Dismissed

Hirabai Kavlekar., v. the Collector (North Goa) and 22 Ors.

Bombay HC24 Oct 2018MCA/821/2018

Case brief

AI extract

What is this about?

In a miscellaneous civil application arising from a public interest litigation concerning lake water, the High Court dismissed the applicant's petition seeking to keep a sluice valve open and receive its keys. The Court declined to intervene in the State's decision on water distribution.

What did the court decide?

None. The application was disposed of without interference in the respondent's decision regarding water release.

Hirabai Kavlekar., Vs the Collector (North Goa) and 22 Ors. — Landlord and Tenant | Bombay HC (2018)

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 1 mca821-18dt24-10-18

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Santosh

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IN THE HIGH COURT OF BOMBAY AT GOA MISC. CIVIL APPLICATION NO.821 OF 2018 IN

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PUBLIC INTEREST LITIGATION WP NO.10 OF 2017

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Hirabai Kavlekar.

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...…
Applicant.

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 Versus

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The Collector (North Goa) and others.….... Respondents.

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Ms. Asha Desai, Advocate for the Applicant.

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Mr. D. Lawande, Advocate General with Mr. Deep Shirodkar,
Additional Government Advocate for the Respondents No.1,2,4,5
& 6.

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Mr. Vinoj K. Daniel, Advocate for Respondent No.7.

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Mr. Devidas Pangam, Advocate for Respondent No.8.

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Mr. S.G. Dessai, Senior Advocate with Ms. Shalaka Shelke,
Advocate for Respondent No.14.

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Mr. A.D. Bhobe, Advocate for Respondent No.16.

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Ms. Vinita Palyekar, Advocate for Respondent No.17.

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Ms. Sameera Bhat, Advocate for Respondent No.20.

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Mr. Nigel Da Costa Frias, Advocate for the Petitioner in PILWP
No.10 of 2017.

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Coram : N.M. Jamdar &
 Prithviraj K. Chavan, JJ.
 Date : 24 October 2018.

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 2 mca821-18dt24-10-18

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P.C.:

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By this Application, the Applicant is seeking directions

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as under :

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(a) The authorities concerned be directed to keep the
sluice valve open during the period from end of
September to first week of June i.e. until the entire
paddy is harvested so as to ensure that the water
collected during the monsoon is supplied through the
irrigational channel to the farmers in the village beyond
the reservoir and applicant can cultivate and harvest
the paddy on the basin of the reservoir i.e. in the
manner in which it was originally utilised.

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(b) The WRD officers be directed to hand over a key of
the sluice valve to the applicant as the applicant is
always available on site and is familiar with the
maintenance of the water table and the water cycle to be
maintained of the reservoir as it was maintained by
them from time immemorial.

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2.When the Application came on board, we had placed
the matter for consideration of the Executive Engineer, Water
Resources Department whom we had called upon to decide the
issue keeping in mind the various orders that have been passed in
the PIL Writ Petition. The Water Resources Department has looked
into the prayers made by the Applicant and has observed thus :

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“By a miscellaneous civil application no.821 of 2018,
Hirabai Kavlekar has prayed that the sluice valve be kept

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 3 mca821-18dt24-10-18

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open from the end of September to 1st week of June
and that the Water Resources Department be directed
to hand over the keys of sluice valve to her as it was
maintained by her from time immemorial.

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The application has been considered by the
undersigned, pursuant to direction by the Hon'ble High
Court by dated 09/10/2018.

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In the application it is stated that the sluice valve
was always maintained by the applicant. This statement
is not correct as the sluice valve is controlled and
maintained by the Water Resources Department, the
statement is also contrary to case of the applicant in the
Civil Suit No.19/2010 which is cleared from the
document produced by the applicant.

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The Officers of the Water Resources Department
visits the area to monitor the water level from time to
time specially during the monsoon. As regards release
of water, the same is done normally in first week of
November. However that also depend on when the
withdrawal of monsoon actually takes place, even as
regard other dams/reservoir in the State of Goa the same
pattern is followed.

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Before releasing the water, the Department has to
also consider the position as regard other lands which
are cultivated during monsoon and where harvesting yet
to be completed. The release of water therefore depend
on the demands/request of the general farming
community of the area and not the demand of the one
particular farmer. It has been noticed that in that area
where cultivation was done during monsoon harvesting
is yet to be fully completed. The release of water at this
stage may also affect such crops.

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As regard handing over the keys to the applicant,
this request cannot be accepted, the water stored in the

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 4 mca821-18dt24-10-18

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Bondwal tank has to be released depending on the
needs and requirement of the majority of the farmers in
the area. Monitoring is therefore required to be done
by Officer of Water Resources Department who have
technical knowledge and cannot be left to any private
individual.

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Considering the overall scenario and the factual
situation on site, in my opinion release of water if can
be done by 10th November. The Department should
do so only if the same is allowed by the Hon'ble High
Court.”

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3.The learned Counsel for the Applicant submitted that
the Applicant is an agricultural tenant and being an agricultural
tenant, under Section 38 of the Goa, Daman and Diu Agricultural
Tenancy Act, 1964, she has right to operate the sluice gate and this
right overrides everything else, even the orders of the Court. It is
contended that the paddy crop season has commenced now and if
the water is released on 10 November 2018, then the paddy crop
will be lost. The learned Advocate General submitted that normally
release of water is done in the first week of November, but, however,
due to late withdrawal of the monsoon, it has been decided that it
would be prudent not to release the water now, but on a later date
i.e. 10 November 2018, subject to order of the Court.

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4.The Water Resources Department which has been
established by the State for distribution of water in the State of Goa

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 5 mca821-18dt24-10-18

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would naturally be in a better position to take a decision as regards
climatic conditions and appropriate distribution. Not only the right
of the Applicant to water is involved, but of various others as well.
Water is a limited and dwindling resource and there are several
competing claimants for its consumption. In the PIL Petition, we
had passed series of orders, one of which had led to even
establishment of Task Force for the protection of the lake, who has
also described the wetland is of ecological importance.

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5.Therefore, in such matters we have to take a holistic
view and not merely the basis of the right put forward by the
Applicant. On the basis of presumptions, we cannot override the
subjective satisfaction of the Water Resources Department to delay
the release of water for this particular year. The learned Advocate
General points out that the water would be released in November
only if the Court grants permission to the same. The State will
decide about the release of water keeping in mind various orders
that we have passed in the PIL Writ Petition.

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6.In this view of the matter, we do not find any reason to
interfere in this Application. The Civil Application is disposed of.

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Prithviraj K. Chavan, J. N.M. Jamdar, J.

Hirabai Kavlekar., v. the Collector (North Goa) and 22 Ors.

Case brief

What is this about?

What did the court decide?

Hirabai Kavlekar., v. the Collector (North Goa) and 22 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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