Bench of this Court in the aforesaid judgment in PIL No.173 of 2013
and other connected matters had an occasion to consider all the
relevant laws regarding regulation of water supply in the State. In the
said judgment, in Paragraph 188, the Division Bench has referred to
Clause 4.0 of the Maharashtra State Water Policy, 2003. Clause 4.0 of
the Maharashtra State Water Policy, 2003 reads thus:
“4.0 Priority of Water UsageWater
resources shall be allocated in accordance with
the following general principles:
(a) Domestic use for drinking, cooling, hygiene and
sanitation needs including livestock;
(b) Industrial, commercial use and agrobased
industrial use;
(c) Agriculture and hydropower;
(d) Environment and recreation uses;
(e) All other uses.”
9. In Paragraphs 190 and 191, the Division Bench proceeded
to observe thus:
“190. At highest, the use of water for Kumbhmela
and for other religious purposes will be
covered by the last category “e”. Therefore,
according to the Water Policy of the State
Government, if sufficient water cannot be
allocated for usages in categories (a) to (d)
in that order of preference, there cannot be
any allocation of water for Kumbhmela and
other religious purposes. In the National
Water Policy of 2012, in Paragraph 1.2, it is
noted that large parts of India have already
become water stressed as the issues related to
water governance have not been addressed
adequately. It is noted in the said policy that the
mismanagement of water resources has led to a
critical situation in many parts of the country.
191. Needless to add that in case of scarcity or
hydrological drought, in view of Clause (c) of
Section 11 of the said Act of 2005, the water
cannot be released from the reservoirs by the
State for religious ceremonies or religious
objects without the Regulatory Authority
deciding the issue of priority of equitable
distribution of water. Therefore, in case of
scarcity or hydrological drought, the State is
not entitled to release water from the
reservoirs for such purposes without
adjudication being made by the Regulatory
Authority under Clause (c) of Section 11 of
the said Act of 2005.”
(emphasis added)
10. The Division Bench has categorically held that if sufficient
water cannot be allocated for usages in Categories (a) to (d) in that
order of preference, there cannot be any allocation in those categories
of water for Kumbhmela or for other religious purposes. Further, it is
held that in case of scarcity or hydrological drought, the State is not
entitled to release water from the reservoirs in the State for such
religious purposes without an adjudication being made by the
Regulatory Authority under Clause (c) of Section 11 of the said Act of
2005.
11. We have carefully perused the findings recorded by the
Chief Secretary. In Paragraph 15 of the impugned order, the Chief
Secretary has referred to the categories (a) to (e) which are quoted
above. In Paragraph 16, he observed that 60 to 70 lakhs pilgrims were
likely to participate in Shahi snan in the Kumbhmela on 29th August
2015, 13th September 2015 and 18th September 2015. Therefore, 4.50
TMC water was proposed to be released from Gangapur Dam. He
observed that if the water was not released, there might have been a
possibility of epidemic and serious hygiene problems. He has,
therefore, come to a conclusion that the case was governed by category
(a). In our view, even assuming that there was a possibility of law and
order problem being created if sufficient water was not released for the
Kumbhmela, by no stretch of imagination, the release of water to
prevent such law and order situation was covered by any of the
categories (a) to (d) of clause 4.0 of the State Water Policy. Though it is
claimed that the water actually released for Kumbhmela for Shahi snan
(holy bath) was less than what was planned, the fact remains that in
the year 2015-2016 when there was a hydrological drought, the water
was released by the State Government for the benefit of Shahi snan in
breach of its own water policy. We are not on the issue of release of
water for drinking purposes for the benefit of pilgrims as it covered by
category (a). By no stretch of imagination, the release of water for
Shahi snan will be covered by Category (a). Therefore, release of water
for Shahi snan was completely illegal. The State was bound by its own
water policy and the State could not have acted contrary to its own
binding policy. We are not able to accept the strong justification tried
to be offered by the learned Government Pleader for supporting the
impugned order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
PUBLIC INTEREST LITIGATION NO.154 OF 2015
Hiralal Motilal Desarda.
Vs
The State of Maharashtra and Others
CORAM : A.S. OKA & A.A.SAYED, JJ
DATED : 22ND DECEMBER 2016
1. The submissions were heard in the afternoon on 27th
October 2016 which was the last working day before Diwali Vacation.
We have perused the orders passed in this Public Interest Litigation
from time to time. Today, the matter was listed for two purposes. One
was for dealing with the challenge to the order dated 28th January 2016
passed by the Chief Secretary of the State of Maharashtra. The second
was to consider certain issues raised by the Petitioner appearing in
person.
2. Essentially, this PIL was filed for inviting attention of the
Court to the decision of the State Government of releasing water from
Gangapur Dam Complex in the river Godavari for the purposes of
Kumbhmela which was held in the year 2015. The contention raised in
the Petition was that the said action was completely illegal.
3. The Petitioner is a Professor of Economics who is associated
with Gokhale Institute of Politics and Economics at Pune and is involved
in several social projects. The Petitioner has been activist who has
raised various issues concerning environment and water management.
He has been espousing the cause of droughtprone areas in the State of
Maharashtra for the last several years.
4. The first effective order which is passed in this Petition is of
14th September 2015. The State Government was directed to revisit the
entire issue of diversion of water for shahisnan(holy baths) during
Kumbhmela . In the order dated 22nd September 2015, this Court noted
shocking state of affairs that for washing away the dirt created in the
river by holy baths during the Kumbhmela, a substantial quantity of
water was to be released from Gangapur Dam. It is under this order
that this Court directed the Chief Secretary of the State of Maharashtra
to inquire into the legality and validity of the decision taken to release
the water from Gangapur Dam Complex only for the purposes of
facilitating Shahi snan. The Chief Secretary of the State of
Maharashtra was directed to examine the legality of the decision taken
by the Collector and other officers for releasing the water for Shahi
snan. He was directed to examine whether the decision was contrary to
the existing policy and the Government Resolution dated 7th September
2015 in light of the severe drought conditions. We may note here that
the Government Resolution dated 7th September 2015 is to the effect
that considering the current situation, storage of water in all areas shall
be preserved and top priority should be given to its use as a drinking
water. The Chief Secretary of the State of Maharashtra passed an order
dated 28th January 2016 holding that the action of release of water for
Kumbhmela was lawful and was not contrary to the policy of the State
Government.
5. It is to be noted here that by an order dated 22nd September
2015, the State Government was restrained from releasing the water
from Gangapur Dam Complex for the purposes of facilitating Shahi
snan and holy bath in Kumbhmela without seeking leave of the Court.
On 22nd December 2015, this Court appointed Shri A.A.Kumbhakoni,
Senior Advocate, as Amicus Curiae. By an order dated 18th January
2016, this Court passed a specific order directing the State Government
to ensure that no further water is released from Gangapur Dam
Complex for the religious purposes or for religious festivals without
seeking leave of this Court. Under the order dated 18th January 2016, a
direction was issued to the State Government to make a statement
regarding the outer limit within which the exercise of framing Rules
under the Maharashtra Water Resources Regulatory Authority Act, 2005
(for short “MWRRA Act”) will be completed. The order dated 30th
March 2016 directs the State Government to prepare a framework of a
policy for resolving the water crisis in the State. On 12th April 2016,
further order was passed by a Division Bench of this Court observing
that the State Government has to address itself to the problem of water
scarcity. Thereafter, there were certain orders regarding release of
water with which we are not concerned. There were certain directions
issued by this Court for dealing with the situation arising at a relevant
time.
6. Firstly, we deal with the issue of legality and validity of the
order dated 28th January 2016 passed by the Chief Secretary of the
State of Maharashtra.
7. The learned senior counsel Shri A.A. Kumbhakoni, who is
appointed as Amicus Curiae, has invited our attention to the order
dated 28th January 2016 passed by the Chief Secretary of the State
Government as per the directions issued on 14th October 2015. He has
pointed out that the decision taken by the Chief Secretary which is
specifically impugned by amending the Petition is completely contrary
to the Government decision dated 7th September 2015 as well as the
State Government's Water Policy. He relied upon the judgment and
order dated 23rd September 2016 passed by a Division Bench of this
Court in PIL No.173 of 2013 and other connected matters. He invited
our attention to the finding recorded in Paragraph 188 of the said
judgment and order which holds that if sufficient water cannot be
allocated to the usages in higher categories (a) to (d) in Clause 4.0 of
the Maharashtra State Water Policy, 2003, there cannot be any
allocation of water for Kumbhmela and other religious purposes. He
urged that by no stretch of imagination, the release of water for
Kumbhmela can fall in category (a) of Clause 4.0 of the Maharashtra
State Water Policy, 2003. He submitted that apart from the fact that the
interpretation put to Clause (a) is completely erroneous, the impugned
order of the Chief Secretary is contrary to the judgment and order
passed by a Division Bench of this Court in Public Interest Litigation
No.173 of 2013 and other connected matters. The learned Government
Pleader supported the impugned order of the Chief Secretary of the
State of Maharashtra.
8. We have carefully considered the submissions. A Division
Bench of this Court in the aforesaid judgment in PIL No.173 of 2013
and other connected matters had an occasion to consider all the
relevant laws regarding regulation of water supply in the State. In the
said judgment, in Paragraph 188, the Division Bench has referred to
Clause 4.0 of the Maharashtra State Water Policy, 2003. Clause 4.0 of
the Maharashtra State Water Policy, 2003 reads thus:
“4.0 Priority of Water UsageWater
resources shall be allocated in accordance with
the following general principles:
(a) Domestic use for drinking, cooling, hygiene and
sanitation needs including livestock;
(b) Industrial, commercial use and agrobased
industrial use;
(c) Agriculture and hydropower;
(d) Environment and recreation uses;
(e) All other uses.”
9. In Paragraphs 190 and 191, the Division Bench proceeded
to observe thus:
“190. At highest, the use of water for Kumbhmela
and for other religious purposes will be
covered by the last category “e”. Therefore,
according to the Water Policy of the State
Government, if sufficient water cannot be
allocated for usages in categories (a) to (d)
in that order of preference, there cannot be
any allocation of water for Kumbhmela and
other religious purposes. In the National
Water Policy of 2012, in Paragraph 1.2, it is
noted that large parts of India have already
become water stressed as the issues related to
water governance have not been addressed
adequately. It is noted in the said policy that the
mismanagement of water resources has led to a
critical situation in many parts of the country.
191. Needless to add that in case of scarcity or
hydrological drought, in view of Clause (c) of
Section 11 of the said Act of 2005, the water
cannot be released from the reservoirs by the
State for religious ceremonies or religious
objects without the Regulatory Authority
deciding the issue of priority of equitable
distribution of water. Therefore, in case of
scarcity or hydrological drought, the State is
not entitled to release water from the
reservoirs for such purposes without
adjudication being made by the Regulatory
Authority under Clause (c) of Section 11 of
the said Act of 2005.”
(emphasis added)
10. The Division Bench has categorically held that if sufficient
water cannot be allocated for usages in Categories (a) to (d) in that
order of preference, there cannot be any allocation in those categories
of water for Kumbhmela or for other religious purposes. Further, it is
held that in case of scarcity or hydrological drought, the State is not
entitled to release water from the reservoirs in the State for such
religious purposes without an adjudication being made by the
Regulatory Authority under Clause (c) of Section 11 of the said Act of
2005.
11. We have carefully perused the findings recorded by the
Chief Secretary. In Paragraph 15 of the impugned order, the Chief
Secretary has referred to the categories (a) to (e) which are quoted
above. In Paragraph 16, he observed that 60 to 70 lakhs pilgrims were
likely to participate in Shahi snan in the Kumbhmela on 29th August
2015, 13th September 2015 and 18th September 2015. Therefore, 4.50
TMC water was proposed to be released from Gangapur Dam. He
observed that if the water was not released, there might have been a
possibility of epidemic and serious hygiene problems. He has,
therefore, come to a conclusion that the case was governed by category
(a). In our view, even assuming that there was a possibility of law and
order problem being created if sufficient water was not released for the
Kumbhmela, by no stretch of imagination, the release of water to
prevent such law and order situation was covered by any of the
categories (a) to (d) of clause 4.0 of the State Water Policy. Though it is
claimed that the water actually released for Kumbhmela for Shahi snan
(holy bath) was less than what was planned, the fact remains that in
the year 20152016 when there was a hydrological drought, the water
was released by the State Government for the benefit of Shahi snan in
breach of its own water policy. We are not on the issue of release of
water for drinking purposes for the benefit of pilgrims as it covered by
category (a). By no stretch of imagination, the release of water for
Shahi snan will be covered by Category (a). Therefore, release of water
for Shahi snan was completely illegal. The State was bound by its own
water policy and the State could not have acted contrary to its own
binding policy. We are not able to accept the strong justification tried
to be offered by the learned Government Pleader for supporting the
impugned order.
12. Therefore, for the reasons which we have set out above, the
order passed by the Chief Secretary on 28th January 2016 will have to
be set aside and it will have to be held that the release of water from
Gangapur Dam Complex only to facilitate Shahi snan (holy bath) was
contrary to the policy of the State Government and therefore, the same
is illegal.
13. Now the question is what are the other issues which need
to be gone into. As regards the implementation of the provisions of the
MWRRA Act and the Maharashtra Management of Irrigation Systems
by Farmers Act, 2005 very detailed directions have been already issued
in PIL No.173 of 2013 and other connected matters. Directions have
been issued for preparation of a Draft Integrated Water Plan. Directions
have been issued to formulate a State Water Resources Plan. This Court
has held that the water flowing through rivers and stored in reservoirs
vests in the State.
14. There is an affidavit filed by the Petitioner which is dated
1
st May 2016 raising several issues by the Petitioner appearing in
person. There is a note submitted by the learned senior counsel
appointed as the Amicus Curiae on Jalyukta Shivar Scheme and the so
called RiverRejuvenation Scheme adopted by the State Government.
Paragraphs 1 to 10 of the said note read thus:
“1. The geographical area of State of Maharashtra is
about 308 Lakh hectares. The State has five
major river basins and 25 subbasins. As per the
classification of Ground Water Survey and
Development Agency (GSDA) there are 1505
mega watersheds which in turn are divided into
microwatersheds. In all there are 60000 microwatersheds
of which 44000 are located in
cultivated area.
2. The longterm average annual precipitation of
the state is 1150 milimeter mm). Of course
there is a vast temporal and spatial variation
ranging from 4004000 mm. Nearly 2/3rd of the
State's Geographical area is under cultivation.
About 51 Lakh hectares land is officially under
the jurisdiction of forest department, albeit
there is no worthwhile tree cover on more than
50% of this area. In fact, out of total 35 districts
in State of Maharashtra, 20 districts have tree
cover of less 5%. Notably the good density
forest area for State as a whole is not more than
2%. For ecological stability and conservation of
land and water resources, at least 1/3rd of the
geographical area has to be under the forest
cover as per the internationally recognized
density tree and vegetation cover. As a matter
of fact, this is the rootcause of the water
scarcity and hydrological water famine that
Maharashtra is facing in the recent years.
Unless and until, we clearly grasp this fact, we
will not be able to address various issues
relating to scarcity of water in the State and
have a holistic view about the same.
3. As referred earlier, the water endowment of
Maharashtra is very sizable. The State receives
through the precipitation 380 billion cubic
meter (BCM) of water annually which is
adequate to meet all the needs of the present
population and ensure food, nutrition security
and well being including that of humans.
Hence, the State Government's effort to blame
the water scarcity on rainfall deficit or truant
played by monsoon is factually incorrect. It
needs to be grasped that even if the
precipitation is as low as 300 mm, which even
this relatively very deficient rainfall year has
provided to the majority of the 355 talukas in
Maharashtra. This means at 300 mm there is as
much as 3 million liter (30,00,000 ltrs.) water
per hectare; and taking into account the average
density of population in rural areas there are 2
or 3 persons per hectare. In short, there is at
every place at least a million liter water per
person and 3 million ltr. water per hectare
everywhere across the length and breadth of the
State of Maharashtra. As such, the present
water scarcity cannot be blamed (as the State
Government is trying to make believe) on
niggardliness of the nature but is a failure of
water resources management, policies and
programs perpetrated by the successive
Governments which is solely responsible for 'the
policyinduced water scarcity' that is causing
havoc to the life of millions of people and which
is manifested in the tragic farmer suicides.
4. It need not be emphasized that water is a
renewable natural resource in as much as, after
the rainfall, the runoff water recharges the
aquifer. This basic hydrological principle is not
known to the common people, particularly the
agriculturists, because in our country there is a
lack of water literacy. This has been the main
cause for ecological imbalance that has brought
to our door steps the situation in which we find
ourselves today. Unfortunately, the State
Government which is supposed to be the
custodian of these principles and hydrological
cycle, in recent times has taken steps to destroy
rather than preserve, if not enhance, the
ecological balance by taking such steps which
are more in the nature of kneejerk reactions
rather than long term policies.
5. Indisputably, 'drought' is a part of the
meteorological cycle but when it leads to
'hydrological famine' it is manmade and more
directly caused by the erroneous water resource
management policies and water project
planning process. By now, it is well known in
the public domain that the State of Maharashtra
has 35% of the large dams of the country. The
State has sunk nearly one Lakh Crore rupees in
building irrigation and other wateruse projects
during the past 50 years. Interestingly, alleged
multicrore scam is being currently investigated
by the Government agencies in the State. This
has led to very inefficient systems of water use
but it has been justified in the name of
providing drinking areas and industries.
Undeniably, this is the harsh reality adversely
affecting the rural and urban poor population in
Maharashtra.
6. Scientifically, to prevent erosion of the soil
caused due to faster runoff of the rain water, a
watershed is required to be treated starting with
ridgeline. All over the world in such cases
treatment starts from ridges by putting in place
trenches to prevent runoff of the rain water
from carrying with it huge quantity of soil.
Thereafter steps are required to be taken down
streams in the direction in which such runoff
water flows not only to prevent erosion of the
soil but also squander rain water.
7. The present state government has initiated a
program called as Jalyukt Shivar which is
designed to be executed in 5000 villages each
year. After the first year in 2014-2015 the
Government has chosen the next batch of the
nearly 6000 villages in the subsequent year.
This brief note tries to underline the need for
appropriate intervention by this Hon. Court and
direct the State to appropriate steps in the light
of the various aspects submitted hereunder so
that said Scheme is implemented in a scientific
and holistic manner.
8. The timetested method of designing and
implementing this program is known as a
“ridgetovalley approach”. Instead of that, the
present Government is implementing the
scheme in a haphazard manner without having
proper Detailed Project Reports (DPR's) at the
microwatersheds levels or at a river valley basin
level or a master plan as such. Indeed, the
scattered and single line activities are
perpetuated without any integration in which
the very purpose of undertaking the soil and
water conservation on sound hydrological
principles in given a goby.
9. The said Scheme is being implemented by
taking steps in down streams FIRST, which
ought to have been at the last. What is being
done interalia is dredging the river beds and
rivulets, that too in a most unscientific manner.
To add to it, Cement Nala Bunds (CNBs) are
being put across such rivers/rivulets as an
attempt to arrest the runoff (of rain water) by
creating artificial CNBs are being constructed in
order to inflate the expenditure that goes into
the pockets of the contractors who receive more
kickbacks. Even in this regard instead of
adopting a holistic approach, implementation is
'contract driven.”
10. This Petitioner who has been studying these
issues for the past 40 years and has been over
the years associated with the policy planning
bodies of the State and Union Government
undertook an intensive tour of 16 droughtaffected
districts of Maharashtra during the
month of February & March, 2016. To his utter
dismay he found that in the name of Jalyukt
Shivar and another scheme launched (with a
great political fanfare and patronage) known as
“RiverRejuvenation program” is being craftily
pushed in the name of droughtproofing and
providing water to the people who are in dire
need of great relief. Even these works are
undertaken in a scattered manner committing
breach of geohydraulic principles instead of
applying innovative ideas in that regard. As the
matter of the fact, it is leading to total ecological
destruction and will result in a destruction of
rivarian ecosystems and natural watersheds
which are evolved through the ages and this
kind of invasion by heavy machinery will cause
most phenomenal destruction to the integrity
and harmony of soil, water, biomass and
biodiversity resources. Surprisingly, there is no
'perspective plan' prepared or contemplated for
execution of such work. Hence, there is urgent
need to put a halt to this ruthless ecological and
ethical damage which is being inflicted in the
name of finding an answer to the recurrent
drought.”
15. It is contended by the Petitioner that on an average, 100
mm of rainfall generates 1 million litre water per Hectare which is
enough to sustain the agriculture in the State. It is pointed out that
both Jalyukta Shivar and RiverRejuvenation Schemes are not adopted
by following a systematic scientific and planned approach. It is pointed
out by the Petitioner that the soil profile retains water in the form of
moisture and the rest of it becomes ground water. It is pointed out that
subsoil contains aquifer which is supposed to retain water and in turn
recharge the ground water table. It is pointed out that even the soil is
also a living system which is fertile on an average to an extent of 9
inches to 1 feet deep.
16. In the affidavit of the Petitioner, it is pointed out that the
Government has not prepared a master plan for creating a drought free
State by providing a planned budgetary allocations. It is pointed out
that the funds are provided in ad hoc manner. It is urged that the State
must manage the much needed microwatershed development
programme. It consists the treatment being given to the lands so that
the water instead of gushing down with a speed, seeps through the soil
and enhances the soil moisture. Moreover, it holds and stores water in
the subsoil which is used as ground water to meet various needs during
the dry spells in monsoon. It is contended that if the water is made to
walk instead of running down, it does not erode the top soil.
17. The specific case of the Petitioner is that Jalyukta Shivar
Scheme in being implemented in most unscientific manner. The
Petitioner is relying upon the note marked as Exhibit“ART1” and a
document styled as “A policy planning approach to Water Resource
Management in Maharashtra” which is marked as Exhibit“ARIII A”. The
specific stand of the Petitioner is that the arbitrary implementation of
Jalyukta Shivar Scheme is leading to destruction. In short, the
contention of the Petitioner is that the scheme of Jalayukta Shivar is
being implemented by the State Government without adopting a
systematic and scientific approach.
18. As far as Writ Court is concerned, it has no expertise in the
matter of water conservation and water management. Nevertheless, the
issues raised by the Petitioner regarding implementation of Jalyukta
Shivar Scheme and the RiverRejuvenation Scheme need to be looked
into by the State Government. Appropriate Authority of the State
Government will have to look into the said contentions. Ultimate aim
should be to create a drought free State considering the fact that the
sufficient natural resources are available in the State.
19. The State may consider of appointing a Committee of
Experts for going into the contentions raised by the Petitioner. This is
necessary as the schemes are being implemented though both the
categories of water plans contemplated by MWRRA Act are not in
existence. There is no overall and comprehensive policy decision taken
by the State before starting implementation of the said two schemes. If
the Petitioner is right, the consequences of implementing the schemes in
an unscientific manner may be a drastic and devastating. The State may
consider of referring the issue for consideration of the Regulatory
Authority under the MWRRA Act which is a body of experts.
20. We may record here that the learned Amicus Curiae, the
learned counsel appearing for the Regulatory Authority and the learned
Government Pleader have assisted the Court as officers of the Court.
21. Hence, we pass the following order:
ORDER :
(a) The impugned order dated 28th January 2016 passed
by the Chief Secretary of the State of Maharashtra is
hereby set aside and it is held that the action of
releasing water during Kumbhmela of 2015 for the
purposes of Snan or Shahi snan (holy baths) from
Gangapur Dam Complex in Godavari river was
completely illegal being contrary to the State Water
Policy of 2003;
(b) The State Government shall deal with the issues
raised by the Petitioner in the affidavit dated 1st May
2016 and a brief note appended to the said affidavit.
The State Government shall consider of appointing a
Committee of Experts to look into the contentions
raised by the Petitioner. If the State Government
takes a decision to appoint a Committee of Experts,
needless to add that either the Petitioner should be a
part of the said Committee or that the Petitioner
should be given an opportunity by the said
Committee to put forward his views. Appropriate
decision shall be taken by the State Government
either on formation of a Committee of Experts or for
reference to an existing body of experts on or before
31st January 2017;
(c) Place the Petition on 5th February 2017 for directions.
( A.A.SAYED, J ) ( A.S. OKA, J )
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