IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6143 of 2009 ***** Binod Kumar, son of Shri Brahamdeo Prasad, resident of village-Mangar Bigha, P.S.-Nawada Town, District-Nawada. …. …. Petitioner Versus 1. The Union of India through Secretary, Department of Rural Development, Government of India, New Delhi. 2. The Secretary, Personnel and Public Grievance and Pension, Government of India, New Delhi. 3. The Joint Secretary, Department of Drinking Water Supply, Ministry of Rural Development, Government of India, 9th Floor, Paryawaran Bhawan, C.G.O. Complex, Lodhi Road, New Delhi 100 003. 4. The State of Bihar, through the Chief Secretary, Government of Bihar, Patna. 5. The Principal Secretary, Public Health Engineering Department, Government of Bihar, Bishweshraiya Bhawan, Bailey Road, Patna. 6. The Principal Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna. 7. The Principal Secretary, Department of Cabinet (Vigilance), Government of Bihar, Patna. 8. The Deputy Secretary, Department of Public Health Engineering, Government of Bihar, Patna. 9. The Director, Project Monitoring Unit, Public Health Engineering Department, Government of Bihar, Bishweshraiya Bhawan, Bailey Road, Patna. 10. Mr. Shashi Shekhar Sharma, son of not known, the then Secretary (from April, 2006 to December, 2008), Department of Public Health Engineering, Government of Bihar, presently working as Secretary, Department of Rural Engineering, Government of Bihar, Patna. 11. Mr. Madan Kumar, son of not known, Engineer-in-chief-cum-Special Secretary, Department of Public Health Engineering, Government of Bihar, Patna (since 2005 till date). 12. M/s Envirotech East Private Limited Bengal, Ambuza Commercial Complex, U.N.F. 13, 1050/1, Survey Park, Kolkata, 700 075. 13. Central Bureau of Investigation through its Director, New Delhi. …. …. Respondents ----------- For the Petitioner : Mr. Anjani Kumar, Advocate For the Respondents 1 to 3 : Miss Kalpana, C.G.C. For the State : Mr. P.K.Shahi, Advocate General - 2 - Mr. Neeraj Nandan, G.P.-XVIII Mr. Vikas Kumar, Advocate For the Respondent No.7 : Mr. Prashant Pratap, Advocate For the Respondent No.11 : Mr. Y.V.Giri, Senior Advocate Mr. Sanjeev Kumar, Advocate For the Respondent No.12 : Mr. Raju Giri, Advocate For the Respondent No.13 : Mr. Bipin Kumar Sinha, Advocate For the Central Pollution : Mrs. Binita Singh, Advocate Control Board -------------- 14. 3.5.2010. Though in this public interest litigation allegations and counter allegations have been made specially with regard to malafide, vengeance and vendetta proclaimly exhibited by the petitioner at the instance of an ex-technocrat, an Executive Engineer, yet the issue that was raised got galvanized by various orders of this Court as this Court thought it appropriate to direct whether the measures were taken to draw groundwater samples and get it checked-up to find out the quality of water. Be it noted, initially, the 12th respondent collected samples from all over the State and submitted a report. The said report was assailed in this writ petition on the foundation that the same was not based on the samples that were collected but from certain other samples which were manipulated by the 12th respondent. 2. After the present writ petition was filed, this Court on 23.7.2009 had passed the following order: - - 3 - “After hearing the parties we feel that public interest shall be well served if the State of Bihar is directed to conduct a random check regarding correctness of the reports submitted by the agency by picking up minimum 10 samples from each of four districts i.e. Siwan, Samastipur, Nalanda and Madhubani. The random checking should be conducted by some expert agency to be selected by the Bihar State Water and Sanitation Mission. It goes without saying that the agency selected for random checking regarding correctness of the reports and particularly, to rule out the possibility of the allegation that reports have been prepared only on table without taking samples from the sites, will be other than respondent no.12. As prayed, let this matter be listed under the same heading after six weeks.” 3. Again on 4.11.2009, the following order came to be passed: “On behalf of the petitioner a submission has been advanced that the sample collections and readings based on those samples as prepared by Dr. Srivastava may be reliable but his opinion that the differences in the two reports are insignificant, appears doubtful. As prayed on behalf of the petitioner, this matter is adjourned for two months so that, if so advised, the petitioner may get the entire data - 4 - collected by Dr. Srivastava and collected earlier by M/s Envirotech, respondent no. 12, examined by any reputed expert of any government institute at Delhi or other place. The report should be produced before this court, if available, by the next date. Put up under the same heading after two months.” 4. After the said order was passed, the samples were sent to All India Institute of Hygiene and Public Health, Kolkata (for brevity „the Kolkata Institute‟) which submitted a report. Thereafter the petitioner submitted a chart comparing the report submitted by the Kolkata Institute and the report already submitted earlier by the respondent no. 12. Thereafter both the reports, namely, the report submitted by respondent no.12 and that of the Kolkata Institute along with the chart prepared by the petitioner were sent to the Central Pollution Control Board at New Delhi (for short „the Central Board‟). The Central Board has filed an affidavit sworn-in by the Director, Central Pollution Control Board at New Delhi. The paragraphs 3, 4, 5 and 6 of the said affidavit read as follows: - “3. That the samples collected by two agencies - 5 - M/s Envirotech East Pvt. Ltd. Kolkata and All India Institute of Hygiene and Public Health, Kolkata were collected at different timings with a gap of up to two years. The Groundwater system being dynamic, slow moving system and also change in water table during different seasons and timings could change the concentration of the parameters measured. Moreover, the variation in results has been found to be negative as well as positive for the same parameters which indicates that it is not because of a systematic error/change but it could be due to random errors or changes caused because of analytical errors and change in water table and shifting of these contaminants due to water movement. 4. That the difference of analytical results of samples collected from the same source at a particular time should generally not exceed 20 per cent if requisite quality control/quality assurance programme is implemented. 5. That the contamination of groundwater by rain water depends on the geological condition of the respective aquifer. It is observed that differences of two analytical results generated by two laboratories were significant particularly in some samples. Generation of unreliable result definitely is a cause of concern to policy makers particularly with reference to arsenic and - 6 - fluoride contamination. Huge number of people are already suffering from arsenic related diseases and succumbed to death. Fluoride is also severe threat if people are exposed to contaminated groundwater. Difference whether it is positive or negative again depends on how quality assurance programme is implemented by the agencies involved in the programme. It may be mentioned that quality of analytical results depends on various elements such as laboratory infrastructure, personnel, instrument/equipment, quality of chemicals, reference standards etc. The implementation of these elements must be done as per ISO-17025. If these are properly implemented, chances of such differences can be prevented. 6. That in view of the above for better comparison of results of the two laboratories it is suggested that joint monitoring may be conducted at the selected locations where the critical water quality parameters have been found to be exceeding the standards with wide margin.” 5. We have heard Mr. Anjani Kumar, learned counsel for the petitioner, Miss Kalpana, learned counsel for the - 7 - respondents 1 to 3, Mr. P.K.Shahi, learned Advocate General along with Mr. Neeraj Nandan, learned G.P.-XVIII for the State, Mr. Prashant Pratap, learned counsel for the respondent No.7, Mr. Y.V.Giri, learned senior counsel along with Mr. Sanjeev Kumar, learned counsel for the respondent no. 11, Mr. Raju Giri, learned counsel for the respondent no.12, Mr. Bipin Kumar Sinha, learned counsel for the respondent no.13 and Mrs. Binita Singh, learned counsel for the Central Pollution Control Board. 6. We may note with profit that the samples were collected in the year 2007 and a cavil was raised with regard to the test and the counter tests to verify the contamination level of the water. It is submitted by the learned Advocate General appearing for the State that if the affidavit of the Central Board is appositely appreciated it would reflect that the Central Board has not decried the report submitted by the Kolkata Institute or that of the 12th respondent, but has suggested that for a better comparison of the reports to go for a joint monitoring and the suggestion is futuristic. Mr. Anjani Kumar, learned counsel for the petitioner submitted that the Chief Engineer concerned, the 11th respondent, had siphoned - 8 - off the amount in collusion with the 12th respondent. Be it noted, a sum of Rs.5,80,50,000/- was paid to the 12th respondent by the respondent nos. 10 and 11 from the stage of collection of samples till the submission of report. The samples were collected from various places of the State and as set forth there are more than 2,25,000 samples. It is worth noting that 12th respondent, M/s Environtech East Private Limited Bengal was given the work order. 7. Mr. Giri, learned senior counsel appearing for the respondent no.11 would say the said agency was selected by the Expert Committee consisting of authorities of Central Groundwater Board, Bihar State Pollution Control Board and an Expert from UNICEF and, for that purpose, a national tender was floated. In this regard, we think it apt to reproduce paragraphs 5 and 6 from the counter affidavit of the respondent no. 11: “5. That on directives of Government of India to achieve a goal for access of safe drinking water to all, a comprehensive water testing programme was formulated for testing of 270318 water sources to cover at least one source of each Panchayat/village of all the districts of Bihar. The above said scheme was approved by State - 9 - Level Scheme Clearance Committee wherein the members of the committee included high level dignitaries of the State Government, member of Central Ground Water Board and representative of Department of Drinking Water Supply, Government of India. Accordingly this scheme was sanctioned for testing of water samples for 15 parameters @ Rs.288.00 per sample with a cost of Rs.7.7852 crores. Pursuant thereto, Department of Public Health Engineering, Government of Bihar, Patna issued National Tender Notice for water quality testing in laboratory, inclusive of sample collection of spot water sources. Accordingly, national tender was invited on 6th February, 2007 by the Department for ensuring the participation of experienced firm having relevant experiences and expertise in this field. Seven firms participated in the above said tender. In order to evaluate the offers received, an Expert Committee was formed by the department wherein, experts from Central Ground Water Board, Bihar State Pollution Control Board and experts from UNICEF were the members. This committee after evaluation of offers gave its recommendation to the department in which only four firms of national repute, stood qualified for opening of their rate bids. After opening of the rate bids, the rate of M/s Envirotech East Private Limited was found - 10 - to be lowest as it quoted @ Rs.258/- per sample. Besides this, the company was made ready for testing of Arsenic without charging any cost. Accordingly, M/s Envirotech East Private Limited being a lowest bidder (L1-Bidder), was awarded the contract. Accordingly M/s Envirotech East Private Limited, Bengal Ambuza Commercial Complex, UNF.13, 1050/1, Survey Park, Kolkata-75 has been assigned the work of water quality testing inclusive of sample collection for 15 parameters along with Arsenic in all 38 districts of Bihar. Hence proper transparency has been maintained right from the starting point. 6. That the time assigned for the work was six months. Latest techniques such as GPS readings of each sampling locations were made compulsory so that the location of each water source can be ascertained at any point of time. This latest state-of-art technology is so technically advance in the methodology that positioning of the location of the water sources can only be determined by direct linkages with the satellite and latitude and longitude of every habitation centre can be ascertained on a map with the aid of software only. Henceforth, leveling of any allegation that the respondent has not gone to the site of habitation centre to test of - 11 - the water sources is baseless, redundant and farce. It is impossible to have positioning of the location and ascertaining latitude and longitude of every habitation centre without actual visit to the site, without actual collection of the sample and without actual testing. All the samples collected from the field were given a code number to maintain the accuracy. The satellite maps, GPS reading, C.Ds., videographs and coordination with the field officers substantiates the successful accomplishment of the project. Test results were randomly checked by the State Level Laboratory at Patna. Standard testing protocol was followed in water quality testing by the department. The progress of the work was periodically reviewed in the State Level Review meeting. As per the implementation manual of National Rural Drinking Water Quality Monitoring and Surveillance Programme and guidelines of Government of India, the work was executed by Bihar State Water and Sanitation Mission. The execution of work has been monitored at different stages from district to State level. The report of the water quality consultants and the field officers indicate that the work of sampling have been done in their knowledge. That the water sample collection programme - 12 - was duly communicated to the Executive Engineers by M/s Envirotech East Private Limited and the Headquarter also communicated the work plan to Executive Engineers. The company‟s letter to the concerned Executive Engineers regarding their schedule of sampling in their respective divisions also shows that the work has been done with the support of divisions. In the review meeting held on 6/7 May, 2008, all the Executive Engineers have given their consent in the favour of sample collection and receipt of the report. This is also supported by the letters already sent to the Headquarter, the photographs, GPS reading and the authentication of sampling by the household. The company after entering into agreement opened a full fledged water testing laboratory in Patna. Latest techniques such as GPS readings of each sampling locations were made compulsory so that location of water sources can be ascertained at any point of time. The water quality consultants of Water Quality Monitoring Cell were engaged to monitor the sampling as well as testing work. Test results were also randomly checked by State Level Laboratory. That the company has successfully completed its job in the schedule time. In the implementation of work, no Government norms have been - 13 - violated. Funds have been sanctioned, disbursed as per the mandate of A.G. and in compliance with the prudent Government Fiscal norms. Funds have been spent as per the prudent fiscal norms and no impropriety has been done. As a matter of fact, this Public Interest Litigation is nothing but a frivolous litigation. The writ petition filed by the petitioner is not aimed at redressal of genuine public wrong/injury but founded on personal vendetta. This petition is nothing but a mechanism to abuse the process of law for oblique consideration. In fact such petition deserves to be thrown out by rejection at the threshold. At the outset this writ petition is not maintainable when the petitioner has asked for invitation of departmental enquiry against the then Secretary and Engineer-in-Chief which reveals the fact that this petition is founded on personal vendetta and it is fit to be dismissed.” 8. We will be failing in our duty if we do not take note of paragraphs 24 and 26 of the counter affidavit filed by the respondent no.11. Mr. Giri, learned senior counsel would submit with immense vehemence that the petitioner is a stooge at the instance of an Executive Engineer, who was transferred and later on visited with major penalty. In this - 14 - context, we may think it apposite to reproduce paragraphs 24 and 26 for the sake of completeness: - “24. That the statement made in paragraph no. 22 of the writ petition is misconceived and thereby denied. It is stated that the petitioner‟s interest is malafide and with a preconceived notion. In fact, the petitioner is a cameo who is set up by some one who wants to settle score to the officials. In fact, one Mr. Devendra Prasad Singh, an Executive Engineer of the department who at the relevant time, was posted at Nawadah and later on at Siwan. Mr. Devendra Prasad Singh has made hue and cry about his transfer to Siwan and even went to the Hon‟ble High Court against the transfer order but later on he withdrew his writ application. Before his transfer order to Siwan, a departmental proceedings was pending against him wherein he was recommended to be “censured” and the related file was sent to Cabinet Secretariat for C.M‟s approval wherein it was proposed by the Cabinet Secretariat to award major punishment to the delinquent officer namely Mr. Devendra Prasad Singh. Again one Mrs. Meena Kumari Singh wife of Sri Devendra Prasad Singh, has represented before the C.M. in this matter of punishment. Again the same Mrs. Meena Kumari Singh wife of Sri Devendra Prasad - 15 - Singh, North Mandiri, Chakhan Tola, Devi Sthan, Patna-1 has sought some information under RTI Act from the PHE Department related to the project. The piece of information supplied by the department has been used by the petitioner in this writ petition, marking as Annexure-6 of the writ petition and matter related to the same piece of information supplied by the department has been exhaustively dealt in para-16 and in other paras of the writ petition. This PIL has specifically asked for certain querries related to Nawadah and Siwan that clearly transpires the fact that Sri Devendra Prasad Singh was posted as the Executive Engineer at both places. In fact in the abovesaid departmental proceeding, recommendation of minor punishment of censure was made by Mr. Shashi Shekher Sharma the then Secretary who is presently respondent no. 10 in the writ petition. This clearly reveals that the petition is founded on personal vendetta and it is fit to be dismissed.” “26. That the statement made in paragraph no. 23 of the writ petition is misconceived and thereby denied. It is stated that so called Public Interest Litigation is nothing but colourable use of process of law. This writ petition is aimed at harassing senior officers of the department by - 16 - leveling false and frivolous allegations against them. As a matter of fact, a departmental proceeding has been pending in the Cabinet Secretariat against the delinquent Mr. D.P. Singh. The recommending authority for the award of the punishment of Censure against Mr. D.P. Singh was the then Secretary Mr. Shashi Shekhar Sharma, who is respondent no. 10 in the writ petition. Hence his prejudice against the Secretary is obvious. He expected that since Mr. Madan Kumar, Engineer-in-Chief of the Department, is of the same cadre, hence to use the influence and support of Mr. Madan Kumar to bail him out of the perils of the departmental proceeding but nothing happened as per his unwarranted, unlawful and unethical expectation. Hence his grudges against Mr. Madan Kumar Engineer-in-Chief-cum Special Secretary who is respondent no. 11 is obvious and hence Mr. Madan Kumar has been impleaded as one of the respondents in this writ petition.” 9. On a perusal of the aforesaid pleadings two aspects emanate, namely, (i) an allegation has been made by the petitioner, who claims to be a resident of Nawada and a social activist that the respondent no.11 has awarded the work in - 17 - favour of the respondent no.12 on extraneous consideration and (ii) the work done by the said respondent was on the basis of quid pro quo inasmuch as the samples carried and the tests done do not meet the standard. As has been stated earlier this Court had called for a test report from Kolkata Institute and the said report almost confirms to the report submitted by the 12th respondent. There is a slight variation. Thereafter, learned counsel for the petitioner has taken pains, as he would submit, to prepare a chart by making a comparison by the two agencies. As is evincible, the Central Board has filed an affidavit through its Director, the extract of which we have reproduced hereinbefore. Be it clarified, the Central Board has expressed its opinion and accepted such variation permissible. Having said so the affidavit proceeds to state in paragraph 6 as follows: - “6. That in view of the above for better comparison of results of the two laboratories it is suggested that joint monitoring may be conducted at the selected locations where the critical water quality parameters have been found to be exceeding the standards with wide margin.” - 18 - 10. We are aware, we had already reproduced paragraph 6 hereinbefore but to have a clear and complete picture it has been quoted again. 11. What we understand from the aforesaid paragraph is not suggestive that the Kolkata Institute‟s report is not correct. It is, in fact, a suggestion for future guidance. Learned counsel for the petitioner would submit that the suggestion is in praesenti. True the words used are for better comparison but if the entire paragraph is read in the context in which it has been written the concern of the Central Board is that there should be supply of non-contaminated water. That is what also submitted by Mrs. Binita Singh, learned counsel for the Central Board. 12. It is worth noting that the Kolkata Institute is under the Directorate General of Health Services, Government of India. When a Government of India Undertaking has almost accepted the report and the Central Board does not find gross error it is really difficult to keep the litigation to carry on at the instance of one, who seems to have some kind of axe to grind. 13. In course of hearing a suggestion was given to Mr. - 19 - Shahi, learned Advocate General as well as to Mrs. Binita Singh, whether samples can be collected from chosen places which will be examined by the Central Board. The selection of places shall rest with the Central Board. Mrs. Binita Singh, learned counsel for the Central Board submitted that the picking-up the sample till the examination is conducted, the entire cost has to be borne by the State. Mr. Shahi, learned Advocate General fairly conceded to the same. 14. In our considered opinion the consumption of uncontaminated water has to be treated as a right under Article 21 of the Constitution of India, as the same engulfs and encapsules to live a healthy life and health is the primary and principal concern of life and it has to be lived with dignity and life with decency. The same cannot be allowed to emasculated or marginalised. Thus, the exercise be carried out by the State and the Central Pollution Control Board working in harmony within a period of four months from the date of receipt of the order passed today. 15. Before parting with the order, we must put on record that the allegations that have been made in this case are not in good taste and does not behove a social activist. Had - 20 - the matter been appositely put and pleaded with regard to the contamination of water the same would have been in a different realm expositing public interest in the truest spirit but unfortunately, there is reflection of personal vendetta. True it