Himachal Pradesh High Court
Vijay Arora vs . State Of H.P. & Ors. on 31 May, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
Vijay Arora vs. State of H.P. & Ors.
CWP No. 1235 of 2018 31.05.2022 Present: Mr. Anup Rattan & Mr. Arsh Rattan, Advocates, for the .
petitioner.
Mr. Rajinder Dogra, Sr. Addl. A.G. with Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Addl. A.Gs., Mr. Yudhbir Singh Thakur, Dy. A.G. and Mr. Rajat Chauhan, Law Officer, for respondents-State.
Mr. N. K. Gupta, Advocate, for respondents No. 5 and 6. Mr. Lokender Thakur, SCGSC, for respondent No. 7.
Mr. T. S. Chauhan, Advocate, for HPSEBL.
Mr. Maan Singh, Advocate, for pollution Control Board.
On 17.05.2022, the Court passed the following orders:-
Mr. Adarsh Chauhan, Assistant Engineer, SJPNL is present in person and states that one of the major issues which the Nigam facing is fluctuation of voltage, especially during the winter months. He further states that he has adequate data and the same shall be supplied to the learned counsel for the HPSEBL during the course of the day. His statement is taken on record. Mr. T.S. Chauhan, Advocate, in turn assures this Court that no stone shall be left unturned regarding this issue and shall be rectified before the next winters. Further problem which he, i.e. Mr. Adarsh Chauhan, points out is regarding the formation of silt in the rivers, primarily due to excavation being carried out for the purpose of construction of roads, buildings and because of illegal dumping in the river bed sides. In the given facts and circumstances, we deem it appropriate to restrain every person/authority etc. from dumping any silt or excavated material in the Giri Ganga river from Khadapathar up to Giripul.::: Downloaded on - 01/06/2022 20:06:06 :::CIS -2-
The Nigam shall ensure that there are adequate amount .
of pumps, so that failure of one does not lead to total disruption of supply of water.
The Nigam will also explore the possibility of adopting non-conventional energy like solar power and wind power.
The Nigam shall highlight other issues as are being faced by them or causing impediment in the collection or distribution of water alongwith suggestions and solutions to rectify the same before the next date of hearing."
2. Learned r to Standing Counsel for Electricity submits that henceforth there shall be no fluctuation in Board voltage, especially, in the winter months, which may hamper pumping and lifting of water. Let an affidavit to this effect be filed by the Electricity Board on or before the next date of hearing.
3. He further states that the transformer as was ordered by his client would in all likelihood reach within two weeks. Let report in this regard be filed alongwith the aforesaid affidavit.
4. Mr. N. K. Gupta, learned Advocate, on instructions, states that the pumps that had been sent for repair have been received back after repair and would be kept as standby so as to ensure that there is no disruption in supply of water.
5. We are informed at the Bar that the number of natural resources have been tapped by the individual(s) without any right ostensibly for the reasons that such water resources are located in their property, which is clearly a misconception as it is more than settled that water is the property of the State and no individual(s) whosoever has any ::: Downloaded on - 01/06/2022 20:06:06 :::CIS -3- right to claim this property even though situated within his .
property.
6. In M. C. Mehta vs. Kamal Nath & Ors. (1997) 1 SCC 388, the Hon'ble Supreme Court has laid down that the river is a public property. It cannot be given for private use.
Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources.
These resources meant for public use cannot be converted into private ownership. The public trust doctrine is a part of law at present. Even in absence of legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. Large area of the bank of River Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. The area being ecologically fragile full of scenic beauty should not have been permitted to be converted into private ownership and for commercial gains. The Hon'ble Supreme Court held that the Government of Himachal Pradesh has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. The lease transactions are in patent breach of the trust held by the State Government. Therefore, the Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area.
::: Downloaded on - 01/06/2022 20:06:06 :::CIS -4-7. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the .
forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature.
They should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the government to protect the resources for the enjoyment of the general public rather than to permit then-use for private ownership or commercial purposes.
8. In Tirupathi vs. State of A.P. & Ors. AIR 2006 SC 1352, the Hon'ble Supreme Court has laid down that the government is bound to protect historical tanks qua concept of 'sustainable development' and 'public trust doctrine'.
Destruction of local ecological resources is not permissible.
Property subject to trust must not only be used for a public purpose, but it must be held available for use by general public. Property must be maintained for particular types of use (I) either traditional uses, or (ii) some uses particular to that form of resources. Principle of 'Inter-Generational Equity' also to be applied for protecting natural resources has also been taken into consideration by their Lordships of the Hon'ble Supreme Court. The Hon'ble Supreme Court has held that the tank is a communal property and State authorities are trustees to hold and manage such properties for benefits of community.
State cannot be allowed to commit any act or omission which will infringe right of community and alienate property to any ::: Downloaded on - 01/06/2022 20:06:06 :::CIS -5- other person or body. Fact that the party has spent money on developing land is immaterial.
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9. In Susetha vs. State of T.N. & Ors (2006) 6 SCC 543, the Hon'ble Supreme Court observed that natural water storage resources are not only required to be protected but also steps are required to be taken for restoring the same if it has fallen in disuse. The Hon'ble Supreme Court has also observed that the same principle cannot be applied in relation to artificial tanks.
10. In Centre for Public Interest Litigation and Ors.
vs. Unon of India & Ors (JT 2012 (2) SC 154), the Hon'ble Supreme Court observed that there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. The government is bound to protect environment, forest, air, water, coastal zones etc. the State Government is bound to act as guardian and trustee in relation ::: Downloaded on - 01/06/2022 20:06:06 :::CIS -6- to catchment area of the pond, lake or river. People are owner of the natural resources.
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11. The Hon'ble Supreme Court in the case of Centre for Public Interest Litigation (supra) referred to the decision in Fomento Resorts and Hotels Limited vs. Minguel Martins (2009) 3 SCC 571 and has laid down that the public trust doctrine enjoins upon the Government to protect the resources for enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It has also observed that public has special interest in public land water etc. It is the duty of the State not to impair such resources. The Hon'ble Supreme Court emphasized that there is obligation to use such resources in such a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resources, including down slope lands, waters and resources.
12. In Fomento Resorts and Hotels Limited vs. Minguel Martins (supra), the Hon'ble Supreme Court has laid down thus:-
53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.::: Downloaded on - 01/06/2022 20:06:06 :::CIS -7-
54.The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and .
their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" (1970), indicates that the Public Trust Doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.
55. The Public Trust Doctrine is a tool for exerting long-
established public rights over short-term public rights and private gain. Today, every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long term interest in that property or resource, including down-slope lands, waters and resources.
13. There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48A of 15 the Constitution requires that the ::: Downloaded on - 01/06/2022 20:06:06 :::CIS -8- State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country. Similarly, .
Article 51A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for all the living creatures. In view of the constitutional provisions, the doctrine of public trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, water and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership.
14. If the officials are inactive and insensitive towards the encroachments in public lands and water bodies, it would amount to infringing the constitutional rights of other citizens, who are residing in the nearby places from water bodies, as the same would affect the other citizens to get sufficient water.
Thus, the infringement amounts to violation of constitutional rights ensured to all other citizens. It is the duty of the State to preserve the water bodies and prevent ecological imbalances.
Such being the constitutional perspectives and duty of the State, the State authorities are bound to act in respect of all such encroachments.
15. The State holds all the water bodies in public trust for the welfare of this generation and all the succeeding generations and, therefore, protecting water bodies must be given as much weightage, if not more as allowing house-sites ::: Downloaded on - 01/06/2022 20:06:06 :::CIS -9- or other buildings to come up on such tanks poramboke lands, and water charged lands.
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16. Encroachments are infringing the rights of all other citizen. The constitutional rights of all other citizen in respect of the public properties cannot be taken away by few individuals on account of their greediness. Encroachment of land occurs on account of greediness. Courts can never encourage the actions of such greedy men in respect of their encroachment of the public land, water bodies and water resources. It is a growing trend across the Sate that few greedy men, land grabbers and land mafias are encroaching the public property, water bodies and water resources and obstructing the development of our great Nation. On account of large scale encroachments, the developmental activities of the Sate is being paralyzed. "State" is bound to act vigilantly and no leniency can be shown in respect of the encroachers.
17. There cannot be any leniency or misplaced sympathy in respect of the encroachers. Any lapse in this regard on the part of the authorities are also must be viewed seriously. The authorities committing lapses, negligence or dereliction of duty by way of any omission or commission, must be taken note of and suitable prosecution and appropriate disciplinary actions are also to be initiated against all such officials, who all are responsible for committing an act of negligence or dereliction of duty.
18. We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a ::: Downloaded on - 01/06/2022 20:06:06 :::CIS -10- trustee on behalf of the people and especially the furture generations. These constitute common properties and people .
are entitled to uninterrupted use thereof. The State cannot tranfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystem.
19. In the given circumstances, the Municipal Corporation is directed to identify all such water resources and ensure that the same are not illegally tapped/utilised by any individual(s). The Municipal Corporation shall further submit that a detailed road map as to how it proposes to utilize these natural resources, especially, when by utilising the amount that has been received under Smart City Project.
20. It has been noticed that of late the whole of the Shimla town is stinking and the major cause for such stink is dirty and unhygienic toilets as also the sewerage and sullage that is being discharged by the trucks carrying municipal waste. The Corporation is directed to take immediate remedial measures.
21. It is also noticed that pets owner get their pets on the Mall, Ridge and other public places to defecate. This is in violation of the provisions of the H. P. Municipal Corporation Act, 1994 and Bye Laws framed thereunder.
::: Downloaded on - 01/06/2022 20:06:06 :::CIS -11-22. The respondent-Corporation is directed to constitute a squad to ensure the enforcement of Section 304 of the H.P. .
Municipal Corporation Act, 1994 and such squad shall conduct inspection between 6 to 9 AM and ensure that the pets of the towns are not permitted to defecate in the public places by their owners/attendants.
23 For compliance to come up on 22.06.2022, when fresh status report be filed by respondents No. 4 and 5.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge May 31, 2022 (sanjeev) ::: Downloaded on - 01/06/2022 20:06:06 :::CIS