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2018 DIGILAW 2000 (HP)

Man Mohan v. State Of Himachal Pradesh

2018-11-16

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J. - As similar factual matrix and common issues of law are involved in these writ petitions, the same are being disposed of by a common judgment. 2. The petitioners are residents of villages which are adjacent to the reservoir which has been constructed for the Kol Dam by respondent-National Thermal Power Corporation Limited (hereinafter referred to as ''the NTPC''). The prayer made in the writ petitions is for issuance of a direction to the respondents to acquire the properties of the petitioners (detail of which has been given in the writ petitions), on the ground that the water level in the reservoir has caused damage to their properties/buildings and their houses can collapse any time. As per the petitioners, the damage which is being caused to their properties is accountable to the water level of the reservoir which is not stagnant and if timely action in this regard is not taken by the Authorities, it may result in any mishap. 3. During the course of arguments, on 19.07.2018, this Court passed an order directing the concerned Sub Divisional Officer (Civil) as also the State Geologist to carry out a joint inspection of the properties of the petitioners and thereafter file a comprehensive report in this regard in the Court. Pursuant to the directions so passed, the sites in issue were visited by the concerned Sub Divisional Officer (Civil) as well as the Geologist and reports were also submitted in the Court on the affidavit of the State Geologist. 4. On the perusal of the report(s) so filed by the Joint Inspection Committee, this Court on 05.09.2018 passed the following order: "Pursuant to the orders passed by this Court, report of joint inspection carried out by SDO (Civil) and State Geologist concerned, has been placed on record. A perusal of the report demonstrates that there is danger to the property of the persons referred to in the report, which includes the petitioners also. The relevant portion of the report is reproduced herein-below:- "Koldam Hydroelectric project is a project of national interest and the reservoirs created by dam construction serves to generate hydroelectric power, provide flood control, store water etc., but some time by forming a reservoir behind a dam not only changes the ecology of the reservoir site but also effects its surrounding area. The reservoir area near the said houses neither properly demarcated nor protected by the Dam authorities and there is confusion about the actually acquired land by the NTPC Koldam. All the said property or houses are located near to the reservoir. The slopes near the reservoir are quite gentle. The said house were constructed on River borne material (Terrace deposits), which consists of Boulders, Pebbles, silt, sand, clay. The whole area above the reservoir is a river borne terrace and no major rock formations has been noticed along the reservoir bank. The reservoir water level fluctuates between 642 (Highest) and 636 (lowest) meter levels and saturates the overburden material i.e. terrace deposit which leads to the sinking of land and sliding along the reservoir bank. The properties of Sh. Manmohan Singh, Sh. Prem Lal and Sh. Nand Lal are quite old but clearly shows that the houses are damages due to sinking of the land and thus unsafe, however the other house buildings have also been affected due to sinking of land to some extent, but they seems to be safe. It is therefore recommended that the reservoir banks required to be immediately protected and barricated to avoid any incident. It is strongly recommended that the said area should be monitored continuously and in case of any further settlement or sinking of land observed, then local people should be evacuated and re-settled at suitable location t avoid any damages or causalities." At this stage, learned Additional Advocate General submits that before the matter is heard any further, it will be in the interest of justice, if the matter is taken up after two weeks so that he can take up the matter with the appropriate authorities in view of the contents of the report. Request allowed. List on 19.09.2018, to enable learned Additional Advocate General to have instructions in the matter." 5. On 19.09.2018, learned counsel for the parties were heard at length by this Court. 6. I have carefully gone through the pleadings of the writ petitions as also the report(s) which has been filed by the Joint Inspection Committee. The report(s) of the Committee is self speaking and in my considered view, taking into consideration the fact that the said report(s) has been submitted by a Committee comprising of the concerned SubDivisional Officer and the Geologist, contents thereof can be relied upon. The report(s) of the Committee is self speaking and in my considered view, taking into consideration the fact that the said report(s) has been submitted by a Committee comprising of the concerned SubDivisional Officer and the Geologist, contents thereof can be relied upon. It has been so mentioned in the report(s) that whereas houses of certain petitioners though are quite old, yet they have been damaged due to sinking of the land and have thus become unsafe, similarly, some other buildings though have been affected on account of sinking of the land, but they are quite safe. There is a recommendation in the report(s) that the reservoir banks require to be immediately protected as also barricaded to avoid any incident and in case of any further settlement or sinking of land, the local people be resettled to avoid any damages or casualties. 7. In my considered view, when it is borne out from the contents of the report(s) that in future there can be danger to the lives and properties of persons like the petitioners on account of settlement or sinking of the land because of the reservoir, it is prudent that Authorities initiate action at this stage itself to evacuate and resettle persons like the petitioners at a suitable location to avoid any damages or casualties. Even the Project proponent is expected to have a pragmatic view of the matter, rather than taking a myopic view thereof. 8. The sum and substance of the defence of NTPC is that it has acquired the land of private owners for the construction of reservoir upto the level of 646 meters from the sea level, whereas full reservoir level is 642 meters from the sea level. It is further the contention of the said respondent that the houses/trees of the petitioners are well above 646 meters from sea level and as such, there is no eminent threat to the same. However, in my considered view, in the peculiar facts and circumstances of the cases at hand, technicalities like fixation of full reservoir level etc. should not be construed with rigidity as the Joint Inspection Committee constituted by this Court has given its report(s) that there is danger to the property of the petitioners. Incidentally, no rebuttal to the said report(s) has been filed. 9. should not be construed with rigidity as the Joint Inspection Committee constituted by this Court has given its report(s) that there is danger to the property of the petitioners. Incidentally, no rebuttal to the said report(s) has been filed. 9. Therefore, here what is required is that all the stakeholders should sit together and thereafter take a decision which is in the interest of all. Accordingly, these writ petitions are disposed of with the following directions:- "(i) The Deputy Commissioner concerned shall convene a meeting of all the stakeholders within a period of one month from the date of receipt of a copy of this order. In the meeting, the petitioners, authorized representatives of respondent-NTPC, Sub Divisional Magistrate concerned, State Geologist or his representative and a competent officer of the Revenue Department from the area concerned should be associated, (ii) The Deputy Commissioner shall make an endeavour that an amicable settlement is arrived at between the parties with regard to acquisition of properties of the petitioners and/or their re-settlement in view of the report of the Joint Inspection Committee constituted by this Court; and (iii) In case the parties do not arrive at any amicable settlement, then Deputy Commissioner shall pass appropriate directions in this regard to ensure the safety of the life and property of the petitioners, be it by issuing directions for acquisition of land and/or their re-settlement/rehabilitation in some other area. This shall be done within a period of one month from the date, the meeting is convened. Petitions stand disposed of in above terms, so also pending miscellaneous applications, if any.