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Case Number

Writ Petition (Civil) No. 13305 of 2008

Attorney(S)

For petitioners: M/s. S.K Padhi, Sr. Counsel with Mrs. M. Padhi, G. Mishra & Mr. A. Das
For opp.parties: Mr. Ashok Mohanty, Advocate General (for O.Ps.1 & 2)
Addl. Govt. Advocate (for O.Ps.1 to 5, & 9)
M/s. Mukesh Panda & M.S Panda (O.P.8)

Judges

V. Gopala Gowda, C.J
S.K Msihra, J.

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Smart Summary

Structured Summary of the Opinion (S.K. Mishra, J.; V. Gopala Gowda, C.J. concurring)

Factual and Procedural Background

The writ petition was filed by villagers of Jharbeda seeking a direction to the opposite parties to provide an embankment (a boundary) in the Satrusagar Tank so as to secure adequate water for irrigation and other basic uses. Two adjoining villages in Hindol block of Dhenkanal District — Jharbeda and Sanmunda — share water from contiguous water bodies identified as Satrusagar Tank (allocated to Jharbeda) and Satrusagar M.I.P (allocated to Sanmunda). Because the Satrusagar Tank is at a higher level, and there is no embankment between the Tank and the M.I.P, water drains into the M.I.P, leaving the Jharbeda tank perennially without water.

Sanmunda villagers earlier filed O.J.C No. 6151 of 1997 (a Public Interest Litigation), which was disposed of on 31.7.1997 by an order in which it was recorded (by statement of counsel) that there was no proposal to raise any embankment and the court directed that certain opposite parties should not raise any embankment dividing the project and that the Gram Panchayat should not auction the project for pisciculture.

Jharbeda villagers pleaded continued and acute hardship — scarcity of water for bathing, drinking for residents and cattle, and for irrigation — and sought an order directing construction of a boundary/embankment up to a minimum level so that both villages could have adequate water. Opposite parties filed a counter affidavit describing land records, admitting there is presently no embankment and explaining that an earlier small embankment had been washed away; they also stated both water bodies were under Kantimili Gram Panchayat control and referred to prior attempts to lease the tanks for pisciculture (public auctions), which had been halted by the 1997 order.

Legal Issues Presented

Whether the court should direct the construction of an embankment (boundary) between Satrusagar Tank and Satrusagar M.I.P to secure adequate water for the villagers of Jharbeda.
Whether the doctrine of res judicata (and the earlier order dated 31.7.1997 in O.J.C No. 6151 of 1997) bars the present writ petition seeking relief with respect to construction of an embankment or other measures to provide water to Jharbeda.
Whether the scarcity of water, as pleaded by the petitioners, engages Article 21 of the Constitution (right to life) insofar as it concerns basic necessities for bare minimum existence.

Arguments of the Parties

Petitioners' Arguments

Jharbeda villagers are suffering severe hardship because the Satrusagar Tank allocated to them is perennially without water due to lack of an embankment; all rainwater flows into the adjoining M.I.P which is at a lower level.
There is an urgent need to construct a boundary/embankment up to a minimum level so that both villages can have adequate water; doing so would not prejudice Sanmunda and would be just and equitable.
Denial of adequate water threatens basic necessities of life for the villagers and their cattle and therefore implicates Article 21 of the Constitution.

Opposite Parties' Arguments

The opposite parties explained land-record particulars showing the tank and M.I.P are State-recorded (Hal plots and khatas) and admitted there is currently no embankment; water distribution depends on natural gradient.
They stated that due to an existing dispute between the two villages, it is not possible to construct an embankment at present; earlier there was a small embankment but it had been washed away by heavy flow of rainwater.
Both water bodies were transferred to Kantimili Gram Panchayat and public auctions for pisciculture were held in 1994-95 and 1997 (Jharbeda and Sanmunda residents had participated), but auctions were stopped because of the court's earlier order dated 31.7.1997.
They contended the present writ petition is barred by res judicata in view of the 31.7.1997 order (OJC No. 6151 of 1997), and submitted that appropriate orders be passed to resolve the dispute between the villages.
While admitting scarcity of water for Jharbeda, they asserted that the earlier court order precludes raising any embankment that would divide the project.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
O.J.C. No. 6151 of 1997 (order dated 31.7.1997)	The 1997 order recorded that there was no proposal to raise any embankment by dividing the project; it directed that Opposite Parties 2 and 3 shall not raise any embankment dividing the project and directed the Gram Panchayat (Opp. No.9) not to auction the project for pisciculture.	The Court observed that the 1997 order did not decide the underlying issue on contest but merely reflected the stand that no embankment was proposed; accordingly, the Court held that the principle of res judicata did not bar filing the fresh writ petition. The Court also noted that the earlier order had the effect of stopping public auctions for pisciculture.

Court's Reasoning and Analysis

The court examined the factual matrix and evidentiary material annexed to the petition, including the map (Annexure‑1), and made the following assessments based on what the record admitted:

The map and common admissions established that there had once been an embankment between Satrusagar Tank and Satrusagar M.I.P, and that the Satrusagar Tank lies on a higher plain causing rainwater to flow into the M.I.P side. This physical configuration results in perennial shortage of water in the portion allocated to Jharbeda.
The petitioners' need for water was characterized as a basic necessity; the court acknowledged that without provision of water, the petitioners' ability to secure bare minimum existence for themselves and their cattle may be threatened, invoking Article 21 concerns as framed by the petitioners.
On the contention of res judicata arising from the 1997 order in O.J.C No. 6151 of 1997, the court analysed the scope of that order and noted that it did not decide the embankment issue on contest. Instead, the earlier order reiterated the opposite parties' statement that there was no proposal to raise an embankment. For that reason the court concluded that the prior order does not operate as a bar to the fresh writ petition under principles of res judicata.
The court observed a material change in circumstances since 1997: about fifteen years had elapsed and the situation had worsened to acute shortage of water for Jharbeda. That change in facts warranted fresh consideration rather than an absolute bar based on the earlier order.
Given the factual complexity (physical gradient, washed‑out embankment, competing claims, administrative control by Gram Panchayat and departments), rather than ordering an immediate construction or interference, the court directed a measured administrative remedy: constitution of a team of experts by specified opposite parties to study all relevant aspects and to decide whether an embankment (or other measures) is necessary to provide adequate water for Jharbeda, with a strict three‑month timeline for decision and an instruction to implement the decision expeditiously.

The court's analysis remained tied to the record and the history of proceedings; it declined to resolve disputed technical issues itself and instead mandated an expert administrative inquiry with a prompt timeline.

Holding and Implications

CORE RULING: The writ petition is disposed of with a direction that Opposite Parties 1, 2 and 3 constitute a team of experts to study the situation and decide whether an embankment is necessary to provide adequate water to the villagers of Jharbeda, and to implement that decision; the team must report within three months from receipt of a certified copy of the judgment.

Implications and Consequences

Direct effect on parties: Opposite Parties 1, 2 and 3 are required to constitute an expert team, study all relevant aspects, decide whether construction of an embankment (or alternative measures) is necessary to ensure adequate water supply to Jharbeda, and implement the decision as expeditiously as possible.
Timeline: The expert team must reach a decision within three months from receipt of a certified copy of the judgment.
Costs: There shall be no order as to costs.
Precedential impact: The opinion did not announce a new legal principle beyond directing administrative action in the specific factual context; it expressly treated the earlier 1997 order as not operating as res judicata for the present petition. The court did not purport to lay down a broader precedent beyond its factual determination and the administrative direction issued.

Additional Notes

The opinion is authored in the text by S.K. Mishra, J. The judgment bears the concurrence of V. Gopala Gowda, C.J., who records agreement ("I agree."). The court emphasised remedial administrative measures rather than exercising technical intervention itself.

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Brajabandhu Nath And Others Petitioners v. State Of Orissa & Others Opp. Parties

S.K Mishra, J. In this writ petition, the villagers of village Jharbeda pray to direct the opposite parties to provide an embankment in Satrusagar Tank, which will facilitate the provision of adequate water for use of irrigation and other purposes.

2. In Hindol block of Dhenkanal District, there are two adjoining villages, namely, Jharbeda and Sanmunda and both the villages share the water of Satrusagar Tank. The said tank/M.I.P caters to the need of two villages. Satrusagar MIP has been allocated to Sanmunda village whereas Satrusagar Tank has been allocated to Jharbeda village. The tank which has been allocated to Jharbeda village is perennially without water as the level of part of the tank, is at much higher level vis-à-vis the level of the tank at the site of Sanmunda village. Thus, all the water flows down to the side of Sanmunda village as there is no embankment to provide minimum water level for the Jharbeda village.

4. The villagers of Sanmunda had earlier approached this Court by filing O.J.C No. 6151 of 1997, which was disposed of on 31.7.1997 It was a Public Interest Litigation. The villagers of Sanmunda had challenged the proposed action of raising embankment over Sanmunda Satrusagar M.I.P On 31.7.1997 this Court disposed of the writ petition by passing the following order:

“The grievance of the present writ petitioner is that the opposite parties 1 to 3, 5 and 9 are trying to interfere with the Sanmunda Satrusagar MIP situated in Jharbeda by illegally putting embankment in the project and leasing out the same for pisciculture.

Learned Addl. Govt. Advocate Mr. R.K Mohanty has made a statement on the basis of instructions received that there is no proposal to raise any embankment by dividing the above project.

After hearing learned counsel for petitioner and learned Addl. Govt. Advocate, we dispose of the writ petition with a direction that O.Ps.2 and 3 shall not raise any embankment by dividing the above project into two parts so as to interfere with the irrigation rights. The Gram Panchayat O.P No. 9 is also directed not to put the project to auction for the purpose of pisciculture.”

5. In the meantime, the villagers of Jharbeda have been undergoing tremendous hardship as the water level in Satrusagar Tank, which has been allocated to their village, is precariously low and the villagers have no other source of water and thus, the inaction of the opposite parties is vitally affecting the daily livelihood of the entire villagers. They have been repeatedly agitating their grievances before the opposite parties, more particularly, the Sub-Collector, Hindol and praying for adequate water supply to the village. The inlet to the tank is through Satrusagar Tank allocated to Jharbeda village and unless steps are taken to provide water to village Jharbeda, the entire villagers would suffer. Unless there is proper boundary in the tank there cannot be adequate water for the villagers of Jharbeda and under these circumstances, the villagers pray that appropriate order be passed directing to construct a boundary in the tank for providing adequate water to the petitioners' village Jharbeda. The Satrusagar Tank is allocated to Jharbeda village, which is under the control of Panchayati Raj Department and the Satrusagar Minor Irrigation Project is under the control of Irrigation Department. There are poles demarcating the two portions allocated to each of the villages. The petitioners, therefore, plead that if boundary is constructed upto a minimum level, the other villagers would not be affected as the same would provide water to both the villagers. The position, as it exists now, would severely affect the present petitioners' village, but by the construction of a boundary, there cannot be any prejudice caused to the other villagers as both the villages will have adequate water supply and the said position would be just and equitable for both the parties concerned. In view of the aforesaid submission, the petitioners have filed this writ petition with the prayer as afore-described.

6. Opposite parties 1 to 5 and 9 have filed their counter affidavit, inter alia, pleading that the land measuring Ac.4.48 dec. appertaining to Hal plot no. 512 under Hal Khata No. 100 of village Jharbeda is recorded in favour of the State in Rakshita holding and the kisam of the land is Jalasaya/2 and the said tank is locally known as “Satrusagar Tank”. It is further stated that adjacent to the said land, another plot of land appertaining to Hal Khata No. 166 of village Sanmunda measuring Ac.7.23 dec. under Hal Plot No. 1562 is also recorded in favour of the State and the kisam of the plot is ‘Jalasaya’. The said jalasaya is locally known as “Satrusagar M.I.P”. The people of Jharbeda have been using the water of the said Satrusagar Tank for the purpose of bathing as well as agriculture. Similarly, the people of village Sanmunda have been using the water of Satrusagar M.I.P for the purpose of bathing and agriculture. At present there is no embankment dividing the water area of the tank and the M.I.P Hence, both the tank and the M.I.P contain water depending upon the natural gradient at the bottom of the tank. Since there is existing dispute between both the villages, it is not possible to construct embankment between the tank and the M.I.P and as such, the opposite parties are not taking appropriate measures to provide water to village Jharbeda. These opposite parties also admit that village Jharbeda is situated at a higher level than Satrusagar M.I.P During rainy season, the rain water flows down through Satrusagar tank and largely accumulates in Satrusagar M.I.P since there is no embankment in between. Earlier there was a small embankment in between the two ponds, but due to heavy flow of rain water from the side of Satrusagar Tank, the small embankment had been gradually washed out. The Satrusagar Tank and Satrusagar M.I.P have been transferred to the management of Kantimili Gram Panchayat and as such, both the tanks are under the control of Kantimili Gram Panchayat. The villagers of Jharbeda had participated in annual public auction of Satrusagar Tank in the year 1997 at Kantimili Gram Panchayat and one Rabi Narayan Nath, son of Ananda Nath of village Jharbeda being the highest bidder had taken the tank on lease for pisciculture by depositing the auction price of Rs. 3050/-. Similarly, Satrusagar M.I.P coming under village Sanamunda had been put to public auction for pisciculture in the year 1994-95 and the people of village Sanamunda Participated in the public auction at Kantimili Gram Panchayat. In the said auction one Sudhakar Behera, son of Chandramani Behera of village Sanamunda being the highest bidder had taken the M.I.P on lease by depositing the auction price of Rs. 2450/-. But however, at present due to the order passed by this Court on 31.7.1997 in the aforesaid writ petition, public auction for the said tanks for the purpose of pisciculture has been stopped.

7. The opposite parties have further admitted that due to scarcity of water, the villagers of Jharbeda have been facing problem for the purpose of bathing and drinking water for cattle etc., but due to the order passed by this Court in the earlier writ petition, no embankment can be raised by dividing the above project into two parts. Therefore, the allegation made by the petitioners regarding the inaction of the opposite parties is baseless. These opposite parties further submitted that appropriate orders may be passed to solve the dispute between the villagers of Jharbeda and Sanmunda.

8. We have heard the learned counsel for the parties and also perused the records. The map which has been annexed as Annexure-1 clearly shows that there was an embankment between Satrusagar Tank and Satrusagar M.I.P It is also admitted by all and sundry that Satrusagar Tank is at a higher plain, which leads to drainage of all rain water towards the Satrusagar M.I.P side and leaves the villagers of Jharbeda without any water to be used for the purpose of bathing, drinking water for the residents of the village and cattle and for irrigation of agriculture land. As such, the petitioners are facing a lot of difficulties. The petitioners, therefore, pray for a provision of water, which is the basic necessity for human life and unless, their need is fulfilled, it shall be violative of Article 21 of the Constitution as water is very much necessary for bare minimum existence of human life and cattle of the villagers.

9. Learned counsel for the opposite parties, on the other hand, very strenuously argued that this writ petition is barred by the principles of resjudicata in view of the order dated 31.7.1997 passed by this Court in OJC No. 6151 of 1997. It is noted here that the order passed in the aforesaid writ petition has not decided any issue on contest, rather it has reiterated the stand taken by the opposite parties that there is no proposal for construction of any embankment in between the tank and M.I.P Thus, there cannot be any bar for filing a fresh writ petition on the principles of res judicata.

10. Moreover, it is seen that the situation has changed and in the meantime 15 years have elapsed and there is acute shortage of water for the villagers of Jharbeda. Hence, we are of the considered opinion that the opposite parties should take appropriate decision in this matter to construct an embankment between Satrusagar Tank and Satrusagar M.I.P or make such other provisions for availability of adequate water for the villagers of Jharbeda.

11. In that view of the matter, this writ petition is disposed of directing the opposite parties 1, 2 and 3 to constitute a team of experts to study the situation and take into consideration all the relevant aspects of the case, decide whether an embankment is necessary for the purpose of providing water to the villagers of Jharbeda within a period of three months from the date of receipt of a certified copy of this judgment. The decision to be taken shall be implemented as expeditiously as possible. In the facts and circumstances of the case, there shall be no order as to cost.

V. Gopala Gowda, C.J

I agree.

Brajabandhu Nath And Others Petitioners v. State Of Orissa & Others Opp. Parties

Structured Summary of the Opinion (S.K. Mishra, J.; V. Gopala Gowda, C.J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Opposite Parties' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Implications and Consequences

Additional Notes

Brajabandhu Nath And Others Petitioners v. State Of Orissa & Others Opp. Parties

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