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Madhya Pradesh High Court · body

2016 DIGILAW 205 (MP)

Borewell Association, Rewa v. State of M. P.

2016-03-08

SUJOY PAUL

body2016
ORDER : Sujoy Paul, J. The petitioner-Borewell Association is aggrieved by the order of the Collector, Rewa dated 1-1-2016, whereby the said authority has invoked section 3 of the Madhya Pradesh Peya Jal Parirakshan Adhiniyam, 1986 (hereinafter referred to as ‘the Adhiniyam’ for short) and declared the Rewa District as water scarcity area. 2. Shri Sanjay K. Agrawal, learned counsel for the petitioner contends that the members of the petitioner association are engaged in the business of digging of tube-well/bore-well. The association is a registered association under the Madhya Pradesh Registrikaran Adhiniyam, 1973. This petition is filed in the representative capacity against the said order of the Collector, Rewa because the said order is not in consonance with the requirement of section 3 of the Adhiniyam. Shri Agrawal advanced singular contention. He urged that para 1 of the impugned order dated 1-1-2016 shows that the decision to declare District Rewa as a water scarcity district is based on verbal discussion with the Officers of the PHE, Revenue and other departments. Putting it differently, Shri Agrawal submits that the learned Collector has formed opinion on the basis of discussion held with the Executive Engineer, PHE, Officers of Revenue and other departments. By placing reliance on AIR 1957 SC 521 , Lila Vati Bai v. State of Bombay, Shri Agrawal contends that such an opinion formed by the Collector is impermissible. He submits that the opinion should be based on subjective satisfaction of the Collector and not based on any objective material. In addition, he relied on judgment on 2006(11) MPWN 11, Rajendra Patidar v. Collector, Dhar and others. Lastly, he contended that the validity of an order of the statutory authority needs to be tested on the basis of the reasons assigned therein. It is submitted that the validity of the impugned order dated 1-1-2016 is required to be tested on the basis of reasons assigned in this order. This cannot be substituted by assigning reason by filing counter affidavit before this Court. Reliance is placed on the judgment of Supreme Court in AIR 1978 SC 851 , Mohinder Singh Gill and another v. Chief Election Commissioner. 3. Per contra, Shri Pushpendra Yadav, learned Government Advocate supported the order. He submits that a definite opinion is formed by the Collector in consonance with the requirement of section 3 of the Adhiniyam. Reliance is placed on the judgment of Supreme Court in AIR 1978 SC 851 , Mohinder Singh Gill and another v. Chief Election Commissioner. 3. Per contra, Shri Pushpendra Yadav, learned Government Advocate supported the order. He submits that a definite opinion is formed by the Collector in consonance with the requirement of section 3 of the Adhiniyam. It is submitted that the water level of various Blocks in Rewa District is alarming which can be gathered from a plain reading of Annexure-R/1. He further submits that the State Government way back on 9-10-2015 declared that Rewa is a drought affected area. Thus no fault can be found in the order of the Collector. No other point is pressed by the learned counsel for the parties. 4. I have heard learned counsel for the parties and perused the record. 5. Section 2(c) of the Adhiniyam defines “water scarcity area”. The said area means the area declared as water scarcity area under section 3. Section 3 reads as under: 3. Declaration of water scarcity area. - If the Collector is of opinion that it is necessary or expedient so to do - (a) for maintaining or increasing supply of water to the public; or (b) for securing its equitable distribution; or (c) for securing water to meet the need of the public, for domestic purposes, he may, by order, declare such area of the district for such period as may be specified in such order to be water scarcity area and thereupon the provisions of this Act shall apply to such area during the operation of the said order. (Emphasis supplied) 6. The bone of contention of Shri Agrawal is that the opinion can be formed by the Collector on the basis of subjective satisfaction and no objective material discussion etc. can be a reason/foundation for forming such opinion. I do not find any merit in the said contention. Formation of opinion is part of and outcome of thought process. The human mind and thought process is a complex mechanism. It cannot be compartmentalized nor such compartmentalization can be separated and examined in a judicial review. Section 3 only envisages that if the Collector is of the opinion then he may pass appropriate order. In my view, such opinion can be formed on the basis of relevant material, documentary evidence, Feedback from other Government Officers etc. It cannot be compartmentalized nor such compartmentalization can be separated and examined in a judicial review. Section 3 only envisages that if the Collector is of the opinion then he may pass appropriate order. In my view, such opinion can be formed on the basis of relevant material, documentary evidence, Feedback from other Government Officers etc. If the Collector forms an opinion on the basis of such feedback and other documents, it cannot be said that such opinion is not in consonance with section 3 of the Adhiniyam. Needless to mention that if there exists any water scarcity in the District, the Collector gets feedback from his subordinate Officers, experts etc. Since the State Government has already declared the District Rewa as drought affected area by notice dated 9-10-2015 (Annexure-R/2), it cannot be said that the order of the Collector is without any basis or justification. 7. The matter can be viewed from another angle. The Collector being head of the District must be aware of the order of the State Government dated 9-10-2015 (Annexure-R/2). This order must be there in his memory and this order can also be a reason for passing of the impugned order. Whether or not this order is mentioned in the impugned order, it hardly makes any difference. 8. Shri Agrawal contended that opinion can be formed only on subjective satisfaction. If the gravity of drought situation or alarming water level is within the knowledge of the Collector because of the opinion gathered from various sources, he can always take a decision and form the opinion on that. No thread splitting or compartmentalization of thought process is permissible. On the basis of said analysis and in the peculiar facts and circumstances of this case, the judgment of the Apex Court in Lila Vati Bai (supra) is of no assistance to the petitioner. Similarly, the order passed by this Court in Rajendra Patidar (supra) is of no help to the petitioner. It is totally based on a different facts and circumstances. The said judgment has no applicability on the facts and circumstances of the present case. 9. On the basis of the aforesaid analysis, in my view, the Collector has not committed any error in passing the impugned order dated 1-1-2016. The said order is passed in larger public interest. Thus I find no reason to interfere with the said order. The said judgment has no applicability on the facts and circumstances of the present case. 9. On the basis of the aforesaid analysis, in my view, the Collector has not committed any error in passing the impugned order dated 1-1-2016. The said order is passed in larger public interest. Thus I find no reason to interfere with the said order. The order dated 1-1-2016 is upheld. The petition being devoid of merit is dismissed. No cost.