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2016 Supreme(J&K) 84
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
N. Paul Vasantha Kumar, Tashi Rabstan, JJ.
Balbir Singh and Ors. – Appellants
Vs.
State of J&K and Ors. – Respondents
WPPIL Nos. 19 of 2014, 20 of 2013 and CPPIL Nos. 3 of 2013, 7 of 2013, 4 of 2015
Decided On : 12-02-2016
For the Appellant :Abhinav Sharma, B.R. Manhas, Amil Gupta and M.K. Sharma, Advocates
For the Respondents:Jahangir Iqbal Ganai, Advocate General, Ehsan Mirza, A.A.G.,S.S. Nanda, Sr. A.A.G., D.C. Raina, Sr. Advocate, Anil Verma, Sakal Bhushan, Adarsh Sharma and Sindhu Sharma, Advocates
The main legal point established is that petitioners must exhaust remedies under the Water Resources Act before filing public interest litigations, and the State must frame a Water Policy and Plan for the preservation of water resources.
Headnote:
Water Resources Act - Public Interest Litigation - Section 3, Section 4, Section 172, Section 150, Section 145, Section 146, Section 147
Fact of the Case:
The petitioners sought the implementation of the Jammu & Kashmir Water Resources (Regulation and Management) Act, 2010 to prevent encroachment on water bodies, wetlands, and water courses. They alleged that the State Water Resources Regulatory Authority failed to stop encroachments and illegal constructions, leading to urban flooding and environmental degradation.
Finding of the Court:
The Court found that the State lands, including water bodies and 'khads', were being encroached upon for residential and commercial purposes. It noted the nexus between corrupt officials and land grabbers, leading to false reports and illegal constructions. The Court issued interim directions to stay further construction and sale of such lands.
Issues: The issues involved the illegal encroachment on State lands, the failure of the State Water Resources Regulatory Authority to prevent encroachments, and the alleged connivance of officials with land grabbers.
Ratio Decidendi: The Court held that the petitioners should have approached the competent authority under the Water Resources Act before filing the public interest litigations. It emphasized the need for the State to frame a Water Policy and Plan for the development and preservation of water resources, wetlands, and 'khads'.
Final Decision: The Court disposed of the PILs and contempt petitions, directing the State to frame a Water Policy and Plan within two months and to strictly follow the observations made by the Apex Court and the High Court in similar cases. It maintained the status-quo on the lands and 'khads' until the policy/scheme was framed.
Tashi Rabstan, J.
1. Through the medium of both the Public Interest Litigations, the petitioners are seeking a direction to the respondents to strictly implement the Jammu & Kashmir Water Resources (Regulation and Management) Act, 2010 and prepare State Water Policy and Plan for development, management planning, utilization and monitoring of water resources in the State; thereby demolishing the unauthorized constructions/obstructions made by anybody including removal of encroachment from a Nallah/Stream passing through Sharma Resorts to Haji Basti, Village Sunjwan, Sainik Colony, Jammu and to take appropriate action against the encroachers; to impose complete ban on encroachment of water bodies, wetlands, water courses; to stop flow of waste and toxic water in the River Tawi emanating from the illegal colonies constructed between Sidhra Bridge and Nikki Tawi Bridge and, by issuance of a notification, to declare all the water bodies, wetlands and water courses as property of the Government of J & K in terms of Section 3 of the Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010. Since common question of facts and law are involved in both the public interest litigations, we deem it proper to decide the same by this common judgment.
2. The facts which led to the filing of both the petitions in public interest and as are projected therein are with regard to the conversion of State lands in the shape of flood channels, nallahas, wetlands/marsh lands as also the lands recorded as "Khads" in the revenue record, into residential and commercial land.
3. It is averred that with a view to preserve and safety of water bodies, wetlands, water courses, drainage, lakes and springs as well as State land in the shape of "Khads", from being encroached by anti-social elements/land mafia/builders, the Jammu & Kashmir State Legislature enacted Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010 (hereinafter for short, J & K Water Resources Act) and it was to be regulated by the J & K State Water Resources Regulatory Authority. The object behind enactment of such an Act was with regard to the use of water, the measurement, construction, control and management of works with respect to water storage, conservation & protection, irrigation, water supply, drainage, flood control & prevention, improvement in the flow of water, protection & improvement in the physical integrity of water courses, lakes & springs etc. It is averred that one of the objectives of enactment of the Act as defined under Clause (zw) of Section 4 is imposition of complete ban on encroachment of water bodies, wetlands, water courses, and reclamation of such water bodies, wetlands and water courses. It is contended that even after the enactment of J & K Water Resources Act, the State Water Resources Regulatory Authority has not been stopping the encroachments of such lands nor any action as contemplated under the aforesaid Act is being taken.
4. It is contended that the petitioners have been compelled to file the present Public Interest Litigations owing to the fact that the J & K State Water Resources Regulatory Authority has completely failed in discharging its functions as discussed herein-in-above and as defined in the J & K Water Resources Act, rather various anti-social elements, land mafia and builders in active connivance with the officers/officials of concerned departments have been indulging in encroaching upon, grabbing and converting these very wetlands, nallahas, khads into lands for residential and commercial purposes by raising obstruction the free flow of natural water paths/courses, thereby changing the land use by fraudulent means. One such example cited by the petitioner in WPPIL No. 19/2014 is with regard to the land measuring 35 kanals, falling under Khasra No. 773, situated in Village Sunjwan, Jammu, recorded as 'khad' in the revenue record, which as per petitioner has been encroached upon by some anti-social elemen
