Himachal Pradesh High Court
Pawan Singh & Another vs State Of H.P. & Another on 12 July, 2022
Bench: Chief Justice, Ajay Mohan Goel
Pawan Singh & another versus State of H.P. & another
alongwith connected matter
CWP No. 3013 of 2021
a/w CWP No. 3947 of 2022
.
CWP No. 3013 of 2021
12.07.2022 Present: Mr. Jagat Pal, Advocate, for the petitioners.
Mr. Ashok Sharma, Advocate General, with Mr. Vikas
Rathore, Additional Advocate General, for respondent
Nos. 1 to 4.
Mr. Vir Bahadur Verma, Advocate, for respondent No.
5.
Mr. Vinod Chauhan, Advocate, for respondent No. 6.
Mr. Abhishek Thakur and Mr. Mohit Dogra,
Advocates, for respondent No. 7.
CWP No. 3947 of 2022
Mr. Sanjeev Bhushan, Senior Advocate, with Mr.
Rakesh Chauhan, Advocate, for the petitioner.
Mr. Ashok Sharma, Advocate General, with Mr. Vikas
Rathore, Additional Advocate General, for respondent
Nos. 1 to 3.
Mr. Vir Bahadur Verma, Advocate, for respondent No.
4.
Mr. Vinod Chauhan, Advocate, for respondent No. 5.
Mr. Abhishek Thakur and Mr. Mohit Dogra,
Advocates, for respondent No. 6.
The above petitions have been filed objecting to the
setting up of the proposed Sewerage Treatment Plant (STP) at
Village Jhabola, Tehsil Jhandutta in District Bilaspur, on land
admeasuring 0.5712 Hectare comprising of Khasra Nos. 966,
969, 970, 1064, 1065, 1066, 1067 and 1068 in Mouja Talai.
2. It is the case of the petitioners that the proposed
STP is to be constructed at a site in close proximity to the
source of drinking water i.e. percolation well of the Lift Water
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Supply Scheme (LWSS) of Village Jhabola, which has about
5,000 residents, whose lives and health would be at stake
because of the danger of the drinking water getting
contaminated. It is also contended that the proposed STP is
adjoining their agricultural lands and in Village Jhabola. It is
pointed out that Gram Panchayat, Jhabola has also opposed
the construction of the STP at the proposed site.
3. The learned Senior Counsel for the petitioners,
who are residents of Village Jhabola (in CWP No. 3947 of
2022), submitted that sometime in January/February, 2016,
Shimla had witnessed a major health disaster due to outbreak
of jaundice and there were about 1,000 cases of jaundice
reported and several people had died on account of seepage of
untreated sewage from STP at Malyana which contaminated
the drinking water supplied to residents at Shimla.
4. The learned Advocate General, on the other hand,
submitted that the proposed STP is to be constructed on
Government land and the land, in fact, belongs to respondent
No. 5-Nagar Panchayat Talai, Tehsil Jhandutta, District
Bilaspur. It is submitted that the proposed STP is to be
constructed with modern techniques and the sewage water
after its treatment would be released 700 meters downstream
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below the proposed site of STP, which is about 400 meters
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below the water source i.e. percolation well of the Lift Water
Supply Scheme (LWSS) Jhabola and there is no other water
source of drinking water below that point. It is further
submitted that the water source (i.e. percolation well) is
located approximately 302.1 meters downstream from the
proposed site of the STP and the outlet of the treated sewage
water is further 397.9 meters downstream which will be
released into the 'khad' and there would be no risk of
contamination of the water source.
5. The learned Advocate General submitted that the
necessary approval has been obtained from the Ministry of
Environment and Forests (MoEF), Government of India. He
submitted that 90% of the sewerage pipe network has been
laid and an amount of ₹ 3.66 crore has been expended and the
approach road to the proposed STP has been developed, for
which an amount of ₹ 10 lac has been spent. It is pointed out
that the STP is being constructed pursuant to the order
dated 28th August, 2020 passed by this Court in CWP No. 358
of 2018 and the construction of the STP has been directed
to be completed within a period of one year from the
date of the said order. It is, therefore, contended that the
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construction of the proposed STP, which is in public interest,
is required to be completed expeditiously.
6. On 7th September, 2021, this Court passed an
order in the present CWP No. 3013 of 2021, directing the
respondent-State Pollution Control Board to make physical
inspection of the site in question and submit its status report.
Pursuant to the said order, the respondent-State Pollution
Control Board has submitted its report dated 16 th September,
2021. In the said report, in paragraphs 3 to 7, it is stated as
follows:
"3. The construction work of STP has not commenced at
site till date.
4. During the inspection of the area, it was observed that
the Water Mill (as cited in the petition) is working on
water and the water for the mill is being derived from
Dugh Khad (rivulet/stream) which is a tributary of
Saryali Khad, through a dedicated Kuhal (small
canal).
5. The exiting water mill (Gharat) is adjoining/adjacent
to the boundary of the proposed site of STP i.e. -
approx 3-5 meters only as per the site of STP shown
by the representative of Jal Shakti Vibhag. It is
pertinent to mention here that the treatment tanks of
the STP when constructed would be about 10-20
meters away from the water mill.
6. Jal Shakti Vibhag is lifting the water from
the intake point i.e. percolation well which is located
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approximately 275 meters downstream from the
proposed site of STP as seen in the google earth
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photograph attached as Pic No. 02. The water from
the percolation well is lifted and stored in the water
storage tank of Jal Shakti Vibhag which is adjoining
to the proposed STP site.
7. The water lifting scheme of Jal Shakti Vibhag is
functional as reported by the Executive Engineer JSV
Jhandutta Division."
(emphasis supplied)
7.
r The learned Senior Counsel for the petitioner in
CWP No. 3947 of 2022, in the course of his arguments, has
placed on record a copy of the minutes of meeting held on 11 th
March, 2016 of all the Chief Engineers of I&PH Department
on the status of the STPs in the State pursuant to the
outbreak of jaundice in Shimla on account of the drinking
water being mixed with the sewage due to malfunction of the
STP at Malyana. In the said minutes of meeting, it is recorded
that there are 49 STPs in the State and as per zone-wise
distribution, number of STPs in Shimla Zone is 19, in Mandi
11, in Dharamshala 10 and in Hamirpur 9. It is further
stated in the said report that out of 49 STPs in the State, 4 are
in red category located within a distance of 1 km, 9 in orange
category located within a distance of 1-5 kms, 8 in yellow
category located within a distance of 5-10 kms, 13 in blue
category located within a distance of 10 kms, from the source
of Water Supply Schemes, and 15 are in green category in
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which no Water Supply Scheme is nearby. The said minutes
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of meeting further records - "the four STPs identified in
category-1 located at Rohru, Ghumarwin, Una and
Sundernagar were marked as most critical and are to be
considered sensitive keeping in view their very close proximity
with the source of existing water supply schemes and need to be
monitored/managed with utmost vigil."
8. It is thus seen that the State STPs have been
divided into five categories i.e. red, orange, yellow, blue and
green, in accordance with their distance from water sources of
the nearest Water Supply Schemes. In the present case, from
the report of the respondent-State Pollution Control Board
pursuant to the order passed by this Court, it is seen that the
percolation well is located approximately 275 meters
downstream from the proposed site of STP and the water from
the percolation well is lifted and stored in water tank of Jal
Shakti Vibhag, which is adjoining the proposed STP site.
9. It can hardly be disputed that majority of illnesses
in the country are water-borne and sanitation related diseases.
Improper sanitation and sewage disposal causes pollution of
water and contamination of drinking water supply resulting in
spread of diseases like jaundice, cholera, typhoid, etc. In
Subhash Kumar versus State of Bihar, (1991) 1 Supreme Court
Cases 598, the Supreme Court has held that pollution free
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water is a fundamental right. Right to life under Article 21 of
the Constitution of India, therefore, includes the right of
enjoyment of pollution free water.
10. In our view, the issue raised in these petitions
concerns the health and safety of the villagers of Village
Jhabola, which are about 5,000 in number and the petitions
cannot be treated as adversarial. The learned Senior Counsel
for the petitioner in CWP No. 3947 of 2022 fairly stated that
the petitioners are not opposing the construction of the STP
and their grievance is in respect of location of the proposed
STP.
11. Having heard the learned Senior Counsel for the
petitioner in CWP No. 3947 of 2022, the learned counsel for
the petitioners in CWP No. 3013 of 2021, the learned Advocate
General and the learned counsel for respondent-Pollution
Control Board, we fail to understand why the disputed site is
chosen for the location of the proposed STP which falls in close
proximity to the water source of the village i.e. percolation
well of the Lift Water Supply Scheme (LWSS) Jhabola when
there are other lands belonging to the State Government at
some distance away, as pointed out by the learned Senior
Counsel for the petitioners. Admittedly, the site proposed for
the construction of the STP is located in the red category i.e.
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within a distance of 1 km from the source of the Water Supply
Schemes. In the minutes of the meeting dated 11 th March,
2016, referred to above, four STPs which were in red category
i.e. within a distance of 1 km from the source of Water
Supply Schemes, were marked as most critical and were
considered to be sensitive in view of their close proximity with
the source of existing water supply schemes.
12. Though the dispute raised in the petitions is
essentially about the location of the site of the proposed STP,
except to say that the site in question was suitable, nothing is
placed on record to show as to what survey or exercise has
been carried before finalizing the site of the proposed STP.
Though it is pointed out that major portion of the sewerage
lines have been laid, the construction of the STP at the
proposed site is yet to begin.
13. In the facts and circumstances of the case, in our
view, since the proposed STP is admittedly within the red zone
which is considered as critical and sensitive, and the issue
raised in the petitions involves the health and safety of the
villagers of Village Jhabola, we would like an independent
report from an expert in order to be satisfied that the
proposed STP would not be a cause of risk to the safety and
health of the villagers of village Jhabola. Hence, we pass the
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following order:
ORDER
(i) We appoint National Environmental Engineering Research Institute (NEERI) to report on the safety of the proposed STP which rfalls in the red zone i.e. within 1 km of the water source i.e. percolation well of the Lift Water Supply Scheme (LWSS) Jhabola. Dr. Atul Vaidya, Director, NEERI, Nagpur, shall nominate two experts from NEERI, Delhi within three days from the receipt of copy of this order, who would form a Committee, and who would visit the site and make a report.
(ii) The report shall, in the first instance, state whether it would be safe to set up the STP at the proposed site and would not pose a threat to the health and safety of the villagers of Village Jhabola.
(iii) In the event the Committee comes to the conclusion that the STP can be set up at the proposed site, the safeguards which need to be taken so as to avoid any leakage from the ::: Downloaded on - 15/07/2022 20:02:06 :::CIS :-10-:
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proposed STP, which would contaminate the water source i.e. percolation well of the Lift Water Supply Scheme (LWSS) Jhabola. The Committee shall also examine whether the proposed STP meets the prescribed standards and r make recommendations to curb the possibility of contamination of drinking water with likely discharge of sewage.
(iv) The Secretary (I&PH) shall forward the detailed designs and plans and all other relevant documents of the construction of the proposed STP to NEERI, Delhi, within a period of ten days from today.
(v) The District Collector, Bilaspur, shall be the Nodal Officer to provide all necessary logistics and who shall coordinate with the Committee for the inspection of the site and adjoining lands.
(vi) The Committee shall submit its report to this Court within a period of six weeks from today.
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(viii) A copy of this order shall be forwarded by the Registrar (Judicial) of this Court to Dr. Atul Vaidya, Director, NEERI, Nagpur.
14. List both the petitions on 14th September, 2022, before this Bench (Coram : CJ and Justice Ajay Mohan Goel).
( A.A. Sayed ) Chief Justice ( Ajay Mohan Goel ) Judge July 12, 2022 ( rajni ) ::: Downloaded on - 15/07/2022 20:02:06 :::CIS