Chetan Kumar v. Chief Secretary To Government Of Himachal Pradesh
2018-10-22
AJAY MOHAN GOEL, SURYA KANT
body2018
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JUDGMENT Surya Kant, C.J. - The petitioners are the residents of village and post office Sanawarh, Gram Panchayat Kasauli-Garkhal, Tehsil Kasauli, District Solan. They seek, inter alia, a direction to M/s Shubham Propmart (P) Ltd.-respondent No.5 and its Director (respondent No.6) to supply water to the petitioners forthwith from the bore well as also to other permanent residents of their village as per the terms and conditions prescribed in the permit dated 26th February, 2014, as extended from time to time. They also seek a direction to the Member Secretary H.P. Ground Water Authority and Superintending Engineer (Irrigation and Public Health) Department to cancel/withdraw the permission granted to 5th respondent for installation of bore-well as these respondents are allegedly violating the terms and conditions of the permit. A restraint order to seal the bore well and stop its operation has also been sought, besides seeking imposition of penalty on private respondent under Sections 21 and 23 of the Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005 (in short "2005 Act"). The petitioners have further sought a consequential direction not to permit respondent No.5 to proceed with the construction of setting up a hotel and tourist resort. 2. The root cause of controversy in the instant case lies in order dated 26th February, 2014, issued by Himachal Pradesh Ground Water Authority, Shimla, whereby, in purported exercise of powers vested under Section 7 (3) of 2005 Act, permission was granted to respondent No.5 to drill one tube-well in the area of Khata Khatauni No. 48/69, Khasra No. 494/492/5 and 555/113/2 of village Sanawarh, Tehsil Kasauli, District Solan "for the use of ground water for commercial purposes subject to terms and conditions given hereunder". Clause (f) of the terms and conditions stipulates that "the applicant shall provide one water connection to the residents of village Sanawar for drinking purpose." 3. The above stated permission was further renewed in favour of respondent No.5. 4. As noticed at the outset, the petitioners are also residents of village Sanawar and since the 5th respondent did not grant them any water connection as per clause (f) of the permission letter dated 26th February, 2014, as well as allegedly to other residents of the village also, the petitioners have initiated the instant proceedings. 5.
4. As noticed at the outset, the petitioners are also residents of village Sanawar and since the 5th respondent did not grant them any water connection as per clause (f) of the permission letter dated 26th February, 2014, as well as allegedly to other residents of the village also, the petitioners have initiated the instant proceedings. 5. The 2005 Act has been enacted with the object to regulate and control the development and management of ground water and matters connected therewith. Section 3 thereof enables the State Government to constitute the Himachal Pradesh Ground Water Authority to perform the duties as enumerated under Section 5 and other provisions of the Act. The Authority has got a mandate under Section 6 of the Act to maintain and update the database on ground water resources of the State. Section 7 of the Act provides that any user of ground water desiring to sink a well within the notified area shall have to apply alongwith prescribed fee to the Authority for grant of a permit and such applicant shall not proceed with any other activity connected with sinking unless a permit has been granted. Sub Section 3 mandates that the Authority shall satisfy itself before granting the permission and such permission may be granted "subject to such conditions and restrictions, as may be specified." The Authority while granting or refusing permission shall have regard to the objects mentioned in sub section (5) of Section 7 of the Act. 6. As has been noticed earlier, order dated 26th February, 2014 was passed granting permission to respondent No.5 to drill one tube well in purported exercise of powers under Section 7(3) of the Act and while doing so, the Authority imposed the conditions ''a to f'' mentioned in the said order. The alleged deviation or non compliance of condition (f) has prompted the petitioners to approach this Court. 7.
The alleged deviation or non compliance of condition (f) has prompted the petitioners to approach this Court. 7. It is not necessary to refer to the reply(s)/written statement(s) filed on behalf of the respondents and suffice it would be to notice that in deference to the order dated 13th August 2018 passed by this Court, Chief Secretary, Government of Himachal Pradesh has filed an affidavit dated 7.9.2018, relevant part whereof reads as follows:- "In this respect, it is submitted that the permission to sink a bore well was given to the private respondent No. 5 & 6 with the condition, amongst others, that they shall provide one water connections to the residents of village Sanwara for drinking purpose, which has been done only for limited persons with whom they have entered into an agreement. Besides, they have also not fulfilled the other conditions stipulated in the permit dated 26-02-2014 and thus violated the condition of the said permit. It is pertinent to submit here that in compliance to the orders passed by the Hon''ble Court 07-08-2018 the bore well has been sealed and the permission granted vide permit dated 26-02-2014 has also been withdrawn vide Member Secretary, H.P. GWA-cumSuperintending Engineer, P&I-II, IPH Department, Jal Bhawann, Kasumpti, Shimla-9 vide his office order No. 1592- 99, dated 14-08-2018, copy of which is appended as Annexure R-1 for kind perusal of this Hon''ble Court. 3. That the State Water Policy-2013 emphasises the need for scientific management, conservation and regulatory mechanism with regard to the development and exploitation of resource in the State vis-a-vis its periodical re-assessment for regulation so as not to exceed recharging possibilities and also to ensure social equity taking into consideration the quality of available ground water recharge and economic viability of its extraction." 8. It may thus be seen that the official respondents after noticing the violation of terms and conditions of the permission, have vide office order dated 14.08.2018 withdrawn the permission granted to respondent No. 5. The aforesaid action has been taken in deference to the powers vested under Section 11 of the 2005 Act. 9. True it is that with the withdrawal of permission earlier accorded to respondent No.5, the writ petition as such no longer survives.
The aforesaid action has been taken in deference to the powers vested under Section 11 of the 2005 Act. 9. True it is that with the withdrawal of permission earlier accorded to respondent No.5, the writ petition as such no longer survives. On merits, we cannot, however, be oblivious of the fact that the order now passed by State Government under Section 11 of the Act is appealable under its Section 27 and respondent No.5 thus might assail the same before the Appellate or any other Forum. The State Government would thus again be in a fix as to how it should regulate the extraction of drinking water/ground water by private entities under the permits issued under Section 7 of the 2005 Act and how to ensure that the terms and conditions imposed while granting such permission are meticulously complied with. 10. This Court has no hesitation in observing that the condition (f) mentioned in the letter dated 26th February, 2014, is totally vague, evasive and is capable of misuse. It does not specify several factors like as to whether respondent No.5 will bear the expenses for providing water connectivity to the residents of village Sanawar and if so what will be the upper limit/rationing of the water to be supplied to them, hours of supply, the rotation in which the water will be released or how much water shall be consumed by the permit holder for his/its private use etc. and such other relevant considerations are conspicuously missing from this order. 11. Coupled with this is a list Annexure R6/7, which contains the details of permits issued by Himachal Pradesh Ground Water Authority under Section 7 of the Act and in Solan district alone the total permits issued are more than 125. Lakhs of litres of water has been permitted to be extracted everyday through these permits. Water is an invaluable gift by nature to all beings including the mankind. Owing to its scarcity, it has to be saved for the posterity as well. Should, therefore, water be allowed to be used only by the permit holders or to the society at large through its equitable, proportionate and optimum distribution etc., are several burning issues which will have to be addressed by the State Authorities. 12. Ground water is a precious asset. It cannot be allowed to be misused or used with luxury.
Should, therefore, water be allowed to be used only by the permit holders or to the society at large through its equitable, proportionate and optimum distribution etc., are several burning issues which will have to be addressed by the State Authorities. 12. Ground water is a precious asset. It cannot be allowed to be misused or used with luxury. There is an onerous duty on Himachal Pradesh Ground Water Authority to ensure that every permission is conditional with an obligation like rain harvesting to ensure that the ground water level is not depleted. Extraction of water has to be permitted only when the Authorities through scientific process are satisfied about availability of water at the identified spots. 13. Still further, the distribution of the extracted water is a major administrative issue. It involves the rights of village community, gram panchayats, municipalities, private users and several other stakeholders. We are thus of the view that unless the Himachal Pradesh Ground Water Authority, in consultation with and approval of the State Government, formulates a comprehensive policy for the entire State to save, regulate, recycle and harvest the ground water level, it should be reluctant and refrain itself from issuing permits merely for the reason that the Statute has conferred such power on it. 14. We lay emphasis on the fact that the Authority is creation of the 2005 Act and the legislative policy of the Statute very emphatically casts an obligation as to how to regulate and control the development and management of ground water. The time has come to take strict regulatory and reformatory measures to save the ground water even in such areas in the entire State, which are not declared as ''notified areas'' within the meaning of Section 2(h) of the Act. 15. In light of the above discussion, the writ petition stands disposed of with a direction to the State Government and the Himachal Pradesh Ground Water Authority to examine each and every aspect illustrated above and re-visit the existing Rules and Regulations and take an appropriate policy decision, preferably within a period of eight weeks before granting further permits under the Act. The petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.