ITEM NO.101                 COURT NO.11               SECTION PIL

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS

WRIT PETITION (CIVIL) NO(s). 230 OF 2001

M.K. BALAKRISHNAN & ORS.                             Petitioner(s)

                     VERSUS

UNION OF INDIA & ORS.                                Respondent(s)

(With appln(s) for ad-interim ex-parte stay,impleadment as party respondent)

Date: 26/03/2009  This Petition was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE MARKANDEY KATJU         HON'BLE MR. JUSTICE B. SUDERSHAN REDDY

For Petitioner(s) Mr. Gopal Sankaranarayanan, Adv. Mr.Radhakrishna Kumar, Adv. Mr. Parmanand Pandey, Adv.for

                    Mr. Naresh Kumar,Adv.

For Respondent(s) Mr. S.R.Singh, Sr. Adv. Mr. Shail Kumar Dwivedi,AAG Mr. Anuvrat Sharma, Adv. Ms. Alka Sinha, Adv.

Mr. T.S.Doabia, Sr. Adv. Ms. Sunita Sharma, Adv.for

                    Mr. B.V. Balaram Das,Adv.

Mr. Riku Sarma, Adv.for M/s. Corporate Law Group

Mr. Avijit Bhattacharjee, Adv. Mr. Saumya Kundu, Adv.

Ms. Kamini Jaiswal, Adv.

Ms. Pinky Behera, Adv.for

Ms. Hemantika Wahi, Adv.

Mr. Radha Shyam Jena, Adv.

Mr. Naresh K. Sharma, Adv.

Mrs. Aruna Mathur, Adv. Mr. Vimal Dubay, Adv.for M/s. Arputham Aruna & Co,

Mr. Khwairakpam Nobin Singh, Adv.

For State of Bihar & Ms. Sangitaa Singh, Adv. Tripura Mr. Manish Kumar, Adv.for

Mr. Gopal Singh, Adv.

Mr. B.S.Banthia, Adv.

Mr. Manish Singhvi, AAG Mr. Milind Kumar, Adv.

Mr. R.S.Suri, Adv.

Mr. Ranjan Mukherjee, Adv.

Ms.Sumita Hazarika, Adv.

Mr. R.Ayyam Perumal, Adv.

Mr. Anil Shrivastav, Adv.

Mr. K.N.Madhusoodhanan, Adv.for Mr. M.K.Michael, Adv.

Mr. R.Nedumaran, Adv.

Mr. R.Shunmugasundaram, Sr. Adv. Mr. V.G.Pragasam, Adv. Mr. S.J.Aristotle, Adv. Mr. Prabu Rama Subramanian, Adv.

Mr. P.V.Dinesh, Adv. Ms. Sindhu T.P., Adv.

Mr.Tabrez Ahmad, Adv.for                  Mr. Anis Suhrawardy ,Adv.

Mr. Anil Kumar Jha, Adv.

Mr. Sanjay R.Hegde, Adv. Mr. A.Rohen Singh, Adv.

Mr. Edward Belho, Adv. Mr. Rituraj Biswas, Adv. Mr. P.Athuimei R. Naga, Adv.

Ms. A.Subhashini, Adv.

Mr. Manoj Saxena, Adv. Mr. Rajnish K. Singh, Adv. Mr. Rahul Shukla, Adv.  

Mr. Sanjay V.Kharde, Adv.for Ms. Asha G.Nair, Adv.

Mr. R.Shunmugh Sundram, Sr. Adv. Mr. T.Harish Kumar, Adv.

Mr. Manjit Singh, AAG Mr. Harikesh Singh, Adv.for Mr. Kamal Mohan Gupta, Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

Let notice be issued to the Secretary, Ministry of Science and Technology, Union of India which will file its counter affidavit within four weeks stating that what measures are being taken to solve the water shortage problem in the country and  for  implementing  the  recommendation  of  Hon'ble  Mr.  Justice  Markandey Katju  in  the  decision  of  State  of  Orissa  vs.  Government  of  India  &  Another reported in JT 2009 (2) SCC 233.

The application for impleadment is allowed. Let notice issue to the newly added States.

List this matter on 28th April, 2009.

(Parveen Kr. Chawla) Court Master

(Indu Satija) Court Master

[Signed Order is placed on the File]

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION(CIVIL) NO.230 OF 2001   

M.K.Balakrishnan & Others ..Petitioners

versus

Union of India & Others ..Respondents

O R D E R

Heard learned counsel for the parties.

Pursuant  to  this  Court's  order  dated  26th February,  2009,  the  Chief

Secretaries,  State  of  Haryana  and  Uttar  Pradesh  are  personally  present  in  the

Court. Their personal presence is dispensed with unless directed in future.

The present Writ Petition under Article 32 of the Constitituion of India

relates to  conservation  of  wet  lands which  in  our opinion  would include ponds,

tanks,  canals,  creeks,  water  channels,  reservoirs,  rivers,  streams  and  lakes.

Although,  the  writ  petition  as  framed  related  to  protection  of  wetlands  in  the

country for preservation of the environment and maintaining the ecology, we have

suo motu expanded its scope as mentioned below.  

There is  acute  shortage  of water in  our country and one  of  the  main

reasons for that is that most of the water  

-2-

conservation bodies in our country such as ponds, tanks, small lakes etc. have been

filled up in recent times by some greedy persons and such persons have constructed

buildings, shops etc. on the same.

Our ancestors were wise people who realised that because of droughts or

some other reasons there may be shortage of water in future and hence they made

the provision of a pond near every village,  tanks in or near temples, etc..  The whole

idea behind this was that whenever there is a shortage of water due to drought etc.,

people may not suffer and they may use the water available in ponds, tanks etc.

Unfortunately, people have forgotten the wisdom of our ancestors and that is why

some greedy people for their personal interest and to make money have filled up

most of these ponds,  tanks etc.  and have constructed buildings thereon with the

result that in most parts of India, there is a terrible water shortage and people are

suffering terribly, particularly, in the summer season both in rural and urban areas.

When water is not available, people come to the streets and there are chakka jams

(road  blocks),  riots  etc.  to  awaken  the  government  authorities  to  take  some

measures to make available the necessity of life to the general public called water.  

In many cities, in many colonies, people get water  

-3-

for half an hour in a day and sometimes not even that e.g. in Delhi, Tamil Nadu,

Rajasthan, U.P., Northeast etc.  In large parts of rural areas there is a shortage of

water for irrigation and drinking purpose.  Rivers in India are drying up, ground

water is being rapidly depleted and canals are polluted.  The Yamuna in Delhi looks

like a black drain.  Several perennial rivers like the Ganga and Bahamputra are

rapidly becoming seasonal.  Rivers are dying or declining, and acquifers are getting

over-pumped.  Industries, hotels, etc. are pumping out groundwater at an alarming

rate, causing sharp decline in the groundwater levels. Farmers are having a hard

time finding ground water for their crops e.g. in Punjab. In many places there are

serpentine queues of exhausted housewives waiting for hours to fill their buckets of

water.  In this connection, John Briscoe has authored a detailed World Bank report,

in which he has mentioned that despite this alarming situation there is widespread

complacency on the part of the authorities in India.

This Court in State of Orissa vs. Government of India & Another, JT 2009

(2) SC 233, in which one of us [Hon'ble Mr. Justice Markandey Katju] was a member,

while agreeing fully with the reasoning and directions of the other Hon'ble Judge on

the Bench Hon'ble Altamas Kabir, J., has recommended to the Central Government

to immediately  

-4-

constitute a body of eminent scientists in the field who should be requested to do

scientific research in this area on a war footing to find out scientific ways and means

of solving the water shortage problem in the country.  It was also recommended that

the said body shall be given all the financial, technical and administrative help by

the Central and State Governments for this purpose.  The help and advice of foreign

scientific experts and/or Indian scientists settled abroad who are specialized in this

field may also be taken, since the solution to the problem will not only help India

but also foreign countries which are facing the same problem, some of which may

already have progressed significantly in this area. The present known methods e.g.

distillation  or  reverse osmosis  are very expensive.  We have  to  find out  cheaper

methods and this is possible only by scientific research on a war footing. The said

body of scientists was requested to, inter alia, perform the following tasks:

(i) to find out an inexpensive method or methods of converting saline water into fresh water.    

(ii)to find out an inexpensive and practical method of utilizing the water, which is in the form of ice, in the Himalayas.

(iii)to find out a viable method of utilizing rain water. (iv)to utilize the flood water by harnessing the rivers so that

the  excess  water  in  the  floods,  may  instead  of  causing damage, be  

-5-

utilized for the people who are short of water, or be stored in reservoirs for use when there is drought.

In the said decision the Court also observed:

“42.  It is indeed sad that a country like India which solved the problem of town  planning 6000 years ago in the Indus Valley Civilization  and  which  discovered   the  decimal  system  in Mathematics and Plastic Surgery in Medicine in ancient times, and  is  largely managing  Silicon  Valley  in  U.S.A.  today  has been unable to solve the problem of water shortage till now.  In my opinion there is no dearth of eminent scientists in the field who can solve this problem, but they have not been organized and brought together and not been requested by the Central and State Governments to  solve this  problem, nor given the facilities for this.

43.In my opinion the right to get water is a part of right to life guaranteed  by  Article  21  of  the  Constitution.  In  this connection,  it  has  been  observed  in  Delhi  Water  Supply  & Sewage Disposal Undertaking and Anr. vs. State of Haryana and Ors. [JT 1996 (6) SC 107; 1996 (2) SCC 572]:

“Water is a gift of nature.  Human hand cannot be permitted to convert this  bounty  into  a curse,  an

oppression.  The primary use to which water is put being drinking, it would be mocking nature to force the people who live on the bank of a river to remain thirsty”.....

44. Similarly in Chameli Singh & Ors. v. State of U.P. & Ors. [JT 1995 (9) SC 380: 1996 (2) SCC 549] this Court observed:

“.....Right to live guaranteed in any civilized society implies  the  right  to  food,  water,  decent environment,  

-6-

education,  medical  care  and  shelter.   These  are basic human rights known to any civilized society. All  civil,  political,  social  and  cultural  rights enshrined in  the  Universal Declaration of Human Rights and Convention or under the Constitution of India  cannot  be  exercised  without  these  basic human rights”.....

In Hinch Lal Tiwari vs. Kamala Devi,  AIR 2001 S.C.  3215, this Court

observed (vide paragraphs 13 and 14):

“13.  It  is  important  to  note  that  material  resources  of  the community  like forests,  tanks,  ponds,  hillock,  mountain  etc. are  nature's  bounty.   They  maintain  delicate  ecological balance. They need to be protected for a proper and healthy environment which enable people to enjoy a quality life which is  essence  of  the  guaranteed  right  under  Article  21  of  the Constitution. The Government, including revenue authorities, i.e. respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which  would,  on  one  hand,  have  prevented  ecological disaster and on the other provided better environment for the benefit  of public  at  large.   Such vigil  is  the  best  protection against knavish attempts to seek allotment in non-abadi sites.

14.For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated February 25, 1999 confirmed by the Commissioner on March  12,  1999.   Consequently,  respondents  1  to  10  shall vacate the land, which was allotted to them, within six months from today.  they will, however, be permitted to take away the

material of the houses which they have constructed on the said land. If respondents 1 to 10 do not vacate the land within the  

-7-

said period the official respondents i.e.  respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law.  The State including respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the best interest of the villagers. Further it will also help in maintaining ecological  balance  and  protecting  environment  in  regard to which this Court has repeatedly expressed its concern.  Such measures must  begun at the grass-root level if  they were to become the nation's pride.”      

Let notice be issued to the Secretary, Ministry of Science and Technology,

Union of India which will file its counter affidavit within four weeks stating what

measures are being taken to solve the water shortage problem in the country and for

implementing the recommendation of Hon'ble Markandey Katju, J. in the aforesaid

decision in State of Orissa vs. Government of India & Another, JT 2009 (2) SC 233.

The application for impleadment is allowed.  Let notice issue to the newly

added States.

List this matter on 28th April, 2009.

........................J. [MARKANDEY KATJU]

NEW DELHI; ........................J. MARCH 26, 2009. [B.SUDERSHAN REDDY]