Allowed

Anil Kumar v. Nagar Panchayat Khunti through Its Executive Officer

Jharkhand HC6 Jan 2022WPC/2260/2021

Case brief

AI extract

What is this about?

This court quashed notices issued against the petitioner directing demolition of a borewell. The court held that the action was illegal as the borewell was drilled before the relevant Municipal Act came into force and the respondent failed to prove violation or follow natural justice by ignoring the petitioner's evidence.

What did the court decide?

The notices dated 08.06.2021 and 22.06.2021 are quashed/set aside and the writ petition is allowed.

Anil Kumar Vs Nagar Panchayat Khunti through Its… — Property and Title | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No.2260 of 2021

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Anil Kumar .......... Petitioner. -Versus1. Nagar Panchayat, Khunti, through its Executive Officer. 2. Ashish Kumar, at present posted as Executive Officer, Nagar Panchayat, Khunti. .......... Respondents.

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Nagar Panchayat, Khunti, through its Executive Officer.

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Ashish Kumar, at present posted as Executive Officer, Nagar Panchayat, Khunti.

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----- CORAM : HON’BLE MR. JUSTICE RAJESH SHANKAR ----For the Petitioner : Mr. Sumeet Gadodia, Advocate For the State : Mr. Ajit Kumar, Sr. Advocate & Mr. Ranjit Kumar, Advocate ----- Order No.08 Date: 06.01.2022

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This case is taken up through video conferencing.

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The present writ petition has been filed for quashing the notice as contained in memo No. 703 dated 08.06.2021 (Annexure-2 to the writ petition) issued by the Executive Officer, Nagar Panchayat, Khuntirespondent No.1, whereby the petitioner has been directed to demolish or fill up 6” high yielding drilled borewell within 15 days or else in exercise of the power under Section 209 of Jharkhand Municipal Act, 2011 (in short ‘the Municipal Act, 2011’) the same shall be demolished by the authority and the expenses incurred in demolition shall be realized from him. Further prayer has been made for quashing the letter as contained in memo No.766 dated 22.06.2021 (Annexure4 to the writ petition) issued by respondent No.1 , whereby the reply filed by the petitioner on 22.06.2021 has been rejected, directing him to demolish the said borewell till 29.06.2021 failing which the same will be demolished by the respondent no.1 imposing cost of demolition upon the petitioner.

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The factual background of the case as stated in the writ petition is that in the year 2010, the father of the petitioner, namely, Dinesh Chandra Mahto, being a farmer, got a 6” borewell drilled at his private premises situated at Ward No.08, Naya Toli, Karra Road, Khunti for irrigation purposes and for operating the same the petitioner also got electricity connection from the then Jharkhand State Electricity Board on 23.12.2010. Subsequently, he built up single storey building on a portion of his private land and since then he has been residing there and using water for irrigation and/or domestic purposes in a peaceful manner and major portion of the land is still being used for agricultural

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purposes for which the petitioner uses water from borewell in question. After lapse of more than ten years, respondent No.1 vide notice as contained in memo No.703 dated 08.06.2021 (communicated to the petitioner on 10.06.2021) directed the petitioner to fill up or demolish the said borewell within a period of fifteen days alleging violation of Section 209 of the Municipal Act, 2011. It was also stated in the said notice that on failure to demolish the said borewell, the same would be demolished by the respondents and cost of demolition would be realized from the petitioner. The petitioner replied the said notice and sent the same through registered post to the office of respondent No.1 claiming that the provisions of the Municipal Act, 2011 was not applicable to the petitioner at the time of drilling of the said borewell, as it was done prior to commencement of the Municipal Act, 2011. It was also replied that Section 10 of "Jharkhand State Ground Water Development & Management (Control & Regulation) Act, 2019" (in short ‘the Act, 2019’), notified through the Water Resources Department, Government of Jharkhand for the first time in the Year 2019, restricted the diameter of construction of borewell to 4” only and prior to that there was no limitation in diameter of borewell. Thus, the petitioner did not violate any provision of law in drilling the borewell in question. However, the respondent No.1 vide second notice as contained in memo No.766 dated 22.06.2021 rejected the reply of the petitioner by misinterpreting the provisions of Section 10 of the Act, 2019, observing that as per Sections 10.1 and 10.3 of the Act, 2019, drilling of borewell for domestic purpose in both rural and urban areas respectively was exempted from taking prior permission of the Jharkhand State Ground Water Authority, but diameter of the borewell should not be more than 4”, however, the borewell in question has the diameter of 6” and thus, the petitioner violated the provision of Section 10.4 of the Act, 2019. Further, the petitioner was directed to demolish the borewell in question on or before 29^th June, 2021 or else the respondent authorities would demolish the said borewell and cost of demolition would be realized from the petitioner. Hence the present writ petition.

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The learned counsel for the petitioner submits that the respondent No.1 has intentionally misinterpreted the provisions of the Act, 2019 by recording that petitioner has also violated the provision of Section 10.4 of the said Act despite the fact that the same was also not

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applicable to the case of the petitioner. It is also submitted that entire exercise of the respondent no.1 is actuated with malice in law and the impugned notices dated 08.06.2021 and 22.06.2021 have been issued in a most arbitrary and illegal manner. It is further submitted that the order by way of said notices is, in fact, the order for demolition of borewell in question, which is contrary to the principles of natural justice, as the same has been passed without due verification of the factual position with respect to drilling of the borewell. The respondent no.1 failed to verify the fact stated in the reply to notice dated 08.06.2021 regarding drilling of borewell done in the year 2010 and surprisingly proceeded to issue second notice for demolition. It is also submitted that issuance of impugned notices of demolition in purported exercise of power under Section 209 of the Municipal Act, 2011 is not sustainable in the eyes of law especially in view of the fact that at the time of drilling the borewell, in question, the Municipal Act, 2011 itself was not in existence and hence, the petitioner was not required to obtain permission from any authority. The Jharkhand Municipal Act, 2011 has come into force with effect from 9^th February, 2012 i.e. after drilling of the said borewell and the provisions of the said Act was not in existence and/or applicable to the petitioner. The Central Ground Water Authority has taken liberal view with respect to construction of borewell for domestic and agricultural purposes. Section 209(3)(b) of the Municipal Act, 2011 also prescribes for grant of permission to retain the construction of borewell on such terms and conditions as deemed fit by the Standing Committee, however, the respondent no.1 also overlooked such provision while issuing the impugned notices, as on bare perusal of the said notices itself, it would appear that before issuing notices to the petitioner, the matter was not put up before the standing committee. The action of the respondent No.2 is actuated with malice in law and vindictiveness, as the impugned notices were issued in the nature of order for demolition of borewell. It is also submitted that the Bihar and Orissa Municipal Act, 1922/Jharkhand Municipal (Amended) Act, 2006 particularly sections 186 to 193 of the same did not contain any provision for demolition of borewell rather section 193 of the said Act restricted the action of demolition of building/well after expiry of more than 15 days from the date of completion of construction. The respondents have recently issued NIT

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for digging 19 high yield drilled tubewell (HYDT) and as such it is wrong to say that there is acute shortage of ground water level in Nagar Panchayat Area, Khunti.

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On the contrary, learned counsel for the respondents submits that the documents relating to electricity connection only show that the Jharkhand State Electricity Board had granted electric connection in the premises of the petitioner in the year 2010, however, the same does not disclose the fact that the said borewell was drilled prior to enactment of Municipal Act, 2011. It is further submitted that the area falling within jurisdiction of Nagar Panchayat, Khunti is facing acute water shortage and water level has rapidly depleted in recent years due to illegal installation of deep borewell, as would be evident from the reports published in local daily newspapers. The Executive Officer, Nagar Panchayats, Khunti published a notice on 18.05.2018 in local daily newspapers intimating that installation of deep borewell is prohibited within the jurisdiction of Nagar Panchayat, Khunti and the same can only be allowed after taking due permission and on payment of requisite fee. The Chairman, Nagar Panchayat, Khunti vide its letter dated 05.12.2020 directed the respondent no.1 to call for a special meeting to discuss the issue relating to drilling of illegal deep borewells within the jurisdiction of Nagar Panchayat, Khunti, causing loss to the public exchequer as well as contrary to the provisions of Municipal Act, 2011. The respondent no.1 vide office order as contained in memo No.442 dated 05.04.2021, deputed a team of officers including Town Manager (Nodal Officer) for conducting an enquiry and to register FIR with respect to any incident of drilling of illegal borewell, which was prohibited under the Municipal Act, 2011. The said team concluded enquiry and submitted its reports on 13.05.2021 & 17.05.2021 to the respondent no.1, which disclosed that the petitioner had got deep borewell drilled in the year 2014 illegally, causing an acute shortage of the water in the areas under Ward Nos.8, 9 & 10. The enquiry report further revealed that the petitioner had got the borewell, in question, drilled illegally and without taking any permission from the competent authority. The enquiry report also disclosed that the petitioner was commercially selling water within the jurisdiction of Nagar Panchayat, Khunti on exorbitant rate, causing huge loss to said Nagar Panchayat. The petitioner cannot be allowed to draw underground water through motorized borewells as

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the same would deplete the underground water level, which is necessary for protecting the environment and preserving ecological balance.

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Heard learned counsel for the parties and perused the materials available on record. The petitioner has assailed the notices dated 08.06.2021 and 22.06.2021, whereby the respondent no.1 has directed him to demolish 6” high yielding drilled borewell alleging that the same has been drilled in his land in violation of the provisions of Section 209 of the Municipal Act, 2011.

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It would be appropriate to refer section 209 of the Municipal Act, 2011 which reads as under:-

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“209. Prohibition regarding sinking of tube-well, digging of wells, etc.

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(1) Notwithstanding any law for the time being in force with regard to this provision, no person shall, except with the prior permission, in writing, of the Municipal Commissioner or the Executive Officer, sink any tube-well or dig or construct any new well, tank, pond, deep boring, cistern or fountain in any municipal area.

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(2) The Municipal Commissioner or the Executive Officer may grant such permission, and may issue a license for the purposes of subsection (1), on such conditions, and on payment of such annual fee, as the municipality may, from time to time, specify.

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(3) If any work as referred in sub section (1) is begun or completed without such permission, the Municipal Commissioner or the Executive Officer may

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(a) By notice, in writing, require the owner or the other person, who has done such work, to fill up or demolish such work, within such time as may be specified in the notice, and if the work of filling up or demolition is not done within the time so specified, cause the work to be done and realize the expenses therefor from the owner or the person to whom such notice was given, or

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(b) Grant permission to retain such work on such terms and conditions as the Standing Committee may consider fit to impose .”

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Thus, section 209 of the Municipal Act, 2011 starts with non-obstante clause and prohibits any person to sink/drill any tube-well or dig or construct any new well, tank, pond, deep boring, cistern or fountain in any municipal area unless a prior permission in writing is obtained by the Municipal Commissioner or the Executive Officer on such terms and annual fee as the municipality may specify time to time. The said section further provides for action to be taken for violating such condition which includes demolition of the work or its regularization on such terms and conditions, as may be specified by the Standing Committee.

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On perusal of the counter affidavit filed on behalf the respondents, it appears that on the order of the respondent no.1, a team was constituted to enquire illegal drilling of borewell and on the basis of

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the report submitted by the said enquiry team, the impugned notice dated 08.06.2021 was issued to the petitioner, which was duly replied by the petitioner, countering the allegations levelled against him. However, subsequently, the respondent no.1 issued second notice dated 22.06.2021, directing the petitioner to demolish the said borewell alleging violation of section 209 of the Municipal Act, 2011. I am of the view that since there were two possible options, the respondent no.1 should have discussed in the impugned notices as to why the other option of regularization of the said borewell as per the provision of Section 209(3)(b) of the Municipal Act, 2011 was not feasible and by not doing so, the action of the respondent no.1 has vitiated both by procedural impropriety as well as violation of the principles of natural justice.

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That apart, thrust of the argument of the learned counsel for the petitioner is that the borewell in question was drilled in the year 2010 itself and at that time, the Municipal Act, 2011 was not in vogue and hence any action in exercise of the power conferred under the said Act is not permissible for installing of borewell prior to commencement of the said Act.

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In support of the said contention, the learned counsel for the petitioner has filed before this Court a duplicate bill dated 04.12.2010 issued by Subhadra Borewell Karra Road, Khunti. The petitioner has also filed before this Court the documents in support of the fact that the petitioner had applied for electricity connection on 22.12.2010 for operating the said borewell, which was provided to him on 23.12.2010.

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On the other hand, the respondents have contended that during enquiry the inhabitants of Nawatoli and Tuttoli, Khunti said that the petitioner had perhaps drilled deep well boring in the year 2014.

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Thus, this court finds that the respondent no.1 took action against the petitioner on vague statements of some of the local inhabitants, who were not sure about the exact date or year of boring. Moreover, such statements of the witnesses cannot be said to be conclusive piece of evidence. Interestingly, the respondents in the year 2021 woke up from deep slumber to find out the persons who violated the provisions of the Municipal Act, 2011 and on mere statements of the villagers, without any other cogent or conclusive evidence regarding date of drilling of deep well boring, took action against the petitioner. The respondents have failed to explain before this court as to why they did

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not attempt to prevent such violations at the time of its commission or within a reasonable period thereafter. Had the respondents responded quickly, they would have collected conclusive evidence to justify their action. However, now the position is that the petitioner, on the one hand, has claimed that the said boring was drilled in the year 2010 and in support of the said contention, he has brought on record some proof and on the other hand, the respondents have relied on the statements of local residents recorded much belatedly that too without affording any opportunity of hearing to the petitioner to controvert it. Since the impugned action intending demolition of borewell had civil consequences, the respondents were required to act on strong/conclusive evidences suggesting that the borewell was drilled by the petitioner after commencement of the Municipal Act, 2011. Once the petitioner has controverted the allegation levelled against it and in support of the said stand, he has placed some evidences, the onus has shifted to the respondents to counter the said stand of the petitioner by placing on record conclusive evidence before taking any action against him. However, the respondent no.1, in the impugned order, has not discussed about the stand of the petitioner taken in response to the notice dated 08.06.2021 to the extent that the said borewell was constructed before the commencement of the Municipal Act, 2011 and has mechanically observed that the petitioner has violated the provision of section 209 of the Municipal Act, 2011. One of the contentions of the respondents is that the petitioner is commercially selling water within the jurisdiction of Nagar Panchayat, Khunti at an exorbitant rate. The said contention of the respondents has also been controverted by the petitioner, stating that he is engaged in the business of distribution of water and not selling of water. The petitioner is extracting water from the borewells of Nagar Panchayat, Khunti and distributing it to the persons of affected areas through tanker at the rate fixed by the respondent no.1. In support of the said contention the petitioner has brought on record a copy of office order contained in memo no.1546 dated 22.12.2018 issued by the respondent no.1. Be that as it may. Since the respondents have failed to prove that the petitioner has violated the provisions of section 209 of the Municipal Act, 2011, impugned action taken by the respondent no.1 is liable to be set aside.

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Under the aforesaid facts and circumstance, the notice as contained in memo No.703 dated 08.06.2021 and the notice as contained in memo No.766 dated 22.06.2021 issued by respondent No.1 are quashed/set aside.

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The writ petition is, accordingly, allowed.

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(Rajesh Shankar, J.)

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Sanjay/

Anil Kumar v. Nagar Panchayat Khunti through Its Executive Officer

Case brief

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Anil Kumar v. Nagar Panchayat Khunti through Its Executive Officer

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