CWP No.3796 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3796 of 2008 Date of decision : April 15, 2009 Ram Sarup and others ....Petitioners VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR. JUSTICE T.S. THAKUR, CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Alok Jain, Advocate, for the petitioners. Mr. Rameshwar Malik, Addl. Advocate General, Haryana, for respondents No.1, 3, 4 and 5. Mr. Namit Kumar, Advocate, for respondent No.2. Mr. R.N. Singal, Advocate, for respondent No.6. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. The present petition, in public interest, is to seek a Writ of Certiorari quashing the permission dated 03-10-2007 (Annexure P-4) granted to respondent No.6 for laying of private underground pipeline and also to quash such other permissions granted by respondent No.5 for laying down underground pipelines. The petitioners have alleged that respondent No.5, CWP No.3796 of 2008 -2- Executive Engineer, Provincial Division, PWD (B&R) Branch, Fatehabad has granted indiscriminate permissions to private persons for laying underground pipelines along the side of the metalled road. The petitioners had made grievance in respect of permission granted to respondent No.6 for laying a 1400 ft. long pipeline on Tohana- Saniana Road through letter dated 15-10-2007. In response to information sought by the petitioner under Right to Information Act, 2005, the respondent No.5 has communicated that such permissions has been granted in terms of instructions dated 20-11-2002 (Annexure P-9). It is alleged that such instructions do not deal with permission to individuals to lay underground pipelines along the side of metalled road. The petitioners also rely upon communication dated 7-9-2007 issued by the Central Ground Water Authority constituted vide Notification dated 14-01-1997 under Section 3(3) of the Environment (Protection) Act, 1986. Vide aforesaid communication, 45 blocks within the State of Haryana were found to be over- exploited areas and, therefore, it is alleged that such permission to lay a pipeline of already over-exploited ground water would be in utter disregard of environmental laws and in breach of the guidelines issued by the Central Ground Water Authority. It is further alleged that respondent No.6 purchased 5 marlas of land vide Sale Deed dated 07-05-2007. Thereafter, respondent No.6 has dug tubewell in the said 5 marlas of area without any permission from any authority and has sought permission to lay underground pipeline for irrigating his fields at a distance of 1400 ft. from the tubewell in wholly illegal CWP No.3796 of 2008 -3- and arbitrary manner. In reply filed on behalf of respondents No.1 and 4, it is pointed out that a letter was received from respondent No.2 proposing to notify 45 over-exploited blocks within the State of Haryana on the latest ground water assessment. However, in a separate reply filed on behalf of respondents No.3 and 5, it has been pointed out that permission for laying pipeline on Tohana-Saniana Road, RD-18.00 & 19.900 on Katcha berms and six feet away from the metalled road was accorded to respondent No.6 with the condition that (a) Digging of earth, laying of pipe, relaying of compaction of earth properly and clearing of site will be borne by the applicant; (b) The damages of plant/trees will be the responsibility of the applicant; (c) Any kind of leakage, the applicant will be held responsible for damages of metalled road. It was averred that respondent No.6 has deposited Rs.43,637/- and that the permission is for drinking water and for irrigation purposes. In a separate reply filed on behalf of respondent No.2, it was stated that 45 blocks in the State of Haryana has not been notified as 'over-exploited'. However, a communication was addressed to the Chief Secretary, Government of Haryana for taking up necessary measures for artificial recharge to ground water in the State and to take up certain measures for registration of ground water abstraction structures in the over-exploited areas falling in the State. It was mentioned that notification in respect of over-exploited block of Tohana is under consideration under Section 5 of the Environment (Protection) Act, 1986. CWP No.3796 of 2008 -4- On 16-1-2009, this Court adjourned the matter to enable Central Ground Water Authority to take a final decision in the matter of issuing notification in terms of Section 5 of the Environment (Protection) Act, 1986. In deference to the said directions, Mr. Namit Kumar, counsel for respondent No.2 has handed over a communication dated 12-02-2009 from Administrator, Central Ground Water Authority. The said letter reads as under:- "Sub: CWP No.3796/2008 filed by Shri Ram Sarup & Ors etc. Vs. State of Haryana & Ors- reg. Sir, With reference to your letter No.10-84/NWR/Estt/2K8 dated 11-2-09 on the subject cited above, I am directed to inform you that the Central Ground Water Authority in the 25th meeting held on 7-8-2008 has decided that regulation of ground water development needs to be viewed in broader perspective and should not completely stop/hinder development process indiscriminately. For notification of new blocks/areas for regulation of ground water development, it was emphasized by Members that this fact and other criteria based on the stage of development and other necessary parameters may be worked out by Regional Offices to identify new blocks for notification and to also recommend de-notification where ever necessary on the basis of the same criteria. It was further decided to discontinue the requirement of registration of ground water abstraction structures. In view of the above and as per the recommendations of the Regional Director, Central Ground Water Board, Chandigarh on the present status of ground water levels in the area, it has been decided that instead of imposing restrictions on ground water development in areas or for industries, operations or processes, rain water harvesting, CWP No.3796 of 2008 -5- artificial recharge and water conservation are to be taken up in the area. The decision of Authority may kindly be conveyed to the Hon'ble High Court through the Government Counsel. The issues with the approval of Chairman, CGWA." The recommendations of the Regional Director, Central Ground Water Board, Chandigarh referred to in the above communication has also been produced by the learned counsel for the said respondent. It is to the following effect:- "Fatehabad is one of the smallest districts of Haryana located in the northern part of the state. Tohana is one of the five blocks lying in the east of Fatehabad district. XXX XXX In general clay formation predominates the sandy formation in the district, but in the northern part of the district proportion of sandy formation increases. The granular zones are lenticular in shape. Ground water quality is fresh to marginal in Tohana block. Stage of ground water development in Tohana block is 198% as per the ground water estimation as on 31-3-2004 and falls under over exploited category. In major part of the block depth to water level ranges from 3.84 m below ground level (mbgl) at village Samain 12.43 mbgl at Tohana. In order to study the long term behaviour of water levels, the data of two existing National Hydrograph Network Stations in Tohana block has been analyzed. The long term water level trend analysis of national hydrograph station at village Samain (Annexure-1) has indicated that during the period from the year 1984 to 1988 water levels have shown rise at the rate of 38 cm/year. From 1989 to 1993 water levels have shown decline at the rate of 4 cm per year. During this period the annual rainfall CWP No.3796 of 2008 -6- has been recorded as deficient in the years 1989, 1991 & 1993. The water levels have again risen at the rate of 37 cm/year for the period from 1994 to 1998. During the period from 1999 to 2003 there is a decline at the rate of 5 cm/year and from 2004 to 2008, the water levels have again shown rise at the rate of just 1 cm per year. At Tohana hydrograph network station, between the period from 1984 to 1988 (Annexure-II) water levels have shown rise at the rate of 52 cm/year while during the period from 1989 to 1993 it has shown decline at a marginal rate of 3 cm/year. During this period the district received deficient rainfall. From the period from 1994 to 1998 there has been a general rise in water levels at the rate of 43 cm/year. During the period from 1999 to 2003 the water levels have shown decline at the rate of 9 cm/year, which has come down to 5 cm/year during the period from 2004 to 2008. The long term behavior of water levels as above is indicative of the fact that the water levels situation is not alarming. Moreover, Haryana Agriculture department has launched 'Less Water Intensive Crops' campaign in Tohana block about four years back. Also, two ground water recharge schemes are being implemented at Tohana & Jakhal by Haryana Agriculture department. Central Ground Water Board is also encouraging various artificial recharge and water conservation practices in the state which may improve the ground water situation in the area. In view of the above mentioned analysis of long term water levels, it is opined that the ground water regime should be monitored for couple of more years, before the block is reviewed for 'Notification' by the Central Ground Water Authority." The recommendation of the Regional Director, Central Ground Water Board gives adequate reasons for not imposing CWP No.3796 of 2008 -7- restrictions on ground water development in area. There is no notification prohibiting use of ground water. We do not find any reason to take a different view than what has been taken by the experts on the subject. Therefore, the action of the respondent No.6 in installing tubewell pipe cannot be said to be illegal over the land purchased by him. But, the learned counsel for the State could not point out any any rule, instruction or guidelines issued for consideration of request of an individual to lay pipelines in public propery. Undisputedly, large number of individuals are making requests to lay underground pipelines through the public land. Therefore, the State Government is well advised to prepare a policy and to prescribe conditions for grant of permission to lay underground pipelines through the public property. The State Government is required to consider the effect of environment, floura and fauna likely to be damaged by the acts of an individual. The permission granted should ensure that there is no damage to the environment and how a damage can be undone. The present writ petition is accordingly disposed of with a direction to the State Government to consider the matter and issue guidelines in respect of size of pipes which can be permitted to be used underground: the depth to the extent of which the pipe shall be embedded in earth and the distance for which pipes can be permitted to be laid and the terms on which the same can be done including charges if any payable. The State Government shall ensure that while granting permission for laying underground pipelines, the CWP No.3796 of 2008 -8- public property, roads, the side berms, trees and culverts etc. are not damaged and shall take reasonable security for ensuring due compliance of such conditions. The needful should be done within a period of six months from the date a copy of the order is received by the State Government. (T.S. THAKUR) (HEMANT GUPTA) CHIEF JUSTICE JUDGE April 15, 2009 manju