Rajasthan High Court - Jodhpur
Ajit Singh Shekhawat And Ors vs State Of Raj. And Ors on 5 December, 2018
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ No. 5889/2010
1. Sh. Ajit Singh Shekhawat S/o Sh. P.S.Shekhawat, aged 41
years.
2. Sh. Himanshu S/o Sh. K.L.Khatri
3. Sh. J.V.Rodrigucs S/o Sh. R.S.Rodrigucs
4. Sh. Narendra Kumar Khatri S/o Sh. K.L.Khatri
5. Sh. Dharmendra Khatri S/o Sh. K.L.Khatri
6. Sh. Sunil Singh S/o Sh. D.V.Singh
7. Sh. Kamlesh Joshi S/o Sh. K.L.Joshi
8. Sh. Gopal Singh S/o Sh. K.S. Rathore
9. Sh. Amti Dave S/o Sh. U.K.Dave
10. Sh. Navratan Sharma S/o Sh. R.P.Sharma
11. Sh. Kuldeep Singh S/o Sh. Man Singh
12. Sh. Narendra Nath S/o Sh. Johwar Nath
13. Sh. J.N.Mishra S/o Sh. K.K.Mishra
14. Sh. Kamal Singh S/o Sh. Mawant Singh
15. Sh. Avinash Sharma S/o Sh. Satish Sharma
16. Sh. V.P.Singh S/o Sh. P.P.Singh
17. Sh. Narendra Choudhary S/o Sh. N.R.Choudhary
18. Sh. Ravi Aashiya S/o Sh. M.D.Aashiya
19. Sh. Om Prakash Purohit S/o SH. S.R.Purohit
20. Sh. Jitendra Jangid S/o R.C.Jangid
21. Sh. H.C.Gupta S/o Sh. D.L.Gupta
22. Sh. V.P.Arora S/o Sh. M.L.Arora
23. Smt.Neeru Anand W/o Sh. Mukesh Anand
24. Sh. Virendra Singh S/o Sh. Jaskaran
25. Sh. Gena Ram S/o Sh. Ramji Ram
26. Sh. Bhakar Ram S/o Sh. Roopa Ram
27. Smt. Shanti Mangliya W/o Sh. Shankar Singh
28. Sh. Ashok Dadhich S/o Sh. Govind Ram
29. Sh. Samir Anand S/o Sh. Rajesh Anand
30. Sh. Prakash Dan S/o Sh. Laxmi Dan
31. Sh. Bhawani Singh S/o Sh. Mohan Singh
32. Sh. Hansraj Sukhariya S/o Sh. P.R.Sukhariya
33. Sh. Omprash Sukhariya S/o Sh. P.R.Sukhariya
34. Smt. Kirti Khandelwal D/o P.N.Khandelwal
35. Sh. Narendra Parihar S/o Sh. Jai Kumar
36. Sh. Anand Bansal S/o Sh. Tarachand
37. Sh. Jawari Lal S/o Sh. Mangilal
38. Sh. Sangram Singh S/o Sh. Anand Singh
39. Sh. Mohanlal Choudhary S/o Sh. D.R.Choudhary
40. Sh. Devendra Solanki S/o Sh. K.R.Solanki
41. Sh. Hardayal Singh S/o Sh. Bajrang Lal
42. Sh. Hariom Mittal S/o Sh. Chunni Lal
43. Sh. Dilip Singh S/o Sh. N.S.Nathawat
44. Sh. Shivnandan Singh S/o Sh. P.S.Jodha
45. Sh. M.P.Singh S/o Sh. Fateh Singh
46. Sh. Brijesh Mishra S/o Sh. P.R.Sharma
47. Sh. Ashok Jangid S/o Sh. R.L.Jangid
48. Sh. Bhupendra S/o Sh. M.L.Shan
49. Sh. Gajedan Charan S/o Sh. L.D.Charan
(2 of 8) [CW-5889/2010]
50. Sh. Pradeep Singh S/o Sh. Pabudan Singh
51. Sh. Rameshdan Charan S/o Sh. Rajdan
All R/o Ashapurna Valley, Near Jhalamand, Jodhpur (Raj.)
----Petitioners
Versus
1. State of Rajasthan through the Secretary Local Self Govt.
Department, Jaipur.
2. The Jodhpur Development Authority, through its
Commissioner, Jodhpur (Raj.)
3. The Chief Engineer, Physical Health Engineering
Department (PHED), Jodhpur.
4. The Ashapurna Buildcom Ltd., through its CMD, Mahaveer
Palace, Opp. Circuit House Jodhpur (Raj.)
----Respondents
For Petitioner(s) : Mr. K.K. Shah
For Respondent(s) : Mr. P.R. Singh-AAG,
Mr. Kuldeep Mathur,
Mr. Manoj Bhandari
HON'BLE MR. JUSTICE INDERJEET SINGH
Order 05/12/2018 This writ petition has been filed by the petitioners with the following prayer:-
"It is, therefore, most respectfully prayed that this writ petition may kindly be allowed with costs and by issuance of an appropriate writ, order or directions, the respondents may kindly be directed to provide drinking water facility to the residents of Ashapurna Valley."
This writ petition is pending since 2010 and from time to time, this Court issued direction to the respondents for providing drinking water facilities.
This Court on 01.07.2015 passed the following order:
(3 of 8) [CW-5889/2010] "This writ petition was filed on 5.7.2010 by the residents of Ashapurna Valley, near Jhalamand, Jodhpur ('town-ship') seeking direction to the respondents to provide drinking water facility to them.
Since 2010, innumerable orders have been passed by this Court based on the submission made on behalf of the Public Health and Engineering Department ('PHED'), the Jodhpur Development Authority ('JDA') and the Developer.
From the proceedings over a period of five years, it emerges that there is no dispute about the duty of the PHED/JDA to provide drinking water facility to the residents of the town-ship; while the stand of the JDA has been that it has paid a particular sum at one point of time to PHED which resulted in laying down of pipe-line, by which water could be supplied to the residents of the town-ship; however, the said pipe line is now un-serviceable; the PHED is seeking payment to the tune of Rs. 160.42 lacs from JDA for the purpose of laying down new pipe-line, which is being categorically denied by the JDA. There is also no dispute regarding the fact that the Developer has paid about a sum of Rs. 1,37,29,000/- towards development charges and Rs. 1,38,82,000/- towards conversion charges, from which the JDA claims to have spent a sum of Rs. 36 lacs having paid the same to the Jodhpur Vidhyut Vitran Nigam Limited for providing electricity to the town-ship.
On the request made by the learned Additional Advocate General for completing the instructions in the matter, time was granted.
On the communication sent by the learned Additional Advocate General to the Secretary, Urban Development Department and the Public Health and Engineering Department, a communication dated 26.05.2015 has been sent by the Deputy Secretary, issuing instructions to the JDA to provide drinking water facility to the town-ship and to give out the factual report to the Department. On 30.06.2015, the JDA has informed the Urban Development Department reiterating its stand which has been noticed here-in-before regarding laying down of pipe-line in the past, the same having been rendered unserviceable and the JDA now being not liable for providing water/make payment to the PHED.
Besides the above, learned counsel for the petitioners has also pointed out that a stand has been taken by the JDA that the PHED (4 of 8) [CW-5889/2010] has sanctioned a water supply project (Reorganisation) for Jodhpur city under AFD assistance with new Water Treatment Plants, Transmission mains along bye pass towards Shatabdi circle and the AFD (Agence Francaise De Development) assistance would be about Rs. 740.50 crores, whereby, it will be able to provide the water supply.
From what has been notices here-in- before, it is apparent that the present dispute essentially is between the PHED and the Urban Development Department/JDA as to who has to finance the laying down of the pipe-line for providing drinking water facility to the residents of the town ship. There is apparently no dispute that the responsibility lies with either of the Department to do the needful. However, for the last five years, the matter is hanging fire and both the Departments are seeking to either shift the burden or to avoid its responsibility from doing the needful and it is the residents/petitioners of the town-ship who are suffering on account of such indecision on part of the two department of the Government.
In the facts and circumstances of the case, it is directed that a meeting be held under the Chairmanship of the Chief Secretary of the Government of Rajasthan which would be attended by the Principal Secretary, Public Health and Engineering Department, the Additional Chief Secretary of the Urban Development Department, the Commissioner, Jodhpur Development Authority along with the other officers of both the PHED and the Urban Development Department within a period of three weeks from today.
It would be required that the said meeting would determine the modalities and the time frame by which the drinking water facility shall be made available to the residents of the Ashapurna Valley and that again the matter shall not be left to be decided by the Departments and a specific and categorical decision shall be taken and directions in this regard shall be issued. The date of meeting may be fixed by the Chief Secretary as per his availability and convenience.
List the matter on 29th July, 2015.
On that date, the report/outcome of the meeting as directed here-in-before shall be placed before this Court."
(5 of 8) [CW-5889/2010]
When the respondents failed to provide the water
connections in the houses of the petitioners, then again on 14.12.2016, this Court passed the following order:
"On 28.11.2016, the following order was passed:-
"In pursuance to the Order dated 24.11.2016, Mr. Karan Singh, the Managing Director of the respondent No. 4 is present in the Court.
Mr. M.S. Singhvi, learned Senior Counsel appearing on behalf of the respondent No. 4 states that the needful shall be done within seven days from the day, the respondent No. 3
- P.H.E.D. release the water. 2 Mr. P.R. Singh, learned Additional Advocate General states that the same shall be released on 30.11.2016.
It is further directed that the respondent No. 3- P.H.E.D. and the respondent No. 4 shall coordinate between each other for release of the water as well as stopping of the said water as required, for the purpose of the repair/replace of pipes and joints as the need be, so that there is regular water supply available to the valley without any hindrance.
Put up on 14.12.2016.
Meanwhile, the presence of the respondent No. 4 is exempted."
Today, a report in compliance of the order has been placed on record and the compliance report has also been placed on record by respondent No.4.
As argued by the learned counsel for the respondent PHED and as per para 9 and 10 of this report, the working pressure for water supply PVC pipeline is 6 kg. Per square centimeter whereas the pressure could not be more than 1kg per square centimeter in first 08 days and when the pressure was slightly raised by 1.5 kg. Per square centimeter, another leakage in the said pipeline was found.
On the other hand, Mr. M.S. Singhvi, learned Senior Counsel appearing for respondent No.4 submits that the same is on account of the fact that PHED has not released individual connections. In case, the individual connections are released, the pressure would be distributed and there would be no leakage. Further, in case there is leakage, respondent No.4 undertakes to repair the same immediately.
(6 of 8) [CW-5889/2010] It is evident that the problem has not been solved till date. On an earlier date i.e. on 17.10.2016, this Court had asked the Chief Secretary to intervene and ensure that the needful is done and each of the members of the colony are able to get the water supply. This Court is once again forced to ask the Chief Secretary to intervene so that the water supply be made available to each of the members through individual connection by the next date of hearing. All the formalities for grant of individual connection shall be completed by the respondent No.3. Thereafter, the water supply shall be released under the supervision of an officer not less than the rank of Chief Engineer of his choice along with two other officers of the rank of Superintending Engineer and Executive Engineer. The team will be accompanied by one representative of the respondent No.4.
It goes without saying that in case it is found that fault is on account of the quality/size/defect/design of the pipes in question, the respondent No.4 shall be responsible for laying the same in order to ensure smooth and uninterrupted supply of water to each of the members. The report of the team be placed on record. Put up on 16.01.2017 as prayed. The respondent No.4 as well as the Executive Engineer will also be present on the said date."
Counsel for the petitioners submitted that despite clear directions issued by this Court vide orders dated 01.07.2015 and 14.12.2016, the respondent Nos. 1 to 3 deliberately not providing the drinking water facilities to the petitioners. Counsel further submits that it is the duty of the State Government to provide drinking water as the drinking water is the fundamental right of the petitioner and prayed that writ petition filed against them be allowed.
Further, to support his contention, counsel placed reliance upon the judgment rendered in the case of Narmada Bachao Andolan Vs. Union of India and Ors. reported in (2000) 10 Supreme Court Cases 664, wherein it has been held as under:
(7 of 8) [CW-5889/2010] "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."
249. Water is being made available by the State of Rajasthan through tankers to the civilians of these areas once in four days during summer season in quantity, which is just sufficient for their survival. The districts of Barmer and Jalore are part of Thar Desert and on account of scarcity of water the desert area is increasing every year. It is a matter of great concern that even after half a century of freedom, water is not available to all citizens even for their basic drinking necessity violating the human right resolution of U.N.O. and Article 21 of the Constitution of India. Water in the rivers of India has great potentiality to change the miserable condition of the arid, drought- prone and border areas of India."
Counsel appearing on behalf of respondent Nos. 1 to 3 submits that the respondent No.4 has not laid down the pipe-line, therefore, they are unable to start the supply of water in the said colony. Counsel for the respondent No.4 submits that the respondent No.4 has laid down the pipe-line in the said colony as per the norms.
Heard counsel for the parties and perused the record.
Unfortunately, the matter is pending before this Court since the year, 2010 and the petitioners have constructed their houses and residing there since 2008 onwards and admittedly, they are taking water for drinking and other purposes by purchasing through tanker.
(8 of 8) [CW-5889/2010] In the facts and circumstances of the present case, while exercising the extra ordinary jurisdiction of this Court under Article 226 of Constitution of India and also considering the observations made by the Hon'ble Supreme Court in the matter of Narmada Bachao Andolan (supra), I am disposing of this writ petition with the following directions:
(a) The respondent Nos. 1, 2 and 3 are directed to install the individual water connection in each house on an application being submitted by the petitioners as well as by the residents of the colony - Ashapurana Vally, Shatabdi Circle, near New High Court Building, Jhalamand, Jodhpur on depositing the required charges by the petitioners within two months from today.
(b) The respondent Nos. 1, 2 and 3 are at liberty to take action against the respondent No.4 i.e. the developer in accordance with law if he has not developed the colony as per the norms fixed by the State Government.
The present writ petition as well as all the applications stand disposed of.
(INDERJEET SINGH),J 161-Arvind/-
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