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2022 Supreme(HP) 497
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
TARLOK SINGH CHAUHAN, VIRENDER SINGH, JJ.
Ramesh Verma Son Sh. Ramanand Verma - Appellant
Versus
State Of Himachal Pradesh - Respondent
Civil Writ Petition No.5153 of 2022
Decided on : 22-09-2022
For the Appellant :SH. B.C. NEGI, SH. NITIN THAKUR AND SH. RAJAT AWASTHY, ADVOCATES
For the Respondent:SH. ASHOK SHARMA, SH. RAJINDER DOGRA, SH. SHIV PAL MANHANS, SH. BHUPINDER THAKUR, AND SH. RAJAT CHAUHAN, SH. SUNIL MOHAN GOEL, ADVOCATE
The main legal point established in the judgment is the mandatory requirement of publishing a notice of the application for permit in two leading daily newspapers as prescribed by Rule 17 of the Himachal Pradesh Ground Water Rules 2007, and the importance of fair and transparent procedures in the allocation of ground water resources.
Headnote:
Ground Water - Himachal Pradesh Ground Water Act 2005 - Section 3, Section 7, Section 11, Section 27 - The court discussed the provisions of the Himachal Pradesh Ground Water Act 2005, particularly focusing on the regulation and control of ground water extraction, the duties of the Himachal Pradesh Ground Water Authority, and the conditions for granting permits under Section 7. The court emphasized the need for scientific management, conservation, and regulatory mechanisms for ground water extraction, and highlighted the obligation to regulate and control the development and management of ground water. The court also emphasized the importance of fair and transparent procedures in the allocation of ground water resources.
Fact of the Case:
The petitioners filed a petition challenging the grant of permit for extraction and augmentation of ground water to respondent No.3, alleging non-compliance with the provisions of the Himachal Pradesh Ground Water Act 2005 and the Rules. The respondents contested the petition, claiming that the permit was granted in accordance with the Act.
Finding of the Court:
The court found that the official-respondents did not comply with the mandatory requirement of publishing a notice of the application for permit in two leading daily newspapers as prescribed by Rule 17 of the Himachal Pradesh Ground Water Rules 2007. The court held that the failure to follow this procedure rendered the grant of permit illegal and quashed the permission and permit issued to respondent No.3.
Issues: The main issue was whether the grant of permit for ground water extraction to respondent No.3 was in compliance with the provisions of the Himachal Pradesh Ground Water Act 2005 and the Rules.
Ratio Decidendi: The court held that the publication of notice of application for permission under Rule 17(a) is mandatory and a sine-qua-non before granting a permit for extraction and use of ground water. The court also emphasized the need for fair and transparent procedures in the allocation of ground water resources.
Final Decision: The court allowed the petition, quashed the permission and permit granted to respondent No.3, and directed the official-respondents to process the application filed by respondent No.3 in accordance with the Act and Rules.
ORDER :
The instant petition has been filed for grant of the following substantive reliefs:-
“I. Issue a writ of Certiorari thereby quashing and setting aside the Annexure P-4 vide which permission to Respondent No.3 has been given by Respondent No.2; or/and
II. Issue a writ of mandamus directing the respondents not to give effect to Annexure P-4 vide which permission to Respondent No.3 has been given by Respondent No.2; or/and
III. Issue a writ of certiorari thereby quashing and setting aside the Annexure P-3 vide which the Respondent No.2 considered the application of Respondent No.3 in malafide and arbitrary manner in minutes of 42nd meeting; or/and
IV. Issue a writ of mandamus directing the respondents not to give effect to Annexure P-3 vide which the Respondent No.2 considered the application of respondent No.3 in malafide and arbitrary manner in minutes of 42nd meeting; or/and
V. Directing Respondent No.1 to take action against the Respondent No.2 as the Respondent No.2 has not complied with the provision of the Himachal Pradesh Ground Water Act 2005 in right and legal manner.”
2. This Court at an early occasion dealt with an issue of ground water in CWP No. 1809/2018 in case titled Sh. Chetan Kumar and others versus The Chief Secretary to the Government of Himachal Pradesh and others, decided on 22.10.2018, wherein in paragraphs 4 to 15, it was observed as under:-
“4. As noticed at the outset, the petitioners are also residents of village Sanawar and since the 5th respondent did not grant them any water connection as per clause (f) of the permission letter dated 26th February, 2014, as well as allegedly to other residents of the village also, the petitioners have initiated the instant proceedings.
5. The 2005 Act has been enacted with the object to regulate and control the development and management of ground water and matters connected therewith. Section 3 thereof enables the State Government to constitute the Himachal Pradesh Ground Water Authority to perform the duties as enumerated under Section 5 and other provisions of the Act. The Authority has got a mandate under Section 6 of the Act to maintain and update the database on ground water resources of the State. Section 7 of the Act provides that any user of ground water desiring to sink a well within the notified area shall have to apply alongwith prescribed fee to the Authority for grant of a permit and such applicant shall not proceed with any other activity connected with sinking unless a permit has been granted. Sub Section 3 mandates that the Authority shall satisfy itself before granting the permission and such permission may be granted “subject to such conditions and restrictions, as may be specified.” The Authority while granting or refusing permission shall have regard to the objects mentioned in sub section (5) of Section 7 of the Act.
6. As has been noticed earlier, order dated 26th February, 2014 was passed granting permission to respondent No.5 to drill one tube well in purported exercise of powers under Section 7(3) of the Act and while doing so, the Authority imposed the conditions ‘a to f’ mentioned in the said order. The alleged deviation or non compliance of condition (f) has prompted the petitioners to approach this Court.
7. It is not necessary to refer to the reply(s)/written statement(s) filed on behalf of the respondents and suffice it would be to notice that in deference to the order dated 13th August 2018 passed by this Court, Chief Secretary, Government of Himachal Pradesh has filed an affidavit dated 7.9.2018, relevant part whereof reads as follows:-
“In this respect, it is submitted that the permission to sink a bore well was given to the private respondent No. 5 & 6 with the condition, amongst others, that they shall provide one water connections to the residents of village Sanwara for drinking purpose, which has been done only for limited persons with whom they have entered into an agreement. Besides, they have also not fulfilled the other condi
