Himachal Pradesh High Court
Devinder Singh Kalta vs . State Of H.P. & Ors On 17 Th H on 25 May, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
CWPIL No. 79 of 2018 25.05.2018 Present: Mr. Anshul Attri, Advocate, as Amicus Curiae.
Mr. J.K. Verma, Additional Advocate General for .
respondent-State.
Mr. Rajesh Sharma, Assistant Solicitor General of India, for Union of India.
Mr. Amit Singh Chandel, Advocate, for respondent No. 8-HIMUDA.
On 08.05.2018, we had passed the following order: r "We have interacted with Mr. Anil Kumar Bahri, Engineer-in-Chief (IPH), who is present in Court and informed that within the State of Himachal Pradesh there are 53604 habitations. This is other than Shimla township. In 34000 habitations, there is provision for supplying 70 litres per capita per day of water whereas with respect to 19500 habitations even though water connection is there but the supply of water on the basis of litres per capita per day is on the lower side. Perhaps, such habitations are getting water ranging from 25 to 55 litres per capita per day.
It appears that with respect to 104 habitations, perhaps there is no provision for supply of potable drinking water.
We are further informed that total annual budget of Irrigation and Public Health Department is Rs. 200/-crores, which is not sufficient to match up the need of augmenting the existing schemes or implementing the new ones.
To match up 19500 habitations up to 70 litres per capita per day, there is a proposal to make ::: Downloaded on - 26/05/2018 23:03:09 :::HCHP investment of Rs. 3270/- crores, out of which DPR of the works amounting to Rs. 650/- crores already stands prepared which are pending consideration with the concerned consultant, so appointed by the funding .
agency.
As such, we direct the Engineer-in-Chief (IPH) to prepare and furnish, by way of an affidavit, status of all the projects/Schemes, District-wise, which are in place in the State of Himachal Pradesh and which need to be augmented. Also, the new scheme required to be implemented.
Additionally, details of proposals which are pending consideration with the funding agencies shall be disclosed and files made available to the Court on the next date of hearing.
List alongwith CWP No.797 of 2018, titled as Devinder Singh Kalta vs. State of H.P. & Ors on 17 th h May, 2018, when the Engineer-in-Chief (IPH) shall personally remain present in Court."
2. From the documents annexed with the affidavit dated 16.05.2018 filed by the Engineer-in-Chief, Irrigation and Public Health Department, U.S. Club, Shimla-1, it is evidently clear that at least with respect to three Districts i.e., Hamirpur, Kangra and Mandi, the situation with regard to supply of potable drinking water to the habitations is highly inadequate.
Not even 50% of such habitations are fully covered as per the norms of the State. The position with regard to other Districts is ::: Downloaded on - 26/05/2018 23:03:09 :::HCHP also not very happy and the position is best highlighted in the following chart, which is part of the affidavit:-
Distt. Wise Status Of Rural Habitation With Respect To Drinking .
Water Supply
Sr. District Total no. of No. of fully No. of
habitations covered partially
No. Habitations covered
habitations
Total Total Total
1. Bilaspur 2432 1646 786
2. Chamba 7861 5394 2467
3. Hamirpur 2675 1658 1017
4. Kangra 7373 4288 3085
5. Kinnaur
r 391 353 38
6. Kullu 3936 3248 688
7. L & Spiti 346 294 52
8. Mandi 10360 6036 4324
9. Shimla 7890 3981 3909
10. Sirmaur 4326 2439 1887
11. Solan 3734 2997 737
12.
Una 2280 2048 232
Total 53604 34382 19222
3. "रहहमन पपनन रपहखयय , हबन पपनन सब ससन।
पपनन गयय न ऊबरय , ममतन, मपनन ष, चसन॥ "
Rahiman says water is most important, as without water, there is no wealth (no pearls) life or earth.::: Downloaded on - 26/05/2018 23:03:09 :::HCHP
4. State of Himachal Pradesh is blessed with many perennial rivers like Satluj, Bias, Ravi, Chinav, Pabar, Chander .
and Bhaga etc. 90% of the State population lives in rural areas.
Its population is approximately 70 lacs. Even after more than 70 years of independence not even 50% of 53,604 habitations so identified by the Irrigation and Public Health Department stand there is paucity r of to provided adequate potable water. It cannot be said that per se water in the State. However, perhaps,paucity of will, to provide adequate potable water to the residents of the State, is there as far as administration is concerned. Otherwise, in our considered view, there can be no cogent justification as to why till date 50% of the habitations in the State of Himachal Pradesh are not fully covered for the purposes of providing adequate potable water to the residents.
5. In A.P. Pollution Control Board II Vs. Prof. M. V. Nayudu (Retd.) and others, (2001) 2 Supreme Court Cases 62, Hon'ble Supreme Court has held as under:
(Two Judges)
"3. Drinking water is of primary importance in any country. In fact, India is a "party to the Resolution of the UNO passed during the United Nations Water Conference in 1977 as under:
::: Downloaded on - 26/05/2018 23:03:09 :::HCHP"All people, whatever their stage of .
development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs."
Thus, the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens.
4. Adverting to the above right declared in the aforesaid Resolution, in Narmada Bachao Andolan Vs. Union of India ( 2000(7) Scale 34 ( at p.124), Kirpal J observed:
"Water is the basic need for the survival of human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India....."
5. There is therefore need to take into account the right to a healthy environment along with the right to sustainable development and balance them. Competing human rights to healthy environment and sustainable development:
6. There is building up, in various countries, a concept that right to healthy environment and to sustainable development are fundamental human rights implicit in the right to 'life'.
::: Downloaded on - 26/05/2018 23:03:09 :::HCHP7. Our Supreme Court was one of the first Courts to develop the concept of right to 'healthy environment' as part of the right to "life" under Article 21 of our Constitution. [ See .
Bandhua Mukti Morcha Vs. Union of India ( 1984(3) SCC 161)]. This principle has now been adopted in various countries today."
6. In Delhi Water Supply & Sewage Disposal Undertaking and another Vs. State of Haryana and others, (1996) 2 Supreme Court Cases 572, Hon'ble Supreme Court has held as under:
(Two Judges) "Water is a gift of nature. Human hand cannot be permitted to convert this bounty into a curse, an oppression. The primary use to which the water is put being drinking, it would be mocking the nature to force the people who live on the bank of a river to remain thirsty, whereas others incidentally placed in an advantageous position are allowed to use the water for nondrinking purposes. A river has to flow through some territory; and it would be travesty of justice if the upperriparian States were to use its water for purposes like irrigation, denying the lower riparian States the benefit of using the water even for quenching the thirst of its residents."::: Downloaded on - 26/05/2018 23:03:09 :::HCHP
7. In Narmada Bachao Andolan Vs. Union of India and others, (2000) 10 Supreme Court Cases 664, Hon'ble Supreme Court has held as under:
.
(Three Judges) "247. As per Clause 3 of the final decision of the Tribunal published in the Gazette notification of India dated 12th December, 1979, the State of Rajasthan has been allocated 0.5 MAF of Narmada water in national interest from Sardar Sarovar Dam. This was allocated to the State of Rajasthan to utilise the same for irrigation and drinking purposes in the arid and droughtprone areas of Jalore and Barmer districts of Rajasthan situated on the international border with Pakistan, which have no other available source of water.
248. Water is the basic need for the survival of human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India and can be served only by providing source of water where there is none. The Resolution of the U.N.O. in 1977 to which India is a signatory, during the United Nations Water Conference resolved unanimously inter alia as under:
"All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs."::: Downloaded on - 26/05/2018 23:03:09 :::HCHP
8. In Susetha Vs. State of T.N. and others, (2006) 6 .
Supreme Court Cases 543, Hon'ble Supreme Court has held as under:
(Two Judges) "17. We may, however, notice that whereas 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 same principle, in our opinion, cannot be applied in relation to artificial tanks.
18. In L. Krishnan (supra), the Division Bench of the Madras High Court had been dealing with natural resources providing for water storage facility and in that view of the matter the State was directed to take all possible steps both preventive as also removal of unlawful encroachments so as to maintain the ecological balance.
19. The matter has also been considered at some details by this Court in Intellectuals Forum, Tirupathi (supra), wherein again while dealing with natural resources, it was opined:
"This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust, Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the state holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of ::: Downloaded on - 26/05/2018 23:03:09 :::HCHP the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction .
between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources...."
[Emphasis supplied]
9. We wish to remind the respondentsauthorities that right to have clean drinking water is fundamental right of the citizens of the country, as has been held by Hon'ble Apex Court in its various judgments and as such, respondent being a welfare State is always under obligation to provide safe and healthy drinking water to its residents. Otherwise also, Article 47 of the Constitution of India casts duty upon the State to raise the level of nutrition and the standard of living and to improve public health. Article 47 reads as under:
"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring ::: Downloaded on - 26/05/2018 23:03:09 :::HCHP about prohibition of the consumption except for .
medicinal purposes of intoxicating drinks and of drugs which are injurious to health."
10. Apart from above, Article 51 of the Constitution of India further casts duty upon the State to make an endeavour to foster respect for international law and treaty obligations in the dealings of organized people with one another. Though this Court shall be dealing with the aforesaid aspect of the matter in some other appropriate case, but, at this stage, it may be observed that water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. Moreover, it is pre requisite for the realization of other human rights. The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of waterrelated disease and to provide for consumption, cooking, personal and domestic hygienic requirements.
11. By now, the right to water has been recognized in a wide range of international documents, including ::: Downloaded on - 26/05/2018 23:03:09 :::HCHP treaties, declarations and other standards. At this stage, it would be appropriate to take note of Article 14, paragraph 2, of the Convention on the Elimination of All Forms of .
Discrimination Against Women, which provides that States shall ensure to women the right to "enjoy adequate living conditions, particularly in relation to water supply".
Similarly, Article 24, paragraph 2, of the Convention on the Rights of the Child requires State to combat disease and
12.
r to malnutrition "through the provision of adequate nutritious foods and clean drinking water".
Hon'ble Apex Court in case titled: State of Karnataka vs. State of A.P. and Others, (2000)9 SCC 572, while dealing with the controversy amongst States of Maharashtra, Karnataka and Andhra Pradesh with regard to utilization of Krishna River, which is the second largest river in the Peninsular India, made following observations, which may be relevant for reminding functionaries of the State of their duty casts upon them by Constitution of India:
"178. Despite independence for more than half a century, the country has not been in a position to construct more than 3000 large and small dams with the result that most of the water otherwise available in the country remains unutilised. Almost in all countries of the ::: Downloaded on - 26/05/2018 23:03:09 :::HCHP world, efforts are being made to regulate the user of water resources alongwith the user of .
the land resources. Water management is required to be viewed in the light of the land management. The law relating to water rights has undergone a sea change all over the world. International and interState disputes regarding the user of water are sought to be settled by recourse to the process of law in place of the old doctrine or settlement "by war or diplomacy".
Water under all prevalent systems of law has been declared to be the property of the public and dedicated to their use, subject to appropriation and limitations as may be prescribed either under law or by settlement or by adjudication. The disputes relating to water management, its development and its distribution are to be considered not from rigid technical or legal angle but from the pre eminently important humanitarian point of view as water wealth admittedly forms a focal point and basis for the biological essence and assistance of socio economic progress and well being of human folk of all the countries. In resolution of the disputes relating to development, management and distribution of the water reliance has to be placed upon the long usage, customs, prevalent practices, rules, regulation Acts and judicial decisions. There is no dispute that under the constitutional scheme ::: Downloaded on - 26/05/2018 23:03:09 :::HCHP in our country right to water is a right to life and thus a fundamental right. In India the importance of water is recognised under the .
constitution as is evident from Article 262, 7th Schedule List II Entry 17, List I, Entry 56, and Statutes like InterState Water Disputes Act, 1956 and Rivers Boards Act, 1956."
13. At this stage, we may also refer to the latest affidavit filed by Engineer-in-Chief, Irrigation and Public Health Department, U.S. Club, Shimla-1 dated 21.5.2018 which gives a vivid picture with regard to the entire water supply schemes which are presently operational, defunct, under augmentation and/or proposed within the State of Himachal Pradesh. We place on record our appreciation for the efforts put in by Mr. J.K. Verma, learned Additional Advocate General in helping us to formulate the picture which is best depicted by way of following chart: -
Sr. No. of schemes Prescribed norms FC=>55 l PC <55 l ped Total No. of No. GoI HP State ped Habitations.
1. 9516
2. 55Ltr/ 70 Ltr/ 34383 Nos. 19222 Nos. 53604 Capita/ Capita/ day day (LPCD) (LPCD) ::: Downloaded on - 26/05/2018 23:03:09 :::HCHP .
Sr. Head of Scheme No. of Water Estimate Expenditure Funds Funds Net Agency for funding No. Supply d Cost Rs. In Crore required for allocated for funds Schemes Rs. In completion the year required Crore (in crore) 201819 (in (in crore) crore)
3. On going water 712 818.91 461.01 357.90 80.90 277.00 Ministry of drinking water supply schemes with and sanitation GoI New funding from NRDWP Delhi in H.P., including which require augmentation
4. On going water 268 951.94 434.24 517.70 119.00 398.70 NABARD Loan supply schemes with funding from NABARD in HP including schemes which require augmentation
5. DPR for 1421 798.19 Proposal for external Remodelling/Renovat funding stands submitted ion of old RWSS in to the Ministry of drinking H.P. water and sanitation GoI r New Delhi on 11.05.2016 and presentation by the State has also been made before the Ministry on 18.5.2018.
6. DPR for WSS for 3267 Matter is pending covering all PCs approval since November habitations in H.P. 2016 with New Development bank, Sanghai.
7. DPR/Project under 4) 26 Nos. 298.25 NABARD Loan process with with NABARD Plannning
5) 87 Nos.
with NABARD
6) 10 Nos.
with I&PH Deptt.
14. On the request of learned Amicus Curiae, we adjourn the matter by two weeks, within which time, learned Amicus Curiae shall file his response to the affidavit filed by the Engineer-in-Chief (I & PH) dated 21st May, 2018.
15. We also direct learned Assistant Solicitor General of India to file an affidavit with regard to as to what is the status of Schemes which are presently pending with the Union ::: Downloaded on - 26/05/2018 23:03:09 :::HCHP Government. He shall also apprise this Court with regard to the Schemes which are presently pending with NABARD.
16. In the meanwhile, Union of India will also ensure .
that steps are taken to make available the funds which are presently required for the augmentation of the water schemes , proposals regarding which already stand sent by the State of Himachal Pradesh to the Union of India.
r to
List on 12th June, 2018.
(Sanjay Karol)
Acting Chief Justice
(Ajay Mohan Goel)
Judge
May 25, 2018
(bhupender/guleria)
::: Downloaded on - 26/05/2018 23:03:09 :::HCHP