there is no embankment to provide minimum water level for the Jharbeda village. 4.The villagers of Sanmunda had earlier approached this Court by filing O.J.C. No.6151 of 1997, which was disposed of on 31.7.1997. It was a Public Interest Litigation. The villagers of Sanmund had challenged the proposed action of raising embankment over Sanmunda Satrusagar M.I.P. On 31.7.1997 this Court disposed of the writ petition by passing the following order : “The grievance of the present writ petitioner is that the opposite parties 1 to 3, 5 and 9 are trying to interfere with the Sanmunda Satrusagar MIP situated in Jharbeda by illegally putting embankment in the project and leasing out the same for pisciculture. Learned Addl.Govt. Advocate Mr. R.K. Mohanty has made a statement on the basis of instructions received that there is no proposal to raise any embankment by dividing the above project. After hearing learned counsel for petitioner and learned Addl.Govt. Advocate, we dispose of the writ petition with a direction that O.Ps.2 and 3 shall not raise any embankment by dividing the above project into two parts so as to interfere with the irrigation rights. After hearing learned counsel for petitioner and learned Addl.Govt. Advocate, we dispose of the writ petition with a direction that O.Ps.2 and 3 shall not raise any embankment by dividing the above project into two parts so as to interfere with the irrigation rights. The Gram Panchayat O.P. No.9 is also directed not to put the project to auction for the purpose of pisciculture.” 5.In the meantime, the villagers of Jharbeda have been undergoing tremendous hardship as the water level in Satrusagar Tank, which has been allocated to their village, is precariously low and the villagers have no other source of water and thus, the inaction of the opposite parties is vitally affecting the daily livelihood of the entire villagers. They have been repeatedly agitating their grievances before the opposite parties, more particularly, the Sub-Collector, Hindol and praying for adequate water supply to the village. The inlet to the tank is through Satrusagar Tank allocated to Jharbeda village and unless steps are taken to provide water to village Jharbeda, the entire villagers would suffer. Unless there is proper boundary in the tank there cannot be adequate water for the villagers of Jharbeda and under these circumstances, the villagers pray that appropriate order be passed directing to construct a boundary in the tank for providing adequate water to the petitioners’ village Jharbeda. The Satrusagar Tank is allocated to Jharbeda village, which is under the control of Panchayati Raj Department and the Satrusagar Minor Irrigation Project is under the control of Irrigation Department. There are poles demarcating the two portions allocated to each of the villages. The petitioners, therefore, plead that if boundary is constructed upto a minimum level, the other villagers would not be affected as the same would provide water to both the villagers. The position, as it exists now, would severely affect the present petitioners’ village, but by the construction of a boundary, there cannot be any prejudice caused to the other villagers as both the villages will have adequate water supply and the said position would be just and equitable for both the parties concerned. In view of the aforesaid submission, the petitioners have filed this writ petition with the prayer as afore-described. 6.Opposite parties 1 to 5 and 9 have filed their counter affidavit, inter alia, pleading that the land measuring Ac.4.48 dec. In view of the aforesaid submission, the petitioners have filed this writ petition with the prayer as afore-described. 6.Opposite parties 1 to 5 and 9 have filed their counter affidavit, inter alia, pleading that the land measuring Ac.4.48 dec. appertaining to Hal Plot No.512 under Hal Khata No.100 of village Jharbeda is recorded in favour of the State in Rakshita and the kissam of the land is Jalasaya/2 and the said tank is locally known as “Satrusagar Tank”. It is further stated that adjacent to the said land, another plot of land appertaining to Hal Khata No.166 of village Sanmunda measuring Ac.7.23 dec. under Hal Plot No.1562 is also recorded in favour of the State and kisam of the plot is ‘Jalasaya’. The said jalasaya is locally known as “Satrusagar M.I.P”. The people of Jharbeda have been using the water of the said Satrusagar Tank for the purpose of bathing as well as agriculture. Similarly, the people of village Sanmunda have been using the water of Satrusagar M.I.P. for the purpose of bathing and agriculture. At present there is no embankment dividing the water area of the tank and the M.I.P. Hence, both the tank and the M.I.P. contain water depending upon the natural gradient at the bottom of the tank. Since there is existing dispute between both the villages, it is not possible to construct embankment between the tank and the M.I.P. and as such, the opposite parties are not taking appropriate measures to provide water to village Jharbeda. These opposite parties also admit that village Jharbeda is situated at a higher level than Satrusagar M.I.P. During rainy season, the rain water flows down through Satrusagar tank and largely accumulates in Satrusagar M.I.P. since there is no embankment in between. Earlier there was a small embankment in between the two ponds, but due to heavy flow of rain water from the side of Satrusagar Tank, the small embankment had been gradually washed out. The Satrusagar Tank and Satrusagar M.I.P. have been transferred to the management of Kantimili Gram Panchayat and as such, both the tanks are under the control of Kantimili Gram Panchayat. The Satrusagar Tank and Satrusagar M.I.P. have been transferred to the management of Kantimili Gram Panchayat and as such, both the tanks are under the control of Kantimili Gram Panchayat. The villagers of Jharbeda had participated in annual public auction of Satrusagar Tank in the year 1997 at Kantimili Gram Panchayat and one Rabi Narayan Nath, son of Ananda Nath of village Jharbeda being the highest bidder had taken the tank on lease for pisciculture by depositing the auction price of Rs.3050/-. Similarly, Satrusagar M.I.P. coming under village Sanamunda had been put to public auction for pisciculture in the year 1994-95 and the people of village Sanamunda Participated in the public auction at Kantimili Gram Panchayat. In the said auction one Sudhakar Behera, son of Chandramani Behera of village Sanamunda being the highest bidder had taken the M.I.P. on lease by depositing the auction price of Rs.2450/-. But however, at present due to the order passed by this Court on 31.7.1997 in the aforesaid writ petition, public auction for the said tanks for the purpose of pisciculture has been stopped. 7.The opposite parties have further admitted that due to scarcity of water, the villagers of Jharbeda have been facing problem for the purpose of bathing and drinking water for cattle etc., but due to the order passed by this Court in the earlier writ petition, no embankment can be raised by dividing the above project into two parts. Therefore, the allegation made by the petitioners regarding the inaction of the opposite parties is baseless. These opposite parties further submitted that appropriate orders may be passed to solve the dispute between the villagers of Jharbeda and Sanmunda. 8.We have heard the learned counsel for the parties and also perused the records. The map which has been annexed as Annexure clearly shows that there was an embankment between Satrusagar Tank and Satrusagar M.I.P. It is also admitted by all and sundry that Satrusagar Tank is at a higher plain, which leads to drainage of all rain water towards the Satrusagar M.I.P. side and leaves the villagers of Jharbeda without any water to be used for the purpose of bathing, drinking water for the residents of the village and cattle and for irrigation of agriculture land. As such, the petitioners are facing a lot of difficulties. The petitioners, therefore, pray for a provision of water,. As such, the petitioners are facing a lot of difficulties. The petitioners, therefore, pray for a provision of water,. which is the basic necessity for human life and unless, their need is fulfilled, it shall be violative of Article 21 of the Constitution as water is very much necessary for bare minimum existence of human life and cattle of the villagers. 9.Learned counsel for the opposite parties, on the other hand, very strenuously argued that this writ petition is barred by the principles of res-judicata in view of the order dated 31.7.1997 passed by this Court in OJC No.6151 of 1997. It is noted here that the order passed in the aforesaid writ petition has not decided any issue on contest, rather it has reiterated the stand taken by the opposite parties that there is no proposal for construction of any embankment in between the tank and M.I.P. Thus, there cannot be any bar for filing a fresh writ petition on the principles of res judicata. 10.Moreover, it is seen that the situation has changed and in the meantime 15 years have elapsed and there is acute shortage of water for the villagers of Jharbeda. Hence, we are of the considered opinion that the opposite parties should take appropriate decision in this matter to construct an embankment between Satrusagar Tank and Satrusagar M.I.P. or make such other provisions for availability of adequate water for the villagers of Jharbeda. 11.In that view of the matter, this writ petition is disposed of directing the opposite parties 1,2 and 3 to constitute a team of experts to study the situation and take into consideration all the relevant aspects of the case, decide whether an embankment is necessary for the purpose of providing water to the villagers of Jharbeda within a period of three months from the date of receipt of a certified copy of this judgment. The decision to be taken shall be implemented as expeditiously as possible. In the facts and circumstances of the case, there shall be no order as to cost. V. GOPALA GOWDA, C.J.I agree. Petition disposed of.