Prahlad Meena and Another vs The State of Rajasthan and Others

Alok Sharma

This petition has been filed with the following prayers:-

i) by issuance of suitable writ, direction or order in the nature thereof thereby the Hon''ble Court may kindly be pleased to direct the respondents not to release water from the Chaparwada Dam (Dudu, District Jaipur) and further restrained the respondents not to reduce the 4 feet level from the Dam and maintained the 4 feet water level in the Chaparwada Dam (Dudu, District Jaipur).

ii) Any other order or direction, which your lordships may deem just and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioners and in the interest of justice.

iii) The writ petition may kindly be allowed throughout with costs.

The facts of the case are that the petitioners were granted fishing rights in Chaparwada Dam, Dudu, District Jaipur in pursuance of a license granted by the Chief Executive Officer, Zila Parishad, Jaipur under Rajasthan Fisheries Rules, 1958 as amended in the year 2003. Subsequently, the license of the petitioners were renewed vide order dated 8th April, 2011 for the following year ending 31st March, 2012. As per the submission of counsel the petitioners are further entitled to renewal of the said license up to year 2014-2015. The petitioners are stated to have deposited the license fees up to the current year. The petitioners are stated to be presently carrying out fishing operations under the license aforesaid in the Chaparwada Dam in compliance with the Rules of 1958 as also the instructions issued by the department from time to time and are stated to have invested a huge amount towards cost of seed in the course of fish farming and also on other administrative overheads in the exercise of their right under the license. It is stated that there has been no compliant against the petitioners with regard to breach of any of the condition of the license or the Rules of 1958 as amended in 2003.

It is submitted that a meeting of the Water Distribution Committee (''WDC'' for short) was held on 15th November, 2011 in the presence of Additional District Collector, Jaipur and other senior officers wherein agriculturists having their fields in the area and others were also present, as the water in the Chaparwada Dam was required for agricultural purposes as also for drinking water for humans and cattle. At the meeting of 15th November, 2011, it was recorded that while water was released from the Chaparwada Dam an attempt be made to maintain the level of water at atleast 4 feet because of danger otherwise to fish farming under the license issued to the petitioners. It was also recorded that while ordinarily water level be kept at 4 feet, it was recognized that in the event additional water was required for agricultural purposes, the SDO, Dudu would take a decision at the meeting of the WDC for release of additional water.

Counsel for the petitioners submits that the petitioners as licensee under the Rules of 1958 as amended in the year 2003, for fishing rights in Chaparwada Dam, have been paying the requisite fee under the license from time to time and made other expenditures. It has been submitted that the petitioners, as such, have an interest in the water level in Chaparwada Dam and were comfortable with the decision of the WDC taken at meeting held on 15th November, 2011 to keep the water level at 4 feet such that fishing operations would not be damaged. It is submitted that however, the level of the water in the Dam in issue has been lowered on occasions to less than 4 feet contrary to the decision of the WDC on 15th November, 2011 and detriment of the petitioners. The petitioners state that they have represented to the competent authority to ensure that the water level of the Dam in issue was not reduced below 4 feet but the representation of the petitioners has been of little avail. Apprehending that water level less than 4 feet in Chaparwada Dam would prejudice the rights of the petitioners for fishing under license, this petition has been filed with the prayers as detailed hereinabove.

In reply to the writ petition, it has been submitted by the State that the water level at the Chaparwada Dam has to be maintained by the State Government as a matter of policy keeping in mind and also taking into consideration the interest of the cattle and agriculturists in the area, the need of drinking water and also of the fishing licensee to facilitate farming of fish in the area. It has been submitted that the meeting held on 15th November, 2011 did not, as it could not, take an immutable decision with regard to level of the Dam in issue for the reason that needs of agriculturists and others, varying weather conditions and monsoon rains dictate constant review of decisions. The Government has to take a decision balancing the interest of all stake holders. It has been submitted that subsequent to the meeting of 15th November, 2011, the villagers and agriculturists in the area serviced by the Dam demanded supply of water for agricultural purposes and submitted various representations. It is submitted that hearing of the public was held on 2nd February, 2012. Subsequently at the meeting of the WDC was held on 3rd February, 2012, it was decided that taking into consideration the crisis situation obtaining at the relevant time, in respect of agricultural operations, water for irrigation be released till the level was reduced to a level of 2 feet in the Dam. It has been submitted that the said level is not fatal or deleterious to fish farming. It is further submitted that the State Government being a welfare Government cannot confine itself to the rights of the fishing contractors alone but has to balance the rights of each of the stake holders focusing primarily on the needs of the villagers for agriculture and water for drinking and for their cattle.

Counsel for the respondent has further submitted that the decision making with regard to level of water in Dam from time to time is wholly in the domain of the Executive and its administrative decisions in respect thereof ought not to be interfered with under the exercise of power of this Court under Article 226 of the Constitution of India

Having heard the learned counsel for the parties, it is quite apparent that the issue of minimum water level in the Dam in issue is not an issue within the scope of this Court''s power under Article 226 of the Constitution of India. Decisions on water level in the Dam from time to time are the decisions to be taken by the experts taking into consideration the situation obtaining at any given point of time. The petitioners, no doubt have the contractual right under the license issued for and the State needs to taken into consideration the interest of the petitioners as licensee to the extent possible while taking a decision on the level of the water in the Dam. However, the contractual rights of the petitioners as licensee for fish farming cannot override the rights of the agriculturist, cattle and the villagers for drinking water. The State Government is all time free in the exercise of its executive authority to take any administrative decision with regard to level of water in the Dam. If in consequence of the lowering of the water level, the petitioners as the licensee of fishing under the Rules of 1958 as amended in the year 2003 suffers any damage, it is for the petitioners to take their remedy in accordance with law.

For the present, this Court find no force in the writ petition and the writ petition deserves to be dismissed. Dismissed, accordingly.