The Yeola Municipality and anr. Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
maharashtra municipal councils, nagar panchayats and industrial townships act, 1965 - section 309 r/w section 97 - supply of water -shortage of rainfall - problem of drinking water - state of emergency - collector ordering supply from the yeola water scheme to the villagers outside the area of yeola municipal council - sound reasons - order just and legal.; section 309 confers extra ordinary powers of execution of certain works in case of emergency. section 309 does not put any restrictions, on the collector, in respect of the jurisdiction of the municipal council. in other words, in case of emergency, it does not limit the powers of the collector, to execute any work outside the municipal are a for the public, residing out of council's jurisdiction. the collector is empowered to execute any work or do any act which may be executed or done by or on behalf of a council for the health or safety of the public. it does not restrict, the powers of the collector to provide water, from the municipal council water supply scheme, out side the limits of the municipal council. this power under section 309 needs to be read with section 97 of the 1965 act.;this section provides, application of municipal property and funds within and outside the municipal area. a plain reading of this provision admits only one interpretation. there is absolutely no ambiguity in this provision, which confers powers on the municipal council to supply or extend or for the benefit of any persons or buildings or lands in any place whether such place is or is not within the limits of the municipal area, any quantity of water or electrical energy or gas not required for the purposes of this act within the municipal area. under section 97, what is necessary for the collector to satisfy while exercising the powers conferred on him to satisfy that there is an emergency and in the opinion of the collector the action is necessary for the health and safety of the public.;the respondent nos. 2 and 3 have recorded sound and convincing reasons for passing an order, providing water supply to the respondent no. 5 village from the water supply scheme of the municipal council, due to the shortage of rainfall, in that particular year, the problem of drinking water in respondent no. 5 village occurred and it was in such an emergency the impugned order was passed. in the circumstances, the impugned orders passed by the respondent nos. 2 and 3 are perfectly legal and just. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time of consideration of the charge, it si open to the accused to bring to the notice of the court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. even if charge is framed at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. even if charge is frame d at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. it is not a requirement und4r section 3 of the atrocities act that the complainant should disclose the caste of the accused in the complaint. in other words, if there is no mention of the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the act or for quashing such complaint - a tank-well cum storage tank was constructed with two pump sets of 50 horse power each. 2 and 3 are perfectly legal and just. as far as the factual aspect is concerned, we have no hesitation, to hold that findings of two authorities below which have given sufficient reasons for exercising powers conferred on them under section 309 read with section 97 of the 1965 act are perfectly legal and just.d. b. bhosale, j. 1. by means of this writ petition, the petitioners seek to challenge an order dated 25th march, 1987 passed by the respondent no. 2, as confirmed by the respondent no. 3, by his order dated 27th april 1989, invoking the powers vested in them under section 309 read with section 97 of the maharashtra municipal councils, nagar panchayats and industrial townships act, 1965 (hereinafter, the 1965 act for short) and thereby providing water supply from the yeola municipal council water scheme to village paregaon, taluka yeola at the request of the village panchayat paregaon, respondent no. 5. 2. the petitioner yeola municipal council (hereinafter. municipal council for short) formulated a water supply scheme for the people within the local limits of the municipal council some time in 1968-69. the scheme was financed by the life insurance corporation of india and was envisaged in two stages. the first stage consisted of construction of a pipeline, to take water from the godavari left bank canal upto a balancing time having a capacity of storing water 4.6 million litres per day. a tank-well cum storage tank was constructed with two pump sets of 50 horse power each. a filtration plant was also set up. the second stage of the scheme was dropped and instead, improvements were suggested and incorporated in the first stage itself. the improvement consisted of one storage tank, two 70 horse power pumps instead of earlier, two 50 horse power pumps. an additional seven kilometres pipe lines was to be laid with one more filtration plant. the scheme was accordingly carried out for the population of about 28.000 in the year 1980-81. the petitioners claim to have increased the population at the time of filing of the petition to 35,000 to 40,000. the requirement, therefore, envisaged in 1981 was totally inadequate for the ever increasing population of the municipal council. 3. under section 50 sub-section (2) of the 1965 act, the municipal council is legally bound to supply atleast 70 litres of water per head per days which amounts to the requirement of about 24,50,000 litres per day equivalent to about 87,50,000 cubic feet per day. then available water supply from the incomplete scheme, according to the petitioners, was to the tune of 69,120 cubic feet per day, thereby, causing shortage of about 18,380 cubic feet per day equivalent to 3,14,640 litres shortage of water per day. the petitioners also demonstrated in the petition as to how the requirement of water of the municipal council was increasing day to day. the petitioners also averred in the petition that the agreement dated 28th september 1987 was also executed with the respondents for supply of 69,120 cubic feet water from the godavari left bank canal for a period of seven years. 4. in 1984-85 the affairs of the municipal council were in the hands of the administrator appointed under the provisions of the 1965 act. on 16th august 1984, the administrator passed an order by way of resolution no. 144. acceding to the request of the paregaon village panchayat for water supply, as the village was facing water scarcity problem at the relevant time. the petitioners further averred that the decision of the administrator was wrong and was taken without considering the requirement of water for the people staying within the jurisdiction of the municipal council. the municipal council, therefore, on 18th july 1985, passed resolution no. 2, in the extraordinary meeting of the general body of the council, cancelling the resolution passed by the administrator on 16th august 1984 and resolved not to supply water to the respondent no. 5, village panchayat paregaon, which is about a kilometre outside the boundary of the municipal council. the petitioners, have attributed mala fides contending that the supply of water by laying pipelines to the respondent no. 5 village, was done to favour some influential people of village paregaon, involved in the manufacturing cement pipes. the municipal council, thereafter, appears to have made lot of correspondence with the respondents making it clear that the resolution passed by the administrator was cancelled and therefore everything done thereafter by the respondents was patently without any authority of law and not binding on the petitioner municipal council. the petitioners have also demonstrated in the petition as to how the respondent no. 5 village has got several sources of water, viz. wells, water supply from canal, kadwa river etc. it is also averred in the petition that the population of the village is hardly 750. the petition also makes comment on the quality of land, existence of borewells and financial condition of the villagers. on the basis of this material, the petitioners have attributed political motive in the decision of the respondent nos. 1 to 4 of providing water supply to the respondent no. 5 village. it appears from the petition that the petitioners were opposed to supply water to the respondent no. 5 village by laying pipelines and not by supplying water by tankers. 5. the respondent no. 2 the collector of nashik, by his order dated 25th march 1987, directed the petitioner municipal council to supply water from the municipal council water scheme to the respondent no. 5 village. the collector has recorded reasons for taking decision to provide water supply from the municipal council's scheme to the respondent no. 5 village. the respondent no. 2 collector has exercised powers under section 309 of the1965 act and passed the impugned order. the relevant paras of the order read as under :- 'this year there is shortage of rain fall and there has been problem of drinking water in the rural area. in this condition the council had first consented and then refused to supply water. therefore the people of paregaon are suffering from want of water supply and there is also danger of epidemic in the area for that reason. therefore, i dinkar rao patil, the collector of nashik, under the provisions of the maharashtra municipalities act section 309 by exercising my power issue an order that the environment engineering division should immediately make water supply to the paregaon village from the yeola water scheme. the said executive engineer should immediately take up this work in hand and complete it and also decide as to how much charges should be paid to the yeola municipal council from such water supply and they should also be recovered. the said orders should be brought into effect forthwith'.6. the respondent no. 3 thereafter confirmed the order passed by the respondent no. 2 dated 25th march 1987, by his order dated 27th april 1989, the orders passed by the collector dated 25th march 1987 and by the commissioner dated 27th april 1989 are impugned in the present petition. 7. the respondents have not filed any counter affidavit, controverting the case set up by the petitioners. in view of this, we proceed to consider the case of the petitioners, in the light of the submissions made by the learned counsel appearing for the parties. we have heard the learned counsel for the parties and perused the impugned orders. the learned counsel appearing for the petitioners, has placed reliance on section 309 of the 1965 act, and submitted that the respondent nos. 2 and 3 have committed grave error in invoking the powers vested in them, under section 309, and passing impugned orders. the learned counsel also commented on the requirement of water for the people staying within the jurisdiction of the municipal council and further expressed the difficulties in supply of water to the respondent no. 5 village. he further submitted that the extraordinary power under section 309 for execution of certain work in case of emergency, does not confer powers, to the collector to give directions to the municipal council, to provide water supply to the people or village outside the limits of the municipal council. 8. we do not agree with the submission of the learned counsel appearing for the petitioners and challenge to the orders passed by the respondent nos. 2 and 3 taking recourse to section 309(1) read with section 97 of the 1965 act. '309(1). in case of emergency, the collector may provide for the execution of any work, or the doing of any act, which may be executed or done by or on behalf of a council and the immediate execution or doing of which is, in his opinion, necessary for the health or safely of the public: and may direct that the reasonable expense of executing the work or doing the act, with a reasonable remuneration to the person appointed to execute or to do it, shall forthwith be paid by the council.'section 309 confers extra ordinary powers of execution of certain works in case of emergency. in our opinion, section 309 does not put any restrictions, on the collector, in respect of the jurisdiction of the municipalcouncil. in other words, in case of emergency, it does not limit the powersof the collector, to execute any work outside the municipal area for thepublic, residing out of council's jurisdiction. the collector is empoweredto execute any work or do any act which may be executed or done by or onbehalf of a council for the health or safety of the public. it does not restrict,the powers of the collector to provide water, from the municipal councilwater supply scheme, outside the limits of the municipal council. thispower under section 309 needs to be read with section 97 of the 1965 act.section 97 reads as under : '97. the municipal fund and all properly vested in a council shall beappointed for the purposes of this act within its area : (a) x x x x (b) x xxx provided further that, nothing in this section or in any other provision of this act shall be deemed to make it unlawful for a council when with such sanction as aforesaid it has constructed works beyond the limits of the municipal area for the supply of water or electrical energy or gas or for drainage as aforesaid - (i) to supply or extend to or for the benefit of any persons or buildings or lands in any place whether such place is or is not within the limits of the municipal area, any quantity of water or electrical energy or gas not required for the purposes of this act within the municipal area, or the advantages afforded by the system of drainage works on such terms and conditions with regard to payment' and to the continuance of such supply or advantages as shall be settled by agreement between the council and such persons or the occupiers or owners of such buildings or lands, or'this section provides application of municipal property and funds within and outside the municipal area. a plain reading of this provision admits only one interpretation. there is absolutely no ambiguity in this provision, which confers powers on the municipal council to supply or extend or for the benefit of any persons or buildings or lands in any place whether such place is or is not within the limits of the municipal area, any quantity of water or electrical energy or gas not required for the purposes of this act within the municipal area. under section 97, what is necessary for the collector to satisfy while exercising the powers conferred on him to satisfy that there is an emergency and in the opinion of the collector the action is necessary for the health and safety of the public. when we examined the impugned orders passed by the respondent nos. 2 and 3 in the light of the aforesaid provisions of the 1965 act, we found that the respondent nos. 2 and 3 have recorded sound and convincing reasons for passing an order, providing water supply to the respondent no. 5 village from the water supply scheme of the municipal council, we also found, from the order of the collector that, due to the shortage of rain fall, in that particular year, the problem of drinking water in respondent no. 5 village occurred and it was in such an emergency the impugned order was passed. in the circumstances, we are of the opinion that the impugned orders passed by the respondent nos. 2 and 3 are perfectly legal and just. 9. as far as the mala fide and political motive attributed to the respondents is concerned, we are afraid, we cannot go into this aspect in our writ jurisdiction under article 226 of the constitution of india. the allegations attributing mala fide are absolutely vague. the political motives are attributed without joining any of the political personality as a party respondent to the petition. as far as the factual aspect is concerned, we have no hesitation, to hold that findings of two authorities below which have given sufficient reasons for exercising powers conferred on them under section 309 read with section 97 of the 1965 act are perfectly legal and just. the municipal council should not have challenged the impugned order dated 25th march, 1987, which prima facie appears to have been passed in the light of water scarcity in a particular year due to shortage of rain fall, and accepted the same as social obligations to cater needs of people in respondent no- 5 village. 10. in the circumstances, no interference is called for in the impugned orders. the writ petition has no merit and is dismissed with no order as to costs. 11. rule is discharged.