Court on its own motion vs State of Himachal Pradesh

Tarlok Singh Chauhan, J.—Notice. Mr. J.S. Guleria, learned Assistant Advocate General appears and waives service of notice on behalf of respondent No. 1 and Mr. Hamender Chandel, Advocate, waives service of notice on behalf of respondent No. 2. Separate notice be issued to respondent No. 3, returnable on 29.6.2015.

"Rahiman Paani Rakhiye, Bin Paani Sab Soon, Paani Gaye naa Oobre, Moti, Manas, Choon....."

(Says Rahim, keep water, as without water, there is nothing. Without water, pearl, man and dough cannot exist).

The English poet Samuel Taylor Colerige in his poem ''The Ancient Mariner'' wrote "Water, water everywhere but not a drop to drink."

This is precisely the plight of the people of Shimla, which has been repeatedly highlighted in the various newspapers and dailies. Despite having received good amount of rain, large number of colonies and the people living there have hardly been getting even a drop of water for days on end, and even in places where water comes, it very often trickles for hardly 15 minutes or so in a day, and people have to rush with their buckets to the natural sources, which otherwise are badly contaminated. It is Indeed distressing that even after nearly 68 years of independence and after nearly 155 years of the establishment of the Municipal Corporation of Shimla, the people here are not in a position to get adequate water as per their needs.

Water is one of the primary needs of man, second only to air. Water is in fact the elixir of life. It is foremost duty of any Welfare State committed to the cause of the common man to provide water to the public.

Though, the Government would even till 8th June, 2015 hold out that "all is well", but the reality is otherwise as has been highlighted in the daily ''Amar Ujala'' in its edition dated 8.6.2015 wherein it has been reported that half the town is not getting any water.

At one stage, Municipal Corporation had itself proclaimed that after out sourcing the water supply, the same would be available 24 x 7, but why then cannot the Corporation itself supply the same 24 x 7. After all in case the services were to be out sourced, it was not that there would be an additional supply of water from any other sources, but the supply would have to be augmented from the existing sources. It is common knowledge that after water is tapped at source, only 50% of it actually reaches for distribution at Shimla town. At other places water supply system remains unattended and untapped and consequently the gallons of water, which is so basic and vital for human life, goes waste.

The people of Shimla are then forced to purchase water through water tankers, which essentially may not be clean and is the root cause of spreading diseases like jaundice, gastroenteritis and other epidemics. There is hardly any check on the quality of the water being supplied not only by these tankers but also the water otherwise being supplied by the Corporation.

Article 47 of the Constitution of India reads thus:

"Article 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 about prohibition of the consumption except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health."

Right to get water is a part of right to life guaranteed by Article 21 of the Constitution. While dealing with Article 21 of the Constitution, the Hon''ble Supreme Court in Chameli Singh and others etc. Vs. State of U.P. and another, AIR 1996 SC 1051 : (1995) 9 JT 380 : (1996) 1 SCALE 101 : (1996) 2 SCC 549 : (1995) 6 SCR 827 Supp has held that need for a decent and the civilized life includes the right to food, water and a decent environment. This is so observed by the Hon''ble Supreme Court in the following terms:

"In any organized society, right to live as a human being is not ensured by meeting only the animal needs of men. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhabit his growth. All human rights are designed to achieve this subject. Right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration on Human Rights and convention or under the Constitution of India cannot be exercised without these basic human rights."

In an earlier decision in Subhash Kumar Vs. State of Bihar and others, AIR 1991 SC 420 : (1991) 1 CompLJ 209 : (1991) 1 JT 77 : (1991) 1 SCALE 8 : (1991) 1 SCC 598 : (1991) 1 SCR 5 : (1991) 1 UJ 533 , the Hon''ble Supreme Court held that right to pollution free water is a part of the right to life guaranteed by Article 21 of the Constitution.

Similarly in Delhi Water Supply and Sewage Disposal Undertaking and another Vs. State of Haryana and others, (1996) 2 AD 306 : AIR 1996 SC 2992 : (1996) CriLJ 1887 : (1996) 6 JT 107 : (1996) 2 SCALE 75 : (1996) 2 SCC 572 : (1996) 3 SCR 13 , the Hon''ble Supreme Court observed:

"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 water is put being drinking, it would be mocking nature to force the people who live on the bank of a river to remain thirsty." The Hon''ble Supreme Court further observed that "drinking is the most beneficial use of water and this need is so paramount that it cannot be made, subservient to any other use of water, like irrigation. So the right to use of water for domestic purpose would prevail over other needs."

In M.C. Mehta Vs. Kamal Nath and Others, (1999) 4 CompLJ 44 : (1996) 11 JT 467 : (1997) 2 SCALE 7 : (1997) 1 SCALE 9 : (1996) 9 SCALE 141 : (1997) 1 SCC 388 : (1996) 10 SCR 12 Supp , the Hon''ble Supreme Court held as follows:

"25. 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 of life. The 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. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on government authority:

"Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses."

In Narmada Bachao Andolan Vs. Union of India and Others, AIR 2000 SC 3751 : (2000) 2 JT 6 Supp : (2000) 7 SCALE 34 : (2000) 10 SCC 664 : (2000) 4 SCR 94 Supp : (2000) AIRSCW 4809 : (2000) 7 Supreme 264 , the Hon''ble Supreme Court held as under:

"248. Water is the basic need for the survival of human beings and is part of the right to 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 UNO 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."

A learned Single Bench of this Court (Justice Deepak Gupta, J., as his Lordship then was) after taking into consideration the entire case law on the subject, has held that "water is meant to be used by the entire public and one person cannot exploit the water source for commercial purpose to the detriment of the members of the public, who have a right to use the same". (Refer: Digvijay Singh and Baldev Singh Vs. Bhagwan Singh and Others, (2007) 1 ShimLC 40 .

This Court can take judicial notice of the fact that because of the conditions prevailing elsewhere in the State as also in the Country, the tourists are making a bee line towards the queen of hills (as Shimla was called by the Britishers) to beat the heat, but now they have been made to think as the water shortage has left many ''high and dry'' literally.

The successive Governments and the Municipal Corporation have failed to mitigate the problem of water shortage which now is more or less a common feature around the year. Scant attention has been given to provide adequate potable water. Rationing is common and even then there is only erratic and limited supply of water.

The fault lies not only with the working of the local civic authorities i.e. Municipal Corporation but also lies in identifying the problem area which can be broadly classified as follows:

"(1) Leakages, (2) Distribution network, (3) Diminishing and depleting water sources."

Plugging of leakages can help to resolve and increase substantial quantity of water and at the same time also ensure its quality. There appears to be no check and balance on the distribution of water and it is no secret that the key to get the water lies in the hands of the key-man. Can the people of Shimla be held to ransom by withholding the basic necessity of life i.e. water, that too, at instance of a functionary of the Corporation? It is unfortunate that despite the existence of the Corporation for more than one and half century, it has taken no steps to ensure that there is a mechanized and an equitable distribution of water which could have been worked out on the basis of population residing in the given area or on any other reasonable basis.

In the very near future, water will be a scarce resource and therefore, needs to be harnessed in the most scientific and efficient manner. No doubt, there has been diminishing supply from the water resources that have been over exploit to meet the increasing demand of the tourism industry. It still needs to be emphasized here that the commercial interest i.e. interest of the hoteliers are subservient to the fundamental rights of the individuals who have a right to get water as a part of right to life as guaranteed by Article 21 of the Constitution.

Unfortunately the Corporation and I and PH Departments have taken no steps to tap the natural resources existing throughout the length and breadth of Shimla. The water from these sources even if left untreated can still be used for washing, toilets etc and would therefore; reduce the burden on the Municipal Corporation.

No endeavour has been made by the Government to explore additional water resources and the town that was originally planned by the Britishers for a population of 6000 (Six thousand) is expected to support more than 2,00,000 (two lac) people and in addition to this, 20,000 (twenty thousand) to 30,000 (thirty thousand) tourists on an average on every week end during peak tourist season from May to June end and December-January.

As against the normal demand of 42 millions liters per day, the availability is hardly 32 to 35 MLD. Is it not therefore a wake up call and is not time that the authorities are made to awaken from their deep slumber?

What is more shocking is that the Municipal Corporation is still dependent upon the supply of electricity by the HPSEBL for pumping of the water and has not cared to install generators. The HPSEBL on the other hand has not even cared to provide an alternate supply to the pumping station so that in failure or fault in one line would ensure that electricity can still be supplied from the other line.

Taking suo motu cognizance of the news item appearing in ''Amar Ujala'' dated 8.6.2015, this Court proceeds to pass the following directions:

(1) The respondent No. 1 is directed to file a status report alongwith complete data as to the actual amount of the water supplied by it in Shimla in the month of May, 2015. It shall also state the steps taken by it to identify additional water sources so as to mitigate the problem of water not only for the present but for the coming times. In addition, respondent No. 1 would also indicate as to whether there is any provision for having the water supplied by it tested in Shimla and how frequently such tests are being conducted.

(2) Respondent No. 2 shall file an affidavit indicating the actual amount of water received by it in the month of May, 2015, the actual distribution area-wise, duly supported with the relevant data vis-�-vis concentration of population in the areas. It shall also indicate in its affidavit as to how many generators have been installed at the pumping stations and what steps have been taken by it to provide alternate electricity supply to the pumping stations. Respondent No. 2 shall also indicate as to how it proposes to have an automatic water distribution system thereby excluding altogether the role of the key-men. In addition to the aforesaid, the respondent No. 2 shall also submit a status report regarding the water storage capacity of all the hotels alongwith the actual consumption of Municipal water for the month of May, 2015 and also as to whether these hotels have in addition to the water supplied by the Corporation, procured additional water through water tankers etc. and if so, the quantity thereof.

(3) Respondents No. 1 and 2 shall file separate affidavit(s) indicating as to how they propose to tap and utilize the natural resources of water that are available in and around Shimla and how many of these sources have illegally been tapped by individuals or authorities etc.

(4) Respondent No. 3 is directed to file an affidavit indicating therein as to what steps have been taken by it to provide alternate electricity connection to the pumping stations of respondent No. 2.

In addition to the aforesaid directions, it is imperative that certain mandatory directions be issued at this stage:

(a) Respondent No. 2 is directed to ensure that all leakages are removed positively within one week and in case any additional staff is required for the purpose, it shall be imperative upon the respondent No. 1 to provide the same.

(b) Respondent No. 2 is directed to ensure that there is equitable distribution of water.

List on 29.6.2015 by which date, the status report/compliance affidavit(s) be filed.