AYAT SUREGAON THROUGH ITS AUTHORIZED PERSON NAMELY DIGAMBAR NAMDEO BANKAR AND ORS v. THE STATE OF MAHARASHTRA, THROUGH ITS PRINCIPAL SECRETARY AD OTHERS AND
Case Details
917wp9146-23 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9416 OF 2023 THE GRAMPANCHAYAT SUREGAON THROUGH ITS AUTHORIZED PERSON NAMELY DIGAMBAR NAMDEO BANKAR AND ORS VERSUS THE STATE OF MAHARASHTRA, THROUGH ITS PRINCIPAL SECRETARY AD OTHERS AND 917 CIVIL APPLICATION NO.10919 OF 2023 IN WP/9416/2023 WHITE STONE ENTERPRISES PROPRIETOR DHAVAL BABULAL BHANUSHALI VERSUS THE GRAMPANCHAYAT SUREGAON THROUGH ITS AUTHORIZED PERSON NAMELY DIGAMBAR NAMDEO BANKAR AND ORS ... Mr. S. S. Jadhav, Advocate for the Petitioner, Mr. V. D. Hon, Senior Advocate a/w Mr. D. R. Kale, Government Pleader for the Respondents/State Mr. D.R. Adhav, Advocate for Respondent No.6 CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ. DATE : 2nd November, 2023 ORDER: 1. On 1st August, 2023, we had passed the following order: "1. The Petitioner has put forth prayer clauses (B), (C),(D) and (E) as under:- “(B) It may be held and declare that, the impugned work orderdated 10.07.2023 issued by the respondent No.3 Additional Collector Ahmednagar bearing outward No. Gaukha/Karya 4K/450/2023 is against very purport of the Page 1 of 7 917wp9146-23 Government Resolution dated 19.04.2023 bearing No. Gaukhani-10/1222/Pra Kra.82/Kha- 1 and therefore, same needs to be quashed and set aside. (C) This Hon’ble Court may be pleased to direct the respondent authorities to follow the procedure as provided under the Government Resolution dated 19.04.2023 bearing No. Gaukhani- 10/1222/Pra Kra.82/Kha-1 and for that purpose necessary orders may kindly be issued. (D) Pending hearing and final disposal of this writ petition, the execution, operation and implementation of the work order dated 10.07.2023 bearing outward No.Gaukha/Karya 4K/450/2023 may kindly be stayed. (E) Pending hearing and final disposal of this writ petition, the respondent No.6 may kindly be restrained from excavating sand from the riverbed of Godavari river more particularly, from gut Nos. 520 to 523, 476, 508, 511, 514, 515, 517 and 531 to 535, 16, 291, 524, 527, 528, 537 situated at Suregaon, Tq. Kopargaon, Dist. Ahmednagar and for that purpose necessary orders may kindly be issued." 2. Issue notice to the Respondents, returnable on 30.08.2023. 3. The learned Government Pleader waives service of notice
Legal Reasoning
5. There is no dispute that if sand is to be excavated, a resolution by the Grampanchayat in favour of such excavation has to be passed. In the instant case, the District Collector, Ahmednagar (Minor Minerals Department) has got an advertisement published, dated 01.06.2023 with regard to the de-silting/excavation of the silt and sand mixed with silt. According to the Petitioner, even for this purpose, the consent of the Grampanchayat has to be obtained. Per contra, the Grampanchayat/Petitioner has passed a resolution dated 19.06.2022 refusing to extend it’s consent for the tender sale of the sand. A further communication dated 04.07.2023 was addressed to the Tahsildar, Kopargaon, informing him that the Grampanchayat is opposing the activity commenced by the State authorities after awarding the contract and the work order to Respondent No.6. 6. The learned Government Pleader submits that Clause (10) of the Government Resolution dated 19.04.2023 clearly indicates that the silt and sand mixed with silt, has to be Page 3 of 7 917wp9146-23 excavated in order to avoid the possibility of the flooding of the river. The issue before this Court is not with regard to excavation of sand, and therefore, no interim relief deserves to be granted. 7. We find from internal page 6 of the Government Resolution dated 19.04.2023 that the resolution of the Gramsabha has to be obtained by the authorities. It will have to be considered and interpreted as to whether this would also include the sand silt and whether such resolution of the Gramsabha would be necessary. For the present, the Gramsabha has opposed such de-silting/ excavation. 8. In view of the above, there shall be no further de-silting without the leave of the Court. We make it clear that in the event
Arguments
on behalf of Respondent Nos. 1 to 5. Mr. Adhav, learned Advocate waives service of notice on behalf of Respondent No.6. 4. The Petitioner contends that the State has issued a tender in the light of the Government Resolution dated 19.04.2023. Page 2 of 7 917wp9146-23 Pursuant to the tender, Respondent No.6 has been selected. Clause (10) on internal page No.5 of the Government Resolution dated 19.04.2023,reads as under:- ß¼10½ jkT;krhy iwj ifjfLFkrhpk /kksdk deh dj.ks] unhpk izokg iwoZor@lqjGhr dj.ks ;klkj[;k ckchapk tylaink foHkkxkus unh ik=krhy dkgh xV@LFkG fuf’pr dsY;kl v’kk fBdk.kkgwu xkG] xkG fefJr okGw dk<.;kckcr tylaink foHkkx ftYgkf/kdkjh ;kauk izkf/kd`r d: ‘kdsy- R;kpizek.ks [kkMhik=kdjhrk egkjk”Vª lkxjh eaMGgh ftYgkf/ kdkjh ;kauk izkf/kd`r d: ‘kdsy vFkok [kkMhrhy izokg lq;ksX; jk[k.;klkBh eaMGkus mR[kuu dsY;kl R;krhy okGw ojhyizek.ks ukxjhdkauk foØh djrk ;sbZy-Þ
Decision
we hold against the Petitioner in this Petition, the loss caused to the State exchequer and respondent No.6, shall be reimbursed by the Petitioner. " 2. Today, we have extensively considered the submissions on behalf of the litigating sides. With their assistance, we have gone through the Petition paper-book. 3. Considering the order that we are passing in the light of the solemn statement made by the learned Senior Advocate, on instructions, as Special Counsel for the State of Maharashtra and the learned Advocate on behalf of the Contractor, we are not required to advert to the entire submissions of the parties, by their consent. Suffice it so say, a solemn statement is made on behalf of the State Page 4 of 7 917wp9146-23 Government that E-tendering that was done under the orders of the Additional Collector vide the notification dated 01.06.2023, was restricted only for the purposes of de-silting. It is informed that the de- silting is always carried out in shallow waters. Excavation of sand on the sand spot/sand ghat is always done in a dry river bed. While carrying on de-silting activity, small quantities of sand are also excavated alongwith with the alluvial soil. Dredgers are used for the purposes of de-silting, besides other modes, all of which require prior permissions of the revenue authorities. 4. By an order dated 10.07.2023, the District Collector, Ahmednagar has set out the contours of the de-silting activity. The Surveyor's assessment is also taken into consideration for the purposes of quantifying the quantity of the de-silted material, of course in approximation. The river bed at issue falls in Suregaon-1 and Suregaon- 2 villages from Taluka Kopargaon. The terms and conditions (10) are also set out and Respondent No.6 Contractor has been bound by the said terms and conditions. 5. We are informed by the learned Special counsel on instructions that it is the Disaster Management Act under which the de- silting activity is carried out. The places are identified for the purposes of the de-silting. A specific methodology is used with technical assistance for support to identify the places where the water storage Page 5 of 7 917wp9146-23 has decreased on account of accumulation of the silt. If the river bed storage becomes shallow on account of excessive accumulation of silt, the Disaster Management recognizes the possibility of flooding of the river and damage to the embankment of the rivers on either sides. With this specific objective in focus, the Disaster Management Committee comprising of almost 54 revenue authorities as well as those from the Medical Department and Animal Husbandry Department, proceeded to initiate steps for the de-silting activity. 6. The learned Advocate representing the Contractor submits that entire de-silting activity and transporting the de-silted material to a particular depot, is carried out under the permission of the revenue authority, and is under CCTV surveillance (recorded). He further submits that the Contractor is bound by the terms and conditions of the E-tender and would resort to an activity purely for de-silting purposes. The machinery approved to be utilized for the said purpose would not enter the dry areas. An assurance is given that besides the de-silting activity, the machinery permitted to be utilized would not be pressed into service. 7. As we are informed that the Contractor is bound to submit a weekly report to the revenue authorities, we direct the District Collector to monitor the said situation/reports and ensure that a quarterly report on such de-silting activity to the extent of the issue raised in this Page 6 of 7 917wp9146-23 Petition, would be tendered to the Court alongwith the comments of the District Collector. 8. Considering the above, this Petition is disposed off. The ad interim order stands vacated. 9. It be noted that we have not dealt with the issue of the locus of the Petitioner/s to file this Writ Petition. The Civil Application would not survive and stands disposed 10. off. 11. In the event, the Petitioners or the Villagers draw an impression that impermissible activities are undertaken by the contractor under the pretext of de-silting, they would be at liberty to immediately bring this aspect to the notice of the District Collector and seek his indulgence. If they find that there is any delayed response to their request, they would be at liberty to approach this court. ( Y. G. KHOBRAGADE, J. ) ( RAVINDRA V. GHUGE, J. ) JPChavan Page 7 of 7