Shimla, June 1
In a landmark order passed by Division Bench of Justice Tarlok Singh Chauhan and Justice Chander Bhushan Barowalia ruled today that any water resources including water bodies belong to the state. The court stated that no individual could own and encroach such natural resources despite the fact that it may be located in the individual’s land or property.
Passing a 11 paged order in a Public interest litigation here today, the bench held that they were informed at the Bar that the number of natural resources have been tapped by the individual(s)
without any right ostensibly for the reasons that such water resources are located in their property, which is clearly a misconception as it is more than settled that water is the property of the State and no individual(s) whosoever, has any right to claim this property even though situated within his
property. “If the officials are inactive and insensitive towards the encroachments in public land and water bodies, it would amount to infringing the constitutional rights of other citizens, who are residing in the nearby places from water bodies, as the same would affect other citizens to get sufficient water. ” the bench said.
Court said that infringement amounts to violation of constitutional rights ensured to all other citizens. “It is the duty of the State to preserve the water bodies and prevent ecological imbalances. Such being the constitutional perspectives and duty of the State, the authorities are bound to act in respect of all such encroachments. ” the bench said. Court ordered that the State holds all the water bodies in public trust for the welfare of this generation and of all the succeeding generations and, therefore, protecting water bodies must be given as much weightage, if not more as allowing house-sites or other buildings to come up on such tanks poramboke lands, and water charged lands.
The order said that there could not be any two opinions that natural resources are the assets of the Nation and its citizens and it is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48A of 15 of the Constitution requires that the State should endeavour to protect and improve the environment and safeguard the forests and wildlife of the country. Similarly, Article 51A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for all the living
creatures. In view of the constitutional provisions, the doctrine of public trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, water and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership. It also held that encroachments are infringing the rights of all other citizens. The constitutional rights of all other citizens in respect of the public properties could not be taken away by few individuals on account of their greediness. Encroachment of land occurs on account of greediness. Courts could never encourage the actions of such greedy men in respect of their encroachment of the public land, water bodies and water resources. It is a growing trend across the Sate that few greedy men, land grabbers and land mafias are encroaching the public property, water bodies and water resources and obstructing the development of our great Nation. On account of large scale encroachments, the developmental activities of the Sate is being paralyzed. “State” is bound to act vigilantly
and no leniency can be shown in respect of the encroachers.
“There cannot be any leniency or misplaced sympathy in respect of the encroachers. Any lapse in this regard on the part of the authorities are also must be viewed seriously,” stated the bench. The
authorities committing lapses, negligence or dereliction of duty by way of any omission or commission, must be taken note of and suitable prosecution and appropriate disciplinary
actions are also to be initiated against all such officials, who all are responsible for committing an act of negligence or dereliction of duty.
“We reiterate that natural resources including forests,/water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations, ” the court added. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot tranfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court could invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystem. Court said that Municipal Corporation Shimla is directed to identify all such water resources and ensure that the same are not illegally tapped, utilised by any individual(s). The Municipal Corporation shall further submit that a detailed road map as to how it proposes to utilize these natural resources, especially, when by utilising the amount that has been received under Smart City Project.
Bench took cognizance of unhygienic toilets and public places
The bench held that whole of the Shimla town is stinking and the major cause for such stink is dirty and unhygienic toilets as also the sewerage and sullage that is being discharged by the trucks carrying municipal waste. Court also directed Corporation to take immediate remedial measures.
The bench also took notice of the pets owner getting their pets on the Mall, Ridge and other public places to defecate. “This is in violation of the provisions of the HPMC Act, 1994 and Bye Laws framed thereunder. The respondent-Corporation is directed to constitute a squad to ensure the enforcement of Section 304 of the the HPMC Act, 1994 and such squad should conduct inspection between 6 to 9 am and ensure that the pets of the towns are not permitted to defecate in the public places by their owners and attendants. Court fix this matter for compliance to come up on June 22, 2022, when fresh status report be filed by respondents state and MC.