IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

CWP No.1537 of 2018 Date of decision : 30.07.2018 Sh. Rajiv Kumar .... Petitioner.

Versus State of Himachal Pradesh and others .... Respondents. Coram:

The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.

The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. C.N. Singh and Mr. Rupinder Singh, Advocates.

For the Respondents : Mr. Ashok Sharma, Advocate General with Mr. Ajay Vaidya, Senior Addl. A.G., Mr. Ranjan Sharma, Ms. Rita Goswami and Mr. Nand Lal Thakur, Addl. A.Gs. for State.

Ms. Reena Thakur, Advocate for R-8. Mr. Amit Singh Chandel, Advocate, vice Mr. Sunny Dhatwalia, Advocate for R-9.

Mr. Maan Singh, Advocate for R-10.

Sanjay Karol, Acting Chief Justice (Oral) Shri Anil Kumar Bahri, Chairman, Ground Water Authority-cum-Engineer-in-Chief, I&PH Department, Himachal Pradesh, is present in person.

Whether reporters of Local Papers may be allowed to see the judgment?

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2. Petitioner has prayed for the following reliefs:-

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"i) Issue a writ of Mandamus directing the respondent department to immediately look into the grievances of the petitioner/local residents of the area and take action against respondent No.9 w.r.t. his act and conduct of misuse of the hand pump installed at village Batol, P.O. Sarahan, Tehsil Pachhad, District Sirmour, H.P.

ii) Issue a writ of mandamus or other appropriate writ or order directions to the respondents department to close down the handpump of respondent No.9 on account of being un authorized, run contrary to rules and regulations in this regard and drying up local water sources.

iii) Issue a writ of mandamus or other appropriate writ or order directions directing the respondent department to recover the commercial utilization charges from the respondent No.9 for commercially exploiting the hand pump and withheld the payment due from the various government departments for the supply of the water.

iv) Issue a writ of mandamus or other appropriate writ or order direction directing the respondent No.2 to initiate disciplinary criminal action ::: Downloaded on - 03/08/2018 22:57:43 :::HCHP ...3...

against the respondent No.8 for his act of assaulting the injured petitioner in the police .

station".

3. On 20.7.2018, we had passed the following order:-

"Dasti notice be issued to respondent No.8, returnable for 27.7.2018, on taking steps during the course of the day itself. On taking such, steps, dasti notice be handed over to the learned counsel on 21 st July, 2018.

2. On the oral request of Mr.Ranjan Sharma, learned Additional Advocate General, Himachal Pradesh Ground Water Authority under the Himachal Pradesh Grounds Water (Regulations and Control of Development and Management) Act, 2005, through its Chairman, is impleaded as party respondent No.11 in the array of the respondents. Registr y to carry out necessary correction in the memo of parties. Let amended memo of parties be filed within two days.

3. Issue notice to the newly arrayed respondent. Mr.Ranjan Sharma, learned Additional Advocate General waives notice on behalf of the said respondent.

4. Petitioner contends that respondents No.8 and 9, namely, Sh. Raghuvir Singh and Sh.Madan Dutt, respectively, have set up a ::: Downloaded on - 03/08/2018 22:57:43 :::HCHP ...4...

water pump, through which water is being pumped into the water tankers and distributed .

on commercial basis. As a result of such activity, nearby water sources have dried up, causing water scarcity in village Batol, P.O. Sarahan, Tehsil Pachhad, District Sirmaour, Himachal Pradesh.

5. On 6.7.2018, we had directed the Executive Engineer I & PH, Nahana, Division Nahan, District Sirmour and Himachal Pradesh State Pollution Control Board (respondents No.7 and 10 respectively) to carry out joint inspection. Pursuant thereto, inspection report is stated to have been filed in the Registry though not on record. However, a copy whereof is shown to us in the Court and we have perused the same.

6. It stands admitted that Sh.Madan Dutt (respondent No.9) has drilled a borewell of 125 mm dia (5 inch) on his land and has energized it through submersible pump. The stand taken by the Executive Engineer, I & PH, almost expressing his helplessness in taking action is non-issuance of any notification under the provisions of Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005.

7. Let Additional Chief Secretary I & PH, Government of Himachal Pradesh (respondent ::: Downloaded on - 03/08/2018 22:57:43 :::HCHP ...5...

NO.1) file his personal affidavit stating whether any conscious decision stands taken not to .

issue any notification with respect to village Batol P.O. Sarahan Tehsil Pachhad District Sirmour. If not, as to whether any such decision is warranted and required to be taken, and if so, within how much time the same shall be done.

8. This leads us to another issue as to whether Himachal Pradesh State Pollution Control Board is precluded from exercising its jurisdiction under the various Environmental Laws of the land.

9. Thus far, Himachal Pradesh State Pollution Control Board has remained silent in either explaining their stand or taking action, if so required, in accordance with law.

10. Before we pass any further order, we direct the Chairman of the Himachal Pradesh State Pollution Control Board to have the matter examined and take appropriate action, if so required, in accordance with law, before the next date of hearing and file his personal affidavit with regard thereto.

11. List on 27 th July, 2018, when Chairman of the newly arrayed respondent No.11 shall personally remain present in Court."

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4. We have examined the provisions of the Himachal Pradesh Ground Water (Regulation and .

Control of Development and Management) Act, 2005 (hereinafter referred to as "the Act") as also affidavits dated 26.7.2018 filed by Secretary (I &PH) to the Government of Himachal Pradesh and dated 24.7.2018 filed by Chairman, H.P. State Pollution Control Board.

     5.           Having


                           heard    learned     counsel

parties, we conclude that as of date, the place where borewell stands installed and water pumped by private for the respondents No.8 and 9 namely, Shri Raghuvir Singh and Shri Madan Dutt, there is no provision regulating such activity. The provisions of the Act do not cover the area to be the "notified area".

6. Insofar as the applicability of the provisions of the Water (Prevention and Control of Pollution) Act, 1974, is concerned, there has to be some scientific/data base for the authorities constituted thereunder , to determine, as to whether any one of the provisions of the Act, stands violated or not. More ::: Downloaded on - 03/08/2018 22:57:43 :::HCHP ...7...

so, in the absence of such data before us, we cannot issue directions to the authorities functioning .

thereunder. In any event, we find the Chairman of the H.P. State Pollution Control Board, to have filed his personal affidavit dated 24.7.2018, indicating that in the activity of pumping of water, there is no change in the quality and process and also no effluent is being generated.

We wish not to comment any further thereupon, save and except that it is always open for the writ petitioner to provide all material, necessary for invoking action by the State Pollution Control Board, for having violated any of the environmental laws of the land.

7. Our attention is invited to the affidavit dated 26.7.2018, filed by the Principal Secretary (I & PH) to the Government of Himachal Pradesh, wherein it stands assured that in any event, the issue of examining the viability of covering the area in question, shall be considered within the next few months.

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8. At this stage, we are none to advise what the government must do for fulfilling the intent, .

purpose and object of the Act. However, we do wish to point out that most of the are a of State of Himachal Pradesh now stands urbanized, particularly along National Highways/State Highways cris scrossing the entire State. The scarcity of water is an issue in Himachal Pradesh. Judicial notice can be taken of the fact that in another matter, which we are dealing with, it has come on record that at least in three districts of the State, distribution of water through Public Distribution System is below the minimum norms. In rural areas, particularly in these districts, distribution of water through priv ate tankers is being carried out, more so, considering the demand generated on account of floating tourist population.

9. It is under these circumstances, we would only request the government to take a decision, after holistically factoring the prevalent conditions at the ground level.

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10. We are informed that the government is likely to take a decision within a period of three .

months. Well, on this count, we would only request the Principal Secretary (I & PH) to the government of Himachal Pradesh, to have the matter expedited.

11. Insofar as the plea of inaction on the part of the police authorities in not promptly taking action against the private respondent No.8, namely, Shri Raghubir Singh is concerned, Mr. Ranjan Sharma, learned Additional Advocate General, assures that needful shall positively be done, in accordance with law.

12. No other issue is raised.

With the aforesaid observations, present petition stands disposed of, so also, pending application(s), if any.

                                              (Sanjay Karol),
                                          Acting Chief Justice


                                             (Ajay Mohan Goel),
     July 30, 2018   (KS)                          Judge.




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