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2019 DIGILAW 328 (BOM)

Vikas Panjabrao Mathane v. State of Maharashtra

2019-02-04

MANISH PITALE

body2019
JUDGMENT : Manish Pitale, J. 1. Rule. Rule made returnable forthwith. Heard finally by consent of the learned Counsel appearing for the parties. 2. By this Writ Petition, the petitioner has challenged order dated 04.06.2018, passed by respondent no. 2 Sub-Divisional Officer, Achalpur, whereby the said respondent has allowed the application filed by respondent no. 3 and directed that the bore well dug by the petitioner in his field in village Belmandali in field Survey No. 18/3/E be closed and further that action be taken against him under Section 52 of the Maharashtra Groundwater (Development and Management) Act, 2009 [for short, Act of 2009]. 3. The respondent no. 3 submitted an application/complaint before respondent no. 2 Sub-Divisional Officer, stating that the petitioner had dug the aforesaid bore well in the field adjoining the field of respondent no. 3, due to which a well in the field of respondent no. 3 had been rendered dry, causing loss to the Orange fruit trees standing in his field. On the basis of the said complaint submitted by respondent no. 3, respondent no. 2 Sub-Divisional Officer asked the Talathi to carry out spot inspection and submit report. Accordingly, the Talathi submitted report to respondent no. 2 Sub-Divisional Officer, stating that the bore well dug by the petitioner was at a distance of about 240 ft from the well of respondent no. 3 in his field and that village Belmandali was classified as "critical" in terms of availability of water. It was further stated in the report that the petitioner had not taken any permission before digging the bore well in his field. The respondent no. 2 Sub-Divisional Officer passed the impugned order on 04.06.2018. In the said order, respondent no. 2 Sub-Divisional Officer referred to Notification dated 11.02.2013, issued by the District Magistrate, Amravati and also to a letter dated 07.04.2018, received from the Senior Geologist of the Groundwater Resources Department, wherein it had been stated that the Notification dated 11.02.2013, had been issued under Section 8(2) of the Act of 2009. The respondent no. 2 Sub-Divisional Officer, in the impugned order, came to a specific conclusion that as per the aforesaid Notification dated 11.02.2013, issued by the District Magistrate, there was ban on digging wells in both the "critical" and "over-exploited" villages in mini watershed areas. The respondent no. 2 Sub-Divisional Officer, in the impugned order, came to a specific conclusion that as per the aforesaid Notification dated 11.02.2013, issued by the District Magistrate, there was ban on digging wells in both the "critical" and "over-exploited" villages in mini watershed areas. After taking into consideration the fact, that the bore well dug by the petitioner was at a distance of only 240 ft from the well of respondent no. 3, respondent no. 2 Sub-Divisional Officer, allowed the application of respondent no. 3 and directed that the bore well dug by the petitioner shall be closed as it was found to be illegal and further that action under Section 52 of the Act of 2009, be undertaken against the petitioner. 4. Mr. P.A. Kadu, learned Counsel appearing for the petitioner, submitted that the impugned order passed by respondent no. 2 Sub-Divisional Officer was unsustainable, firstly, because it had misread the Notification dated 11.02.2013, issued by the District Magistrate, Amravati, because under the said Notification there was ban on digging of wells only in the villages classified as "over-exploited" in mini watershed and not those classified as "critical." Secondly, it was submitted that the Notification dated 11.02.2013, had been issued under Section 6 of the Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993 (for short, Act of 1993), which specifically pertained only to areas that were classified as "over-exploited." Since the Notification dated 11.02.2013, was issued under the Act of 1993, reference made to Section 8(2) of the Act of 2009 in the impugned order by the respondent no. 2 Sub-Divisional Officer, was wholly misplaced. Thirdly, it was pointed out that the Act of 2009, was first published in the Maharashtra Gazette on 03.12.2013, thereby showing that Notification dated 11.02.2013, could never have been issued under the said Act of 2009. Fourthly, it was submitted that a perusal of the provisions of the Act of 2009, particularly Section 8 and the definition clauses, demonstrated that respondent no. 2 Sub-Divisional Officer could not have exercised power under Section 28 of the Act of 2009 and yet in the impugned order, the respondent no. 2 Sub-Divisional Officer had specifically exercised power under Section 28(1)(j) of the Act of 2009, to hold against the petitioner. On this basis, it was submitted that the impugned order was wholly unsustainable and that it deserved to be set aside. 5. 2 Sub-Divisional Officer had specifically exercised power under Section 28(1)(j) of the Act of 2009, to hold against the petitioner. On this basis, it was submitted that the impugned order was wholly unsustainable and that it deserved to be set aside. 5. On the other hand, Mr. K.D. Badode, learned Counsel appearing for the contesting respondent no. 3, submitted that respondent no. 2 Sub-Divisional Officer was justified in passing the impugned order, because it was established on record that due to digging of bore well by the petitioner, the well of respondent no. 3 situated only at a distance of about 240 ft had been rendered dry, causing immense loss to the Orange fruit trees standing in his field. It was submitted that under Section 8(2) of the Act of 2009, the authorities were empowered to prohibit digging of deep wells in both notified and non-notified areas and that therefore, the digging of bore well of the petitioner without seeking prior permission of the competent authority was completely illegal and that therefore, the impugned order was justified. The learned Counsel submitted that as long as the village in question i.e. the village of Belmandali was classified even in the category of "critical" in mini watershed by Notification dated 11.02.2013, the ban was also applicable to the field of the petitioner and that therefore, the impugned order was justified. 6. Mr. Chutke, learned AGP, has appeared on behalf of respondent nos. 1 and 2. The learned AGP referred to the provisions of the Act of 1993 and the Act of 2009 and submitted that there was power with the competent authority to direct ban on digging of wells in "overexploited" as well as "critical" areas and that therefore, the impugned order was justified. 7. Heard Counsel for the parties and perused the record. A perusal of the impugned order dated 04.06.2018, shows that while passing the order against the petitioner, respondent no. 2 Sub-Divisional Officer has specifically referred to exercise of power under Section 28(1)(j) of the Act of 2009. Therefore, respondent no. 2 Sub-Divisional Officer has proceeded on the basis that the Act of 2009, would apply to the facts of the present case. Secondly, respondent no. 2 Sub-Divisional Officer has specifically referred to exercise of power under Section 28(1)(j) of the Act of 2009. Therefore, respondent no. 2 Sub-Divisional Officer has proceeded on the basis that the Act of 2009, would apply to the facts of the present case. Secondly, respondent no. 2 Sub-Divisional Officer has heavily relied on Notification dated 11.02.2013, issued by the District Magistrate, Amravati, as also the interpretation of the said Notification given by the Senior Geologist in letter dated 07.04.2018, which stated that there was a ban in existence, whereby digging of deep wells was prohibited, when the petitioner dug the bore well some time in the year 2018. On this basis the application/complaint of respondent no. 3 was allowed. In order to examine as to whether the impugned order could be sustained, it would be necessary to refer to the provisions of the Act of 1993 as well as the Act of 2009. The relevant provisions of the Act of 1993 are as under: "6. Declaration of over-exploited watershed - the appropriate authority may, on the advice of the Technical Officer, declare a watershed as over-exploited watershed. 7. Prohibition of sinking of wells in overexploited watershed - (1) Notwithstanding anything contained in the Maharashtra Land Revenue Code, 1966 (Mah. XLI of 1966), or any other law for the time being in force, and having regard to the prime need of water for drinking water purposes of the human beings and in the interests of the general public to have the supply of requisite quantity, of water for drinking water purposes from the public drinking water source in the overexploited watershed, no person shall, without the permission of the appropriate authority, sink well within the area of an over-exploited watershed: Provided that, the provisions of sub-section (1) shall not apply to the sinking of a well on behalf of the State Government or a local authority for being used as a public drinking water source. (2) An application for permission under sub-section (1) shall be made to the appropriate authority in such form and accompanied by such fee as may be prescribed. (2) An application for permission under sub-section (1) shall be made to the appropriate authority in such form and accompanied by such fee as may be prescribed. (3) Every permission granted under this section shall be subject to:- (a) the condition that the appropriate authority may, for reasons to be recorded in writing, by order prohibit, restrict or regulate the extraction of water from such well for such period as maybe specified in such order, if, in his opinion, it is necessary to do so in the public interest. (b) such other conditions and restrictions as may be prescribed." 8. The following Rules of the Rules framed under the Act of 1993, are also relevant:- "2. Definitions - Unless the context otherwise requires:- (1) (a) "Act" means the Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993. (b) "section" means a section of the Act. (c) "mini watershed" means a geohydrological unit or an area that drains at common point. Explanation - Where first two order channels join, a channel segments of order two is formed, where two of the second order segments join, a segment of order three is formed. The trunk stream upto the third order through which all discharge of water and sediments passes and subsequently joins fourth, fifth or higher order drainage, thus forms a mini-water shed as denied. (d) "The sinking of well" means with all its grammatical variations and cognate expression in relation to a well includes any drilling, boring or digging of new well, deepening carried out to an existing well. (2) Words and expressions used in the Act but not defined in these rules shall have the meanings respectively assigned to them in the Act. Appendix "D" [See Rules 8(2), read with section 6] Declaration of over exploited watershed Read- Report of the Technical Officer Dated............................. (Designation) On the basis of the report received from the Technical Officer, I have come to conclusion that the villages comprising in the mini watershed as mentioned in the enclosed list are over-exploited. In view of this, I.............the Appropriate Authority.........by virtue of the power vested under section 6 of the Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993, declare the mini watershed described in the appended. Statement as over-exploited watershed. Sinking of new wells as well as change of more of withdrawal from the existing irrigation well is prohibited. In view of this, I.............the Appropriate Authority.........by virtue of the power vested under section 6 of the Maharashtra Groundwater (Regulation for Drinking Water Purposes) Act, 1993, declare the mini watershed described in the appended. Statement as over-exploited watershed. Sinking of new wells as well as change of more of withdrawal from the existing irrigation well is prohibited. Place: Date: S. No. List of over-exploited mini watershed and village therein Elementary watershed number Mini water shed number declared as over exploited Name of village coming in the mini watershed declared as over exploited Census Code Number of Village (1) (2) (3) (4) (5) The relevant provision of the Act of 2009 are:- 2. Definitions:- (xv) "non-notified areas" means areas other than the notified areas. (xvi) "notified areas" means areas included in overexploited or critical or water quality affected watershed or aquifer or any such categorization as per the groundwater estimations carried out, based on the guidelines issued, from time to time, by the Central Government and State Government, which have been notified by the State Authority for regulation of extraction of groundwater after following procedure indicated in section 4. (xx) "Public Drinking Water Source" means a source from which the State Government or a local authority or such other authority as the State Government may, by notification in the Official Gazette specify, provides water to the public and includes such well, borewell, tubewell or any other drinking water source as may be notified by the District Authority. (xxi) "Public Water Supply System" means the structure relating to a public drinking water source, including conveying pipelines, storage reservoir, stand posts, cisterns, hand pump, power pump and all other materials connected thereto, through which water is supplied for drinking water purposes. (xxviii) "State Authority" means the State Ground Water Authority established under section 3. 28. Powers of District Authority to enquire or implement or enforce the decisions of Watershed Water Resources Committee - (1) The District Authority shall enforce the decisions of the Watershed Water Resources Committee. (xxviii) "State Authority" means the State Ground Water Authority established under section 3. 28. Powers of District Authority to enquire or implement or enforce the decisions of Watershed Water Resources Committee - (1) The District Authority shall enforce the decisions of the Watershed Water Resources Committee. Whenever it is necessary to make an inquiry or to implement or enforce any decisions under this Act, in connection with the protection of a Public Drinking Water Source or with the maintenance of a public water-supply system, the District Authority or any officer duly authorized by it in this behalf, may, after giving prior notice to the owner or occupier of any land:- (a) undertake surveys or take levels thereon. (b) conduct pumping tests and geophysical surveys. (c) install and maintain water level recorder and water gauges on the well. (d) enter any property including Government owned, with the right to investigate and make any measurements concerning the land or the water located on the surface or underground. (e) inspect the well, which has been or is being sunk with or without the permission of the Watershed Water Resources Committee and the soils and other materials excavated therefrom and to take specimens of such soils or other materials or of water extracted from such wells for testing the quality and contamination. (f) by order, in writing, require the person sinking a well to keep and preserve, in the prescribed manner, the specimens of soils or any material excavated therefrom for such period not exceeding three months from the date of completion or abandonment of the work as may be specified by the District Authority and such person shall comply with such requisition. (g) inspect and take copies of the relevant records or documents and conduct inquiry for obtaining any information required for carrying out the purposes of this Act. (h) order the user of groundwater to install at the expenses of District Authority such measuring device on any groundwater abstraction structures and monitor the quantity pumped. (i) seize any equipment or device utilised for illegal sinking or construction and demolish the illegal work executed. (h) order the user of groundwater to install at the expenses of District Authority such measuring device on any groundwater abstraction structures and monitor the quantity pumped. (i) seize any equipment or device utilised for illegal sinking or construction and demolish the illegal work executed. (j) direct any user of groundwater who does not comply with the provisions of this Act and rules framed thereunder to close down the extraction of groundwater, disconnection of its power supply and seal any hydraulic work found to be illegal according to the provisions of this Act and the rules framed thereunder. 52. Offences and penalties - Whoever contravenes or fails to comply with any of the provisions of this Act or any rules made thereunder or obstructs the State Authority, the District Authority, the Watershed Water Resources Committee, Panchayat, Panchayat Samiti and urban local body, the Groundwater Surveys and Development Agency and any person authorised to exercise any of the powers under this Act, shall on conviction be punished:- (i) for the first offence, with fine which may extend to rupees ten thousand. (ii) for the subsequent offence, with imprisonment for a term which may extend to six months, or with fine which may extend to rupees twenty-five thousand or with both." 9. A crucial fact in the present case is, that the Act of 2009 received assent of the President of India on 22.11.2013 and it was published in the Maharashtra Government Gazette on 03.12.2013. In other words, the Act of 2009 came into force on 03.12.2013. The said fact assumes importance, because the basis on which respondent no. 2 Sub-Divisional Officer has passed the impugned order is that the Notification dated 11.02.2013, issued by the District Magistrate, Amravati, was by exercising power under Section 8(2) of the Act of 2009. When the aforesaid Act of 2009 came into force on 03.12.2013, there was no question of the Notification dated 11.02.2013 being issued under the said Act by the District Magistrate, Amravati. 10. That apart, a perusal of the said Notification itself shows that it was issued in the format as per the above quoted Appendix-D to the Rules framed under the Act of 1993. 10. That apart, a perusal of the said Notification itself shows that it was issued in the format as per the above quoted Appendix-D to the Rules framed under the Act of 1993. The said Notification specifically refers to Section 6 of the Act of 1993 and then states that a list of villages was being annexed to the Notification wherein they were classified in the mini watershed as "over-exploited" or "critical". It is further stated in the Notification that there would be ban on the digging of wells etc. as per the power exercised under Section 6 of the Act of 1993 read with Rule 8 of the Rules framed under the said Act. Thus, there cannot be any dispute about the fact that the Notification dated 11.02.2013, was issued by the District Magistrate, Amravati, by exercising power under Section 6 of the Act of 1993 read with Rule 8(2) of the Rules framed under the said Act and as per Format given in 'D' Appendix in the said Rules. The format specifically refers to mini watershed. 11. Section 6 of the said Act pertains to declaration of overexploited watershed. Rule 2(c) of the Rules framed under the Act of 1993 defines "mini watershed" and Rule 8 of the said Rules provides for the method and the procedure whereby it would be concluded as to whether a mini watershed was "over-exploited." A perusal of the list of villages annexed to the Notification dated 11.02.2013 shows that village of Belmandali, with which we are concerned, was specifically classified as covered under the mini watershed which was found to be "critical." Thus, the mini watershed with which the village of Belmandali was concerned, was classified as "critical" and not classified as "over-exploited." Once it is found that mini watershed of the concerned village under Section 6 read with Rule 8(2) of the said Rules was classified only as "critical" and not as "over-exploited", the ban contemplated under the Notification dated 11.02.2013, would not apply to the field of the petitioner, admittedly located in the village of Belmandali. Therefore, the reading of the Notification dated 11.02.2013 by the respondent no. 2 Sub-Divisional Officer in the impugned order, is found to be erroneous. Apart from this, respondent no. Therefore, the reading of the Notification dated 11.02.2013 by the respondent no. 2 Sub-Divisional Officer in the impugned order, is found to be erroneous. Apart from this, respondent no. 2 Sub-Divisional Officer has proceeded on the basis that as per Notification dated 11.02.2013, there was a ban on digging of wells in both "over-exploited" as well as "critical" villages in the mini watershed. This is obviously a wrong reading of the said Notification because the ban could be imposed only in villages classified as "over-exploited" under Section 6 of the Act of 1993 read with Rule 8 of the Rules framed thereunder. 12. The impugned order also specifically states that power was being exercised under Section 28(1)(j) of the Act of 2009. This is found to be erroneous on the face of the record because, as found herein above, the Notification on which respondent no. 2 Sub-Divisional Officer primarily relied, was never issued under the Act of 2009 and for exercise of power under Section 28 of the Act of 2009, there ought to have been satisfaction of the requirements under the said provision. A perusal of the above quoted provision of Act of 2009, shows that power can be exercised by the District Authority to enforce the decisions of the Water Resources Committee and also to make enquiry or implement and enforce decisions under the Act in connection with the protection of a Public Drinking Water Source and/or of a Public Water Supply System. The definitions of "Public Drinking Water Source" and "Public Water Supply System" under Section 2(xx) and 2(xxi) of the Act of 2009, show that the bore well that was dug by the petitioner certainly was not covered under the said two expressions. Therefore, the respondent no. 2 Sub-Divisional Officer could not have exercised power under Section 28 of the Act of 2009, in the context of the bore well dug by the petitioner, on a complaint made by respondent no. 3 13. Reliance placed on Section 8 of the Act of 2009 is also misplaced, because under the said provision, the State Authority as defined under Section 2(xxviii) of the Act of 2009, has the power to prohibit digging of deep well in notified and non-notified areas. Sub-Section (4) of Section 8 of the Act of 2009, gives power to the State Authority to direct the District Authorities to exercise such power of prohibition. Sub-Section (4) of Section 8 of the Act of 2009, gives power to the State Authority to direct the District Authorities to exercise such power of prohibition. But, the State Authority as defined under Section 2(xxviii) of the Act of 2009, means the State Ground Water Authority established under Section 3 of the Act of 2009. In the present case, the impugned order was neither passed by the State Authority i.e. the State Ground Water Authority established under Section 3 of the Act or 2009 nor was it issued on a direction of such State Authority, as contemplated under Section 8 of the Act of 2009. Therefore, by no stretch of imagination, respondent no. 2 Sub-Divisional Officer could have exercised power under Section 28 of the Act of 2009 against the petitioner, particularly when the Notification dated 11.02.2013, which was the main stay of the impugned order passed by respondent no. 2 Sub-Divisional Officer, was not issued under the Act of 2009. 14. In the light of the above, it becomes clear that the impugned order is rendered unsustainable. The respondent no. 2 Sub-Divisional Officer could not have held that the bore well dug by the petitioner in village Belmandali was illegal and that it was required to be immediately closed. In the impugned order, the respondent no. 2 Sub-Divisional Officer has also directed action to be taken against the petitioner under Section 52 of the Act of 2009. A perusal of the above quoted Section 52 of the Act of 2009, shows that it pertains to offences and penalties and that the first offence would result in imposition of fine extending up to Rs. 10,000/- and for the subsequent offence punishment could be imposed of imprisonment for a term extending up to six months or with fine extending up to Rs. 25,000/-. The facts of the present case show that respondent no. 2 Sub-Divisional Officer erred in exercising power under Section 28 (1)(j) of the Act of 2009 for taking action under Section 52 of the Act of 2009. A proper reading of the Act of 1993, Rules framed thereunder and the Act of 2009 in the context of Notification dated 11.02.2013 issued by the District Magistrate, would show that the impugned order passed by respondent no. 2 Sub-Divisional Officer is wholly unsustainable and that it deserves to be quashed and set aside. 15. A proper reading of the Act of 1993, Rules framed thereunder and the Act of 2009 in the context of Notification dated 11.02.2013 issued by the District Magistrate, would show that the impugned order passed by respondent no. 2 Sub-Divisional Officer is wholly unsustainable and that it deserves to be quashed and set aside. 15. In the light of the above, the Writ Petition is allowed. The impugned order dated 04.06.2018, passed by respondent no. 2 Sub-Divisional Officer, is quashed and set aside. 16. Rule is made absolute in above terms. No costs.