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2012 DIGILAW 537 (HP)

Shashi Sharma v. Gaurav Bhardwaj

2012-09-12

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Dharam Chand Chaudhary, J. (Oral) The challenge herein is to the order dated 28.6.2012, Annexure P-6, passed in a Complaint (Diary No.2725/5-5-2012) by the Sub Divisional Magistrate, Sarkaghat, District Mandi, whereby the petitioner has been directed to restore the hand pump installed in village Nagrota to its original position within a period of 15 days, failing which the Assistant Engineer, Irrigation & Public Health, Sub Division, Baldwara, to restore the hand pump to its original position, may be with the assistance of police, if need be. A direction has also been issued to the Assistant Engineer, HPSEB, Baldwara to withdraw the electricity connection released in the name of the petitioner for agriculture purpose, forthwith. 2. Undisputedly, the hand pump was installed in the year 2004 in village Nagrota to which the petitioner and the private respondent belongs under “Swajal Dhara Scheme”, Annexure P-2, launched by the Government of India, Ministry of Rural Development, Department of Drinking Water Supply, with the sole object to provide drinking water free of cost to the public at large under the logo “Swajal Dhara Gram Hamara”. It is thus seen that the motive behind “Swajal Dhara Scheme” is to provide drinking water to every body free of costs which otherwise also is a social right by installation of hand pumps in rural areas. Under the Scheme 10% of the estimated cost of installation of a hand pump has to be shared by the villagers whereas the remaining 90% by the Government of India. In the State of H.P. the scheme is being implemented through Irrigation & Public Health Department. 3. Under the aforesaid Scheme, one hand pump was proposed to be installed in village Nagrota, the village of the petitioner and the 1st respondent. The villagers, including the petitioner vide receipt Annexure P-1 deposited a sum of Rs.10000/- , the cost of installation of this hand pump to the extent of their share, i.e. 10%, with the Irrigation and Public Health Department, Sarkaghat, District Mandi. The hand pump, in question, was installed in the village somewhere in the year 2004. 4. As per the allegations levelled in the complaint made to the 2nd respondent, the petitioner somewhere in the year 2009 managed an electricity connection for agriculture purpose in his name and installed submergible pump permanently by cordoning the hand pump, in question, with brick masonry. 4. As per the allegations levelled in the complaint made to the 2nd respondent, the petitioner somewhere in the year 2009 managed an electricity connection for agriculture purpose in his name and installed submergible pump permanently by cordoning the hand pump, in question, with brick masonry. He connected the tanks kept on the roof of his house by laying a pipe line from the hand pump and started lifting water to those tanks and therefrom diverted the water further to another tank kept on the roof of his bath room and from bath room tank, he made provision for distribution of water to the villagers through a tap, installed at the site of the hand pump. 5. The 2nd respondent after having taken cognizance of the complaint, got the matter enquired into through Naib Tehsildar Baldwara, who in his report, recommended the removal of submergible pump installed by the petitioner so as to restore the hand pump to its original position. The 2nd respondent also requisitioned the record from the office of the Assistant Engineer, HP SEB, Baldwara and also from the office of Assistant Engineer, I &PH, Baldwara. After having gone through such record, he noticed that the hand pump was installed under Swajal Dhara Scheme on deposit of Rs.10,000/-, towards the share of the public, deposited by the petitioner and other villagers. It is further surfaced during the course of inquiry conducted by the 2nd respondent that the H.P. State Electricity Board, Baldwara had released electricity connection in the name of the petitioner for agricultural purposes. The petitioner was also found to have fixed a submergible pump permanently in the hand pump and cordoned the same with brick masonry in such a way that it is not accessible to anyone, including the villagers. 6. After going through the allegations against the petitioner and the evidence collected by the 2nd respondent during the course of inquiry, he passed the impugned order Annexure P-6 and issued the following directions: “Therefore, under these circumstances, I hereby order and direct Sh. Shashi Kumar Sharma S/o Amar Nath resident of village Nagrota, Sub Tehsil Baldwara to restore the hand pump to its original position within a period of 15 days from the receipt of these orders, failing which A.E. I&PH Sub Division Baldwara will take necessary steps to restore the hand pump to its original position with the assistance of police, if needed. I also direct A.E. HPSEB Baldwara to withdraw the electricity connection released in the name of Sh. Shashi Kumar for agriculture purpose forthwith. Copy of the order be sent to the following: 1. Sh. Shashi Kumar Sharma S/O Amar Nath resident of village Nagrota, Sub Tehsil Baldwara. 2. Sh. Gaurav Bhardwaj and others residents of village Nagrota, Sub Tehsil Baldwara. 3. The Assistant Engineer (I&PH) Baldwara. 4. The Deputy Superintendent of Police Sarkaghat, District Mandi, H.P. 5. The Assistant Engineer HPSEB Baldwara. 6. The Executive Engineer (I&PH) Division Sarkaghat, District Mandi, H.P.” 7. On 20.7.2012, the order passed by this Court in this writ petition reads as follows: “ Petitioner submits that the first respondent does not come under the user group and none of the members of the user group has any complaint for the supply of water. 2. Naib Tehsildar, Baldwara, Tehsil Sarkaghat, District Mandi, will stand impleaded as additional 3rd respondent. There will be a direction to the Naib Tehsildar, Baldwara, to conduct a local enquiry and collect report from all the members of the user group and submit a report to this Court within a month. In the meanwhile, there will be a stay of further proceedings pursuant to Annexure P-6” 8. Consequently, the 3rd respondent i.e. Naib Tehsildar, Baldwara conducted the spot inspection and placed on record of this petition, his report dated 6.9.2012, on which day, after going through the report, the following order came to be passed in this writ petition: “ Reply filed on behalf of respondent No.1 is taken on record. Sh. Rigzingialid, Naib Tehsildar, Baldwara is present in person and has placed on record a copy of the report, he prepared after conducting spot inspection, consequent upon our order passed in this writ petition on 27th July, 2012. Perusal of the report and photographs produced by the 1st respondent alongwith reply reveals that the hand pump has been cordoned with bricks and cement masonry hence not accessible to the general public and prima-facie being used exclusively by the petitioner. Learned counsel for the petitioner seeks adjournment to go through the report and have instruction.” 9. The relevant portion of the report, submitted by the 3rd respondent, is extracted hereinbelow: ” On 31.7.2012, the undersigned has also visited the spot and verified the each and every facts pertaining to this inquiry. Learned counsel for the petitioner seeks adjournment to go through the report and have instruction.” 9. The relevant portion of the report, submitted by the 3rd respondent, is extracted hereinbelow: ” On 31.7.2012, the undersigned has also visited the spot and verified the each and every facts pertaining to this inquiry. The undersigned has found that a hand pump is there and a submersible pump has been installed in the pump for exploitation of its water and the Electricity connection was given from the house of Shashi Kumar wherein a separate meter under agriculture purpose is installed. The water pump has been cordon of with the help of bricks and cement and not visible and its is duly covered with the cement and bricks. During the spot inspection, the some user group of the village was supporting the submersible pump and they are saying that they are getting sufficient water but other group of the village who are saying that they are not getting the water from this hand pump since the water of the hand pump is exploited by the petitioner for the agriculture purpose and some of the water was used by other person of the village whose houses are adjoining to the house of the petitioner. I had also seen the process of the water how the water was exploited from the source. The hand pump is started by the power connection and while the water exploited from the hand pump then the supply was given to the storage pump after that some of the water was given to the some adjoining houses through pipes from the storage tank, but general public is not getting any water as well as other user group is not getting water from this hand pump. From the verification of the IPH deptt. qua the rates of boring of the pump then it was cleared that the rate of government boring of the pump is 645 Rs. Per feet and this hand pump is approximately 250 to 280 feet and the govt. money was used for the installation of this pump. From the guideline of Swa Jaldhara Yojna, this scheme is only meant for drinking water and rural drinking water supply sector were adopted in 1999 in the country and pilot water project in selected districts were taken up. money was used for the installation of this pump. From the guideline of Swa Jaldhara Yojna, this scheme is only meant for drinking water and rural drinking water supply sector were adopted in 1999 in the country and pilot water project in selected districts were taken up. The basic concept of the reforms include community participation in the planning, implementation, operation and maintenance of the scheme of its choice. On 25.12.2002, the Hon’ble Prime Minister launched the Swa Jal Dhara by scaling up the said sector reforms initiatives through the country. This scheme is not applicable to the irrigation and agricultural work. During the spot report, the people of the area/other user group was demanding that the hand pump must be restored in its original position and every person of the village must be get water as and when required by them and the monopoly of the petitioner and other some person must be stopped over the hand pump. The report is submitted along with relevant documents for the perusal of the Hon’ble Sir. “ 10. A perusal of the above extracted portion of the report reveals that there are two groups in the same village and it may be for variety of reasons that someone nearer to the petitioner, including his relations, are supporting him, whereas the others, who may not be getting adequate water or may be inimical to the petitioner, formed the other group. So far as the facility of water is concerned, the whole village has to be taken as one unit and everybody has a legal right to get water from this hand pump being installed under the aforesaid scheme by all the villagers. 11. It is in the aforesaid backdrop that I have heard learned counsel on both sides and also gone through the entire record. 12. In view of the material as has come on record, the parties were persuaded not to quarrel on this issue and reminded that to provide water is a religious and pious obligation on each human being, hence a water source should not be cordoned like the present one and rather allowed to be used not only by the villagers, but the passersby also. 13. 13. It is heartening to note that learned counsel, representing the petitioner, on instructions, while agreeing to remove the submergible pump and the brick masonry structure laid around the hand pump, has submitted that the other hand pumps installed under the Swajal Dhara scheme in the village be also treated at par the present one and that the nd respondent to ensure removal of the cordoning of those hand pumps also. Learned Deputy Advocate General and also the learned counsel, representing the 1st respondent, have readily agreed for removal of such type of cordoning from hand pump(s), if any made by anyone else also in the village. 14. In view of the aforesaid development, there hardly remains any need for this Court to go into merits and the writ petition can rather be disposed of with the following directions: 15. There shall be a direction to the 2nd respondent to ensure the removal of the structure whereby the cordoning of the hand pump, in question, has been done by the petitioner and also to the petitioner to remove the submergible pump therefrom so that this hand pump is accessible to each and everyone. The petitioner is free to get the electricity connection disconnected. The 2nd respondent shall further ensure that a handle is provided by the Irrigation and Public Health Department for pumping out the water from this hand pump. The 2nd respondent shall also conduct the inspection of the area to find out as to whether similar type of cordoning of any hand pump(s) installed in the village under the aforesaid scheme has been done by any one else, and if so, to ensure removal thereof so that such hand-pumps are also accessible to each and every one and not to a particular individual(s), within two weeks from the date of receipt of a copy of this judgment, which will be supplied by the 1st respondent. 16. Writ petition stands disposed of accordingly in the aforesaid terms. Pending application(s), if any, shall also stand disposed of. The matter, however, be posted on 19.10.2012 at 4.30 p.m. for perusal of the compliance report to be filed by the 2nd respondent, in terms of the directions hereinabove.