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2012 DIGILAW 680 (HP)

Panna Lal v. State of Himachal Pradesh

2012-10-04

DEEPAK GUPTA, RAJIV SHARMA

body2012
Judgment Deepak Gupta, J 1. This petition is purported to have been filed in public interest by the residents of Jagatsukh and they have prayed for grant of following relief:- “It is therefore most respectfully prayed that the petitioners may kindly be granted minimum 505 LPS of water to their requirements.” 2. It is not disputed that the Allain Duhangan Hydro Electric Project (ADHEP) has been set up in the area in question which would definitely affect the availability of water to the petitioners through the Duhangan nallah. The petitioners had, therefore, earlier filed CWP No. 620 of 2005. In that writ petition, a direction was issued on October 6, 2005 that a Multi Member Committee be constituted by the Principal Secretary (Power) to the Government of Himachal Pradesh. This team was to hear the grievances of the petitioners and after inspecting the spot submit a report to the Court. 3. The Committee submitted its report and observed as follows:- “1.(a) The matter regarding issue of NOC by the then President of Gram Panchayat Jagatsukh village is administrative/legal in nature and the Committee members are not in a position to express any opinion on this issue. 1.(b) Upon inspection of Duhangan Stream and the nallahs joining it upto the confluence of Kalo Nallah, it was observed that except some flow in Kalo nallah which was roughly 1/5th to 1/6th of flow in Duhangan Stream, the rest of nallah joining Duhangan Stream between the Duhangan weir site and Kalo Nallah. Thus, the apprehension of the villagers that unless their requirement of water is got released from Duhangan weir, they are likely to face shortage of water appears to be genuine.” 4. The final conclusion of the Committee was that 20 LPS of water would be sufficient for the requirements for drinking water, domestic use, cattle and floating population up to the year 2005. The Committee, however, recommended that requirement for irrigation should be worked out by the IPH Department. 5. Thereafter, on 24.4.2006, this Court passed a detailed order for constitution of a fresh committee consisting of the Deputy Commissioner, Kullu, Superintendent Engineer (I&PH), Kullu, Deputy Director Horticulture, Kullu and Deputy Director Agriculture, Kullu to assess the total availability of water from Duhungan stream and other natural water bodies available to the villagers of Jagatsukh village. 5. Thereafter, on 24.4.2006, this Court passed a detailed order for constitution of a fresh committee consisting of the Deputy Commissioner, Kullu, Superintendent Engineer (I&PH), Kullu, Deputy Director Horticulture, Kullu and Deputy Director Agriculture, Kullu to assess the total availability of water from Duhungan stream and other natural water bodies available to the villagers of Jagatsukh village. This committee was also to assess the present and future requirements of water of the villagers of Jagatsukh village especially for irrigation purpose. The committee was also to recommend the quantity of water which should remain in Duhungan stream to meet the requirements of Jagatsukh village. This committee was to assess the requirement strictly in the light of the report of the multi member committee previously appointed by the Court. The Deputy Commissioner, Kullu alongwith three other officials aforesaid were to visit the spot and ascertain the views of both the project authorities as well as the villagers. 6. This committee submitted its report and the relevant portion of the same reads as follows:- “Irrigation: the total area of Jagat Sukh Panchayat is 496-52-08 Hectare as per revenue record (copy annexed). Out of total area at present 249-41-96 Hectare area is under cultivation. The present requirement for irrigation based on the cropping pattern as per Revenue record is 192.23 LPS as per Annexure “D”. Remaining 247-10-12 Hectare land is either forest land or presently not developed. It is assumed that 50% land after deducting the forest land will be developed by the people of Jagat Sukh Panchayat and will be used for agriculture/horticulture purpose. Thus the future requirement worked out based on the present cropping pattern is 240.06 LPS as per Annexure “F”. In summary the committee recommends that the requirement of 249.30 LPS should be released/maintained by Project Authorities in Duhangan Nallah for meeting the water requirement of Jagat Sukh Panchayat. This requirement is in addition to the 15% minimum discharge to be maintained in the stream as per notification No. PC-F(2)-1/2005 dated Shimla-2, 9.9.2005 by Principal Secy. (Pollution Control) to the Govt. of Himachal Pradesh (copy annexed). Thus, the overall present water requirement works out to be 335.85 LPS and ultimate/future water requirement works out to be (for the year 2045) 387.09 LPS. This discharge can be ensured by installation of discharge meter.” 7. (Pollution Control) to the Govt. of Himachal Pradesh (copy annexed). Thus, the overall present water requirement works out to be 335.85 LPS and ultimate/future water requirement works out to be (for the year 2045) 387.09 LPS. This discharge can be ensured by installation of discharge meter.” 7. Thereafter, when the writ petition came up for hearing, it was disposed of by a Division Bench of this Court in the following terms:- “This Court had constituted a Committee which examined the matter from all possible angles and submitted its report. Mr. Mittal, learned Senior Advocate on 12th December, 2006 agreed with the report of the Committee. However, he had certain reservations and in continuation to the said reservations certain objections had been filed by Mr. Mittal. How much water is required by the petitioners is a technical matter which can be examined by the Technocrats of the Government, i.e. Engineers of the Irrigation Department. While considering the matter the authorities shall take into consideration the report of the Agriculture and Horticulture Departments as well. We further provide that while the authorities are examining the requirement of the water by the residents they may take into consideration the objections filed on behalf of the petitioners. We hope and trust that the above exercise would be done within a period of six months. The Company may also approach the authorities to place their case. However, till the matter is decided, as per recommendations of the Committee, minimum water should be supplied to the petitioners-residents.” 8. It may be noticed that Mr. S.S. Mittal, learned Senior Counsel appearing on behalf of the petitioners had not objected to the report of the committee though he had certain reservations about the same. Again a fresh Committee went and submitted its report. It granted some additional water for public latrines, etc. and came to the conclusion that the ultimate water requirement including irrigation is 250.61 LPS in addition to the 15% minimum discharge to be maintained as per the notification of the Government. Relevant portion of the report of the committee reads as follows:- “3. The total area of Jagatsukh Panchayat is 497-19-05 Hects out of total area at present 245-94-35 Hects being affected due to above project construction in phati Jagatsukh (private cultivate land measuring 216-56-49 Hects and private uncultivable land measuring 29-37-86 Hects) Total Govt. Relevant portion of the report of the committee reads as follows:- “3. The total area of Jagatsukh Panchayat is 497-19-05 Hects out of total area at present 245-94-35 Hects being affected due to above project construction in phati Jagatsukh (private cultivate land measuring 216-56-49 Hects and private uncultivable land measuring 29-37-86 Hects) Total Govt. land measuring 251-24-70 hectares fall under the above project area of Jagatsukh is forest land. As per Forest Conservation Act forest land can not be used for non forest purpose (cultivation). Therefore there is no need for additional requirement of water for forest land/vacant land. As there is no increase in the area of irrigation hence committee report submitted in the Hon’ble High court dated 8.7.2006 previously holds good.” 9. The petitioners have claimed that some members of the committee did not visit the site and water for irrigation purposes has not been properly calculated inasmuch as the villagers are growing paddy crop which has not been taken into consideration. 10. On the other hand, Ms. Jyotsna Rewal Dua, Advocate submits that the respondents shall comply with the recommendation of the Committee and she submits that the land which is shown to be under vegetable cultivation in the documents filed by the petitioners is actually also the land which is used for growing paddy and therefore, the requirement of water for purposes of growing paddy has also been taken into consideration. 11. From the extract of the information given to the petitioners by the Tehsildar, Manali, it is apparent that the total land in village Jagatsukh is 496-52-18 Hects. Out of this, 51-62-77 Hects is cultivated land first class. Paddy can only be grown in the ropa land but this is now shown to be an orchard. In any event the forest land is 122-95-47 Hects, the Gairmumkin land is 67-54-64 Hects and the abadi land is about 6 Hects. In addition thereto the grazing land is more than 50 bighas. Thus, more than half the land does not require to be irrigated. More than 33 acres of land is in unauthorized possession of the villagers and we cannot encourage unauthorized possession by calculating the land in authorized possession for purposes of calculating the water requirement. In any event the water requirement has been calculated for almost 300 acres whereas it is apparent that not more than 240 acres can be cultivated. 12. More than 33 acres of land is in unauthorized possession of the villagers and we cannot encourage unauthorized possession by calculating the land in authorized possession for purposes of calculating the water requirement. In any event the water requirement has been calculated for almost 300 acres whereas it is apparent that not more than 240 acres can be cultivated. 12. The other argument of the petitioners is that the water of Kalo nallah should not be taken into consideration and at the project site the respondents should release the full requirement of water in addition to 15% minimum of discharge from the weir side. We are unable to appreciate this argument. The Kalo nallah meets the Duhangan nallah much above village Jagatsukh. It becomes a part of the Duhangan nallah thereafter and the villagers are concerned with the quality of water which is available to them. As long as the water requirements are met, the villagers are not concerned as to whether the water originally flows from the Kalo nallah or from the Duhangan nallah. We therefore, dispose of the writ petition with the following direction:- That respondent No.2 shall ensure that minimum 250.61 LPS of water is available in the Duhangan nallah for the villagers of village Jagatsukh in addition to the 15% discharge which the Hydro Electric Project is bound to release in accordance with law. 13. The writ petition is disposed of in the aforesaid terms. No order as to costs.