1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL P.I.L. Writ Petition No. 13 of 2009 Prof. Ajay Singh Rawat C/o Indian National Trust for Art and Cultural heritage Uttarakhand Chapter, Nainital through its Convener …..… Petitioner Versus 1. Union of India, through the Secretary, Ministry of Water Resources, Government of India New Delhi. 2. Union of India, through the Secretary, Ministry of Environment and Forest,Government of India New Delhi. 3. State of Uttarakhand, through Secretary, Ministry of Environment and Forest,Government of Uttarakhand,Dehradun, Uttarakhand 4. State of Uttarakhand, through Secretary, Ministry of Water Resources, Government of Uttarakhand, Dehradun, Uttarakhand 5. Chief Conservator of Forest, Kumaun Region, Nainital 6. Commissioner, Kumaun Region, Nainital 7. District Magistrate, Nainital 8. Nainital Lake Special Area Development Authority through its Secretary. 9. Army Welfare Housing Organization Society, South Hutment, Kashmir House, Rajaji Marg, New Delhi through its Secretary ` ……….Respondents Shri Rajeev Singh Bisht, Advocate, present for the petitioner. Shri Subhash Upadhyaya, Brief Holder, present for respondent no. 3 to 7. Shri Shobhit Saharia, Advocate, present for the respondent no. 8 Col. A.K. Sharma, present in person for respondent no. 9. 2 Hon'ble Prafulla C. Pant,J. Hon'ble Servesh Kumar Gupta, J. Oral: Hon'ble Prafulla C. Pant, J. By means of this writ petition in the form of Public Interest Litigation, the petitioner has sought writ in the nature of mandamus directing the respondents to stop illegal construction of boring and pumping water in the area adjacent to Khurpatal lake, which according to him, is allegedly threatening the water resources of villages Khurpatal, Patikhet, Jogyura and Silmoria. He has further prayed to stop the construction by respondent no. 9 near Khurpatal lake . 2. Heard learned counsel for the parties, and perused affidavits, counter affidavits, rejoinder affidavits and supplementary affidavits on record. 3. It is pleaded by the petitioner that lake of Khurpatal is situated in District Nainital at an elevation of 1580 mtr., above sea level which has closed basin without any out-let. Respondent no. 9 Army Welfare Housing Organization (for short AWHO) is raising construction, and doing boring activity near Khurpatal lake. It is apprehended by the petitioner that interest of the residents of three 3 villages namely Patikhet, Jogyura and Silmoria is going to be affected if the boring is allowed to be done by AWHO. It is mentioned in the petition that aforesaid villages are at a lower altitude to lake level. It is alleged by the petitioner that the under ground channels of water going towards aforementioned villages may go dry. It is also pleaded in the writ petition that the activity of boring done by AWHO is being conducted without permission granted by Prescribed Authority under U.P. Kumaun and Garhwal Water (Collection, Retention and Distribution) Act, 1975. (For short U.P. Act no. 46 of 1975) 4. Respondent no. 9 has filed a counter affidavit stating that the activity undertaken by AWHO is neither illegal nor dangerous. It is further stated in their counter affidavit that Nainital Lake Development Authority (for short LDA) vide its order dated 06.09.2006 (copy Annex. 1 to said counter affidavit) has allowed the construction activity as per the sanctioned plan of AWHO. Not only this, vide letter dated 12.07.2000, Village Pradhan of village Khurpatal has given her consent regarding drilling of the water by AWHO for the houses of the Army Officers in Village Khurpatal. It 4 is alleged in the counter affidavit filed by AWHO that it is only petitioner's apprehension that depletion of water level would cause water scarcity in villages down the level of Khurpatal. It is also pointed out by respondent no. 9 in their counter affidavit that infact bore-well was already dugged way back on 24.09.2006. It is also pleaded that when all the residents of Khurpatal has a right of drinking water, only the members of AWHO cannot be denied the same. 5. There are affidavits filed by the other respondents which disclose that during pendency of this petition, AWHO has also moved an application on 24.08.2010, before Prescribed Authority under U.P. Act, 46 of 1975, for permission of boring/tapping the water sources. It is admitted to the parties that said application is still pending with said authority. The last and important supplementary counter affidavit is filed by District Magistrate, Nainital, (respondent no. 7) on 28.04.2011. In para 5 of said affidavit following facts are brought on record for consideration of this Court:- “(a) That the land in question which is owned by Army Welfare Housing 5 Organization is recorded in the record of revenue under category 1-A. The said land was found to be purchased from various agriculturists of the area in the year 2000, and after purchase of land the map was got sanctioned by the said society for the construction of residential houses in the area. The map was sanctioned vide order dated 06.09.2006, copy whereof is being filed herewith and marked as Annex. 1 to this affidavit. (b) That the said society also obtained permission under section 143 of U.P.Z.A. & L.R Act, vide order dated 16.08.2000, copy whereof is being filed herewith and marked as Annex. 2 to this affidavit. (c) That in respect to the water facility in the area, the Executing Engineer of Jal Sansthan has informed that the Project Director of Army Welfare Housing Organization in short AWHO) applied vide application dated 23.04.2009, for providing water facility to meet the requirement of water of 91125 litre per day for the said project of construction by AWHO. The Executive Engineer informed 6 to the Project Director vide letter dated 06.05.2009 that for providing water facility for consumption of water 91125 litre per day, which is a huge quantity of water, it requires, construction of a separate project for which the Uttarakhand Pey Jal Nigam is the concerned Agency in this regard. Copy of the application dated 23.04.2009, and letter dated 06.05.2009 are being filed herewith and marked as Annex. Nos. 3 and 4. In this respect the Chief Engineer, Jal Nigam, Nainital informed that amount of Rs. 29.34 lakh has been sanctioned and released by the Special Area Lake Development Authority on 17.08.2009, for providing water facility in the area and after releasing the said amount the project was started to construct, but the villagers of the area raised objections, hence due to said objections; said project could not be continued. Further , Rs. 45 lakh has also been sanctioned against which Rs. 25 lakh has been released under the District Plan Project for constructing Mini Tubewell at Charkhet but again it is submitted that the villagers of the area concerned are restraining the Department by raising objections, as such due to such restraint the project could not be 7 completed. Copy of letter dated 07.04.2011 of Executive Engineer, Mechanical Branch, Uttarakhand Pey Jal Nigam , Haldwani is bieng filed herewith and marked as ANNEXURE NO. 5 to this affidavit. (d) That in respect to the permission u/s 11 of Kumaun and Garhwal Water Retention and Distribution Act, 1975, it is submitted that the order pased by District Magistrate, Nainital in Appeal no. 52/14 year 2005-06 was passed on the Appeal preferred by C.P.W.D., Almora against the order passed by Prescribed Authority/ S.D.M., in case no. 19/2004 year 2005-06 and it has been informed by the Executive Engineer, Jal Nigam and by the C.P.W.D., that boring of tubewell, which has been initiated by the C.P.W.D., has been stopped by C.P.W.D. (e) That the said society i.e. Army Welfare Housing Organization (A.W.H.O.) itself moved and application dated 24.08.2010 before D.M./S.D.M., afresh for seeking permission and on the said application of A.W.H.O., the matter is pending in S.D.M., Court as the A.W.H.O., 8 has not submitted till date the 'no objection' resolution passed by the concerned Gram Panchayat in its opening meeting in respect to the boring of tubewell. (f) That at last in the meeting it has been resolved that matter in question in respect to effect on the level of water in the concerned area, by boring may be verified through some specialized Agency in the field. (g) That in the meeting the Director of AWHO Colonel A.K. Sharma, has suggested that the Army Welfare Housing Organization (A.W.H.O) is willing and ready to hand over the said construction of boring to Uttarakhand Pey Jal Nigam who may supply the water to the members of the Society as well as villagers of the said village. (h) That it is also bring into kind notice of the Hon'ble Court that as per sanctioned map, 81 flats are going to be constructed at the Site by Army Welfare Housing Organization. (i) That the Jal Sansthan has also informed that the water system in the 9 Khurpatal is being managed by Gram Sabha itself under gravitational drinking water scheme and Jal Sansthan has no such scheme in Khurpatal. The said Pey Jal Yojna is named as “EKAL PEY JAL YOJNA” which is managed by the Gram Sabha”. 6. Having considered affidavits filed by the parties, and after going through the papers on record, and further keeping in mind that residents in the quarters of A.W.H.O., have also right of drinking water without affecting the rights of the villagers, we dispose of this writ petition with following directions:- (i) The application dated 27.08.2010, filed by AWHO before the Prescribed Authority shall be disposed of by said authority as expeditiously as possible after hearing all concerned parties including LDA, Uttarkhand Pey Jal Nigam, and Village Pradhans of the concerned authorities. (ii) Once said application is disposed of by the Prescribed Authority, aggrieved party shall have a right to file an appeal before the District Magistrate under section 11 of U.P. Kumaun and Garhwal Water (Collection, Retention and Distribution) Act, 1975, and said authority shall also dispose of the 10 appeal so filed without unreasonable delay after considering submissions of all the concerned parties. (iii) Meanwhile the water shall be supplied to the A.W.H.O., also from the sources from which other residents of village Khurpatal are being supplied the water. (Servesh Kumar Gupta, J.) (Prafulla C. Pant, J.) 20.07.2011 Parul