-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Rajendra Kumar Razdan Vs. State of Rajasthan D.B.CIVIL WRIT PETITION NO.4271/1999 UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. Date of Judgment: February 6t h,2007 P R E S E N T HON'BLE MR.JUSTICE N.N.MATHUR HON'BLE MR.JUSTICE MANAK MOHTA Mr.Rajendra Kumar Razdan, petitioner, present in person. Mr.N.M.Lodha, Additional Advocate General. Mr.J.P.Joshi ) Mr.Rajendra Mehta ) Mr.Pradeep Shah ) Mr.Manish Shishodia ) Mr.A.K.Rajvanshi ) Mr.Tribhuvan Gupta ) Mrs.Pratistha Dave ) Mr.P.S.Bhati ) Mr.B.S.Charan ) for respective parties. BY THE COURT : (PER HON'BLE MR.MATHUR J.) 1. Udaipur, the most majestic & splendid city of lakes amidst the historic relics of Mewar, founded in 1559 AD, -2- finds place prominently on global tourist map. The fresh water lakes of Udaipur constitute a unique system of water harvesting method combined with judicious water management adding to the drinking water resource as well as creating an eternal attraction for tourists from all over the world. 2. Pichhola Lake is the oldest among all the City Lakes deriving its name from Village “Pichholi”, the lake is roughly triangular in shape with its base along the palace ridge. It accounts for a total water body area around 6.96 sq.km. and has gross, live and dead capacities. The storage capacity at the gross level is 483 mcft. The live and dead capacities are 318 and 165 mcft respectively. The river Kotra (Sisarma) and Amarjok (Bujhada) are the chief source of water supply to the lake having a maximum depth of 10.5 meters. Apart from supplying drinking water, it caters to all other domestic needs of the inhabitants of the City. 3. “Rang Sagar” constructed along the western front of the City, is a link between the Pichhola Lake towards south and Swaroop Sagar and Fateh Sagar in north. It has a length of 1.03 km., width of 245 meters and a maximum depth of 7 meters. In the west of Rang Sagar, there are two minor lakes called Kumariya and Kalaliya Talav. Swaroop Sagar is situated between two large sized man-made lakes -3- i.e. Fateh Sagar in north and Pichhola in south and flanked directly in the south by yet another small extension of Rang Sagar, its intermediate position has sluice gates and canal to feed water to Fatehsagar lake towards north, though basically it is linked with Pichhola through Rang Sagar lake. 4. Fateh Sagar Lake is the heart of the most delicate and culturally active part of Udaipur City. The lake is 720 meters long, about 100 meters wide and rises nearly 40 meters from the ground level towards east. The lake stretches 2.6 kms. in north-south and 1.8 kms. in east-west direction, covering a total water spread of nearly 4.0 sq.km. and has a maximum depth of 13.4 meters. It commands a total catchment area of about 41 sq.km. The gross, live and dead capacities are 427.60, 247.60 and 180 mcft water respectively. The lake primarily depends on Madar Feeder from Madar Dam built across the Ahar river which is located at a distance of 8 kms. north of the lake. It also receives water from the Badi Talav. Besides the above, there are rural lakes like Gordhan Vilas, Udai Sagar. 5. Petitioner Rajendra Kumar Razdan, an environmentalist and a public spirited person by way of instant public interest petition filed in the year 1999 lamented that the City of lakes, known for beauty of its water bodies, is now witnessing the destruction of its -4- glorious heritage. The unique lake system has been confronting a number of challenges to its existence. Dumping of waste and garbage and lakhs of litres of sewage, uncontrolled growth of water hyacinth and the silting caused by illegal construction of buildings near the lakes have endangered these water bodies over the years. They are now becoming virtually dry following successive droughts. The pleadings in this regard have been noticed in detail in one of our earliest orders dated 8t h May, 2000 reported in 2000(2) RLW (Raj) 1307. By interim order, we directed the various State and local authorities to prepare a time bound Action Plan to overcome the crisis of various problems referred therein. Different task forces were constituted for different jobs like desilting of lakes, sewerage diversions, disposal and treatment, solid waste management, prevention of construction in No Construction Zone, plantation in the catchment area of lakes etc. We also directed to undertake the work of desilting on war scale. The State Government was directed to submit the status report with respect to the scheme of the Mansi Vakal, Devas and Borana connecting with the Pichhola Lake, in order to save the water regime of lakes system of Udaipur and provide clean, healthy drinking water to the City of Udaipur. The Court also appointed the Court Commissioners viz; Managing Director RSMM Corporation; Dr.Arvind Bhatnagar the Scientist of National Fame and Social Worker; and Shri -5- Ramesh Nandwana President Bar Association Udaipur. As usual, the respondents failed to prepare a time bound programme. The court was not satisfied with the paper work done by the State or local authorities. The Divisional Commissioner, Udaipur who is the President of the Jheel Sanrakshan and Jheel Vikas Society, hereinafter referred-to as “JSJVS” was asked to prepare a time bound programme. He was made responsible for the faithful execution of the programme. The Court Commissioners also submitted a report. It was also brought to the notice of this Court that the Udaipur Lakes System has been included in the National Lakes Conservation Project so that something substantial can be done by the Ministry of Environment, Government of India. Thus, a notice was given to the said Ministry as well. This Court also received a letter by post from late Shri Balwant Singhji Mehta, a veteran freedom fighter aged 101 years. He had initiated the first Public Interest Litigation with respect to Udaipur Lakes as back as in the year 1982. He expressed his utmost dissatisfaction in the matter. He was at pains to say that on completion of 100 years of age, his desire is that before he leaves for heavenly abode, he may see clean and beautiful lakes of Udaipur. Having noticed the feelings of freedom fighter Shri Balwan Singh, in one of our orders, it was observed that touching feelings of freedom fighter must reach to all concerned responsible for execution -6- of the task. This Court continued to monitor the execution and the execution plan by way of continuous mandamus. It will be relevant to refer one offshoot writ petition filed by E.T.H.Limited challenging the order of the Collector, Udaipur, directing the petitioner Company to stop the construction work. In the said judgment, we emphasized on proper balance between the development and the environment so that both may co-exist without affecting the other. The said judgment is reported in 2001(2) WLC (Raj.) 249. It was observed in para 12 thus: “12. We are to take a reasonable and balanced view of the entire situation. It is necessary to accommodate all the essential components for a healthy and developing Society. We can not retract our steps from industrialization to simplistic nature. Proper planning with a will to improving the environment is the basic need to control pollution. On the world map, Udaipur is one of the choicest Tourist destination. For the development of the Tourism industry, Udaipur needs atleast some hotels providing accommodation of international standard to foreign and local guests, but not at the cost of polluting the lakes. They must bear in mind that by polluting the lakes, they will not survive. Lakes are to be respected and worshiped. Even slightest disturbance polluting the lakes shall not be tolerated, howsoever high or mighty one may be, he/she shall be dealt with in an exemplary manner. It must be ensured that sufficient technical and preventive measures are taken. The problem calls for popular vigil. All these aspects are required to be kept in view by the authority concerned, while considering the application for renewal of permission.” 6. While it is true that in a developing country, there have to be developments, but that development -7- should be in the closest possible harmony with the environment, as otherwise there would be development but no environment, which would result in total devastation, though, however, may not be felt in present but at some future point of time, but then it would be too late in the day, however, to control and improve the environment. The present day society has a responsibility towards the posterity for their proper growth and development so as to allow the posterity to breathe normally and live in a cleaner environment and have a consequent fuller development. Thus, it is the responsibility of one and all to check and control the degradation of environment and since the Law Courts also have a duty towards the Society for its proper growth and further development and more so by reason of definite legislations in regard thereto. Thus, it is the Constitutional obligation of judicial powers to ensure that there is no such degradation of the environment. It is of course true that in the present global scenario, it is neither feasible nor practicable to have negative approach to the development process of the Country or of the society, but that does not mean, without any consideration for the environment. Thus, there has to be a proper balance by way of protection of environment and the development process. 7. The Apex Court in M.C.Mehta vs. Union of India -8- reported in 1997(3) SCC 715 while deciding the issue whether construction in the area around the lakes Badkhal and Surajkund, which in the case, were notified as sensitive areas because of the fact that they were tourist places, should be stopped to preserve the lakes and catchment area. The material relied on by the Court in the said case was based on two expert opinions by the Central Pollution Control Board and “NEERI”, which reported that the large scale construction activity in the close vicinity of the two lakes is bound to cause adverse impact on the local ecology. In the said case, the Apex Court also held that the “precautionary principle” has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51-A(g) of the Constitution give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. The “precautionary principle” makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. Recently, the Supreme Court in Susetha vs. State of Tamil Nadu reported in (2006) 6 SCC 543 observed that the water bodies are required to be retained. Such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognized in Articles 47 and 48-A of the Constitution of India. Article 51A of the Constitution of India -9- casts a fundamental duty on every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife. Reference has been made to M.C.Mehta vs. Union of India reported in (1997) 3 SCC 715 and Intellectuals Forum vs. State of A.P. reported in (2006) 3 SCC 549. Reference has also been made to T.N.Godavarman Thirumulpad vs. Union of India reported in (2006) 5 SCC 47, wherein the Court again highlighted the importance of preservation of natural lakes and particularly those, which are protected under the Wildlife (Protection) Act, 1972. 8. This Court at one stage feeling disturbed of dried-up lakes and also the disturbance caused in the catchment areas, constituted the Expert Committee having observed - “However, there has been a feeling of frustration due to successive failure of monsoon. This year the State is blessed with rains including Udaipur and surrounding districts but the Udaipur lakes, which are surviving for centuries, are now helplessly sounding their death knell.” 9. This Court constituted a Committee comprising of following members to undertake a general survey of the catchment area and suggest necessary measures to restore the catchment area to its original shape and use: “1) Shri Rajat Kumar Mishra, IAS Convener Managing Director, Rajasthan State Mines & Minerals Ltd., -10- 2) Director (MIS), ID & R, Member Irrigation Department, Sinchai Bhawan, JLN Marg, Jaipur. 3) Jt.Director Member Udaipur Range, Watershed Development & Soil Conservation Department, Udaipur. 4) The Chief Engineer Member Public Health Engineering Department Jaipur. 5) The Collector, Udaipur Member” 10. The profile of the Committee is somewhat indicative of the holistic study carried out in the catchment area. The main departments involved in the study were Departments of Mines & Minerals, Irrigation, Watershed Development and Soil Conservation and PHED. The department of Land Revenue headed by the Collector actively participated as a member. The Committee also consulted the I.S.R.O. and other related State departments to provide satellite data for better appreciation of the information. The report of the Committee is on record. We may briefly refer the contents of the report as follows: “PARAMETERS FOR THE SURVEY: 1. Compare the rainfall data to find out the relationship between the duration and the intensity of the rainfall on the run off of the water for carrying the sufficient amount of water to the lakes. -11- 2. Identify encroachments on the primary channels, and their effect on the imbalance in the water flow. 3. Study the entire catchment area from where the water flows. 4. Role of water harvesting structures in affecting the flow of water, and its construction parameters. 5. Effect of drilling tube wells in the riverbed. 6. Impact of the absence of vegetation in the primary channel and its impact on soil erosion and silting in the primary channel. INFERENCES DRAWN BY THE COMMITTEE: 1. Primary reason for the drying up of the lakes was scanty rainfall in the catchment area, which was unable to create a proper flow of water to the lakes. 2. It was found that encroachments were definite impediments on the path of water flow. These encroachments created a substantial damage to the riverbanks and beds in terms of under cutting on the meandering edges and scouring of floors at some weak zones and deposition of sediments throughout the channels, making them uneven and undulated. It was observed that all encroachments should be removed from the beds of the drainage channel with due application rules. 3. Another observation made on the basis of the satellite data was the increase in the area of agriculture and also agriculture during the off-season, which further depletes the underground water, and also leads to the pollution of the same. 4. The survey also revealed the presence of a large number of check dams with more than 2 meter height which were causing obstruction to the flow of water (out of 53 such anicuts and check dams 23 our clearly above 2 meter height) 5. Western hills of the catchment area are devoid of vegetation leading to soil erosion. 6. Another important observation made was in relation to the effect of tube wells. Most of them being unauthorised on the bed of the river, draw out a large scale of water which results in underground voids, -12- which in turn disrupt the flow of water into the river. RECOMMENDATION: 1. Removal of encroachment from the riverbed. 2. River bed to be made free of any kind of agricultural activity 3. Sinking of tube wells should be regulated by the revenue administration under relevant rules except when the limited purpose of sinking the tube well is to use underground water for drinking purposes. 4. Creation of a narrow carrying channel for flow of water under sub optimal condition. 5. Prevention of uncontrolled construction of anicuts and check dams in the catchment area. 6. These structures to be monitored and regulated by the district administration. 7. Need was also felt for an in depth analysis of role agriculture in the catchment area. 8. Increase the plantation on the western hills and along the water channels in the catchment area.” 11. At this stage, it will also be relevant to refer-to another decision of this Court rendered in Abdul Rahman vs. State of Rajasthan reported in 2004(4) WLC (Raj) 435, wherein it was held that Nadi land cannot be used for any sort of construction. Taking account of the recommendations of the Experts Committee, this Court issued wide ranging directions, which can be noticed as follows: “1. All land shown as drainage channels like nalla, rivers, tributaries etc. as on 15.8.1947 should be declared as Govt. land. Any conversions made after 15.8.1947 should be declared illegal. The relevant act -13- and rules must be amended accordingly. 2. Demarcation of catchment areas should be done by construction pillars at suitable spacing depending upon size of the catchment area with the help of GT sheet of scale 1:25000 or 1:50000 and/or “Water Shed Atlas of Rajasthan” prepared by the State Remote Sensing Application Centre, Jodhpur. 3. Demarcation of drainage channels - (i) In uninhabited areas, this can be done by installing pillars at suitable spacing or by constructing side wall depending upon size of drainage channel and its importance. (ii) In urban and rural areas, the demarcation of drainage channels must essentially be done by constructing side walls of appropriate height and thickness. 4. In the government owned lakes and other water bodies, the Khatedari rights of private persons in their submergence area should be brought under the ownership of the Government. 5. The drainage channels in the catchment areas should be got inspected by engineering professionals and patwaris. Wherever there are obstructions in nalla, it should be suitably removed by constructing culverts, deepening and widening of nallas etc. 6. Wherever there are any construction activities, which may interfere with the flow of water in drainage channels, no objection certificate must be obtained from the irrigation department. 7. The Anicuts more than 2m height above deepest nalla bed should be identified. The height more than 2m should be dismantled. 8. Wherever residential colonies have been constructed obstructing flow in drainage channels, the obstruction must be removed and nallas may be deepened/ constructed. 9. On the periphery of lakes, ponds, water bodies in urban and rural areas, a pucca drain should be constructed on periphery of the water body to prevent entry of domestic, industrial and other waste in the water body. -14- 10. For soil conservation work, suitable guidelines must be issued by the “Watershed & Soil Conservation Department” so that these works make minimum possible interference with the flow of water. 11. The district administration should specify places for dumping various types of waste material. If anybody is found to dump the waste material in other places, particularly drainage channels, then suitable punishment should be provided in the law. 12. The government should use television, radio and newspapers to create awareness in this matter. 13. Possibility should be explored to use marble slurry as construction material, for filling depressions etc. as has been done for disposal of fly ash from Thermal Power Houses. 14. The water quality of water bodies should regularly be monitored. 15. Wherever over-burden or waste materials generated from mines and processing units, have been dumped obstructing flow of water in drainage channels; diversion drains and check walls must be constructed. For that purpose, special condition should be incorporated in the lease/license agreement.” 12. We are happy to note that the continuous monitoring, the serious efforts made by the State and local authorities, the reporting of the Court Commissioners, the vigilance of the petitioner and other citizens, has yielded satisfactory results which can be briefly indicated as follows: SEWERAGE SYSTEM : 13. 23492 Mtr. (23.49 km.) sewer line has been laid on the eastern and western bank of the Pichhola Lake. 1880 -15- manholes have been constructed. 3404 houses have been given connections. The report shows that for the purpose of non-clog, submersible pump sets have also been installed. The maintenance work has also been carried out satisfactorily. It is also reported that the sewerage project has been completed and is running satisfactorily. The details of the sewerage project are given as follows: “Details of the works executed under Sewerage Project are as under: (A) Sewer line Area (i) 2674 Mtrs. Laid in side lakes i.e. Navghat to Lalghat, Nathi Ghat to Brahmpole, Ambamata, Bhattwari to Brahmpole, Natural Hotel to Ambapole S.P.S., Brahmpole to Ambapole to Chandpole to Jatwari to Bichhu Ghati to Hathipole. (ii) 9316 Mtrs. Laid along the Eastern Bank of lake Pichhola i.e. Settlement Office to Nav Ghat, Rao Colony to Lal Ghat, Lal Ghat, Gangore Ghat, Gadiya Devra, Jaggananath marg, Chandpole park, Purohitji ki Haveli, Hotel Hiltop, Ambavgarh Kachhi Basti, MMVM School, Harijan Basti, Bhattwari, Monika Complex and Ambamata area etc. -16- (iii) 11502 Mtrs. Laid along the Western Bank of lake Pichola i.e. Trident Hotel, Haridas ji Ki Magri to Malla Talai Circle, Raza Colony, Master Colony, Ambamata Harijan Basti, Rani Palace, Brahmpole Malla Talai Road, Jain Temple, Nagar Parishad Colony, Naga Nagri, Nagarwara, Bheel Wara, Khodi Amli, Pipli Chowk, Amet Haveli, Ambapole, Baneria Haveli area etc. (B) Man Holes Area (i) 94 Nos. Constructed on sewer laid from Navghat to Lalghat, Nathi Ghat to Brahmpole, Ambamata, Bhattwari to Brahmpole, Natural Hotel to Ambapole S.P.S., Brahmpole to Ambapole to Chandpole to Jatwari to Bichhu Ghati to Hathipole. (ii) 1005 Nos. Constructed on the Eastern Bank of lake Pichola i.e. Settlement Office to Nav Bhat, Rao Colony to Lal Ghat, Lal Ghat, Gangore Ghat, Gadiya Devra, Jaggananath marg, Chandpole park, Purohit ji ki Haveli, Hotel Hiltop, Ambavgarh Kachhi Basti, MMVM School, Harijan Basti, Bhattwari, Monika Complex and Ambamata area etc. (iii) 781 Nos. Constructed on the Western Bank of Pichola i.e. Trident Hotel, Haridas ji ki Magri to Malla Talai Circle, Raza Colony, Master Colony, Ambamata Harijan Basti, Rani Palace, Brahmpole- Malla Talai Road, Jain Temple, Nagar Parishad Colony, Naga Nagri, Nagarwara, Bheel Wara, Khodi Amli, Pipli Chowk, Amet Haveli, Ambapole, Baneria Haveli area etc. -17- (C) House Connection Area (i) 2065 Nos. Connected by House Connections i.e. sewer laid on the Eastern Bank of Lake Pichola i.e. Settlement Office to Nav Ghat, Rao Colony to Lal Ghat, Lal Ghat, Gangore Ghat, Nadiya Devra, Jaggananath marg, Chandpole park, Purohit ji ki Haveli, Hotel Hiltop, Ambavgarh, Kachhi Basti, MMVM School, Harijan Basti, Bhattwari, Monika Complex and Ambamata area etc. (ii) 1339 Nos Connected by House Connections i.e. sewer laid on the Western Bank of lake Pichola i.e. Trident Hotel, Haridas ji ki Magri to Malla Talai Circle, Raza Colony, Master Colony, Ambamata Harijan Basti, Rani Palace, Brahmpole- Malla Talai Road, Jain Temple, Nagar Parishad Colony, Naga Nagri, Nagarwara, Bheel Wara, Khodi Amli, Pipli Chowk, Amet Haveli, Ambapole, Baneria Haveli area etc. (D) Pump Sets Area (a) Installation of Sewerage Non-Clog Submersible Set. (i) 6 Nos. Main Sewerage Pumping Submersible Pump Set. (ii) 1 No. D.G.Set at Main Pumping Station, Ambamata (b) Intermediate Pumping Stations (i) 1 No. Maharaja Ghat (ii) 1 No. Amet Haveli (iii) 1 No. Gadiya Devra -18- (E) Maintenance Work of the System is carried out satisfactorily since date:- (i) 1.12.2004 Operation and Maintenance of sewer system i.e. Navghat to Lalghat, Nathi Ghat to Brahmpole, Ambamata, Bhattwari to Brahmpole, Natural Hotel to Ambapole S.P.S. Brahmpole to Ambapole to Chandpole to Jhatwari to Hathipole. (ii) 1.4.2005 Operation and Maintenance of sewer system i.e. laid along the Eastern Bank of lake Pichola & House Connections i.e. Settlement Office to Nav Ghat, Rao Colony to Lal Ghat, Lal Ghat, Gangore Ghat, Gadiya Devra, Jaggananath marg, Chandpole park, Purohit ji ki Haveli, Hotel Hiltop, Ambavgarh Kachhi Basti, MMVM School, Harijan Basti, Bhattwari, Monika Complex and Ambamata area etc. (iii) 1.4.2005 Operation and Maintenance of sewer system i.e. laid along the Western Bank of