CWP No. 777 of 2003. Case: Bhakra Beas Management Board, (A board Constituted under Punjab Reorganisation Act, 1966) (Central Act of 1966) having its Head office at Sector 19-B, Madhya Marg, Chandigarh through its Secretary Vs State Pradesh State Environment Protection and Pollution Control Board, Paryavaran Bhawan, Phase-III, Shimla (H.P.), State of Himachal Pradesh, through Secretary (Science and Technology) to the Government of H.P., Union of India through its Secretary Ministry of Enviornment and Forest, C.G.O. Complex, New Delhi - 110003 and Central Pollution Control Board, through its Member Secretary, East Arjan Nagar, Delhi - 110032. Himachal Pradesh High Court
| Case Number | CWP No. 777 of 2003 |
| Counsel | For Appellant: Mr. Kailash Vasdev and Mr. N.K. Sood, Sr. Advocates with Mr. Abhinav Agnihotri and Mr. Aman Sood, Advocate and For Respondents: Mr. Tara Singh Chauhan, Advocate and Mr. Vivek Thakur, Addl. A.G. & Mr. Rajesh Mandhotra, Dy. A.G. |
| Judges | Deepak Gupta and Sanjay Karol, JJ. |
| Issue | Air (Prevention and Control of Pollution) Act, 1981 - Section 3; Code of Criminal Procedure, 1973 - Section 197; Constitution of India - Articles 132, 133, 134, 135, 136, 14, 141, 257; Punjab Reorganisation Act, 1966 - Sections 79, 80(6); Water (Prevention and Control of Pollution) Act, 1974 - Sections 2, 2(k), 24, 25, 26, 27, 25(3), 25(8), 3, 30 |
| Judgement Date | August 31, 2012 |
| Court | Himachal Pradesh High Court |
Judgment:
Deepak Gupta, J.
1. The petitioner i.e. Bhakra Beas Management Board (hereinafter referred to as the BBMB) has been created under the provisions of the Punjab Reorganisation Act, 1966 (hereinafter referred to as the Act). To understand the background of the dispute it would be pertinent to refer to some historical background. The territories of the erstwhile State of Punjab and the erstwhile union territory of Himachal Pradesh were reorganized by the Punjab Reorganisation Act, 1966. A new State of Haryana was created and certain hilly areas of the erstwhile State of Punjab were transferred to the Union Territory of Himachal Pradesh. A Union Territory Chandigarh was also created by the said Act and the remaining territories were to form the new State of Punjab. The State of Punjab derived its name from the five rivers i.e. Satluj, Beas, Ravi, Chenab and Jhelum. The Bhakra dam described by the first Prime Minister of the country Pt. Jawaharlal Nehru as one of the temples of modern India had been set up prior to the reorganisation of the State. Alongwith this dam there were many other associated projects. Some of these projects would now fall in the area of the Union Territory of Himachal Pradesh. The States of Haryana and Rajasthan being the riparian States were entitled to some of the benefits arising out of these projects.
2. Therefore, under Section 79 of the Act, the Bhakra Management Board (BMB) was constituted for the administration, maintenance and operation of the projects described therein. BMB was to consist of a whole time Chairman and two whole time members to be appointed by the Central Government. Representatives each of the Government of Punjab, Haryana, Rajasthan and Himachal Pradesh were also to be appointed. Thus it was a multi member body where representatives of all the beneficiary States were represented and the funding of the BMB was also to be shared by all the States. The Board, however, was to be under the control of the Central Government.
3. The Bhakra dam had been set up on the Satluj river. However, at the time when this Act was enacted there was already a proposal to link the waters of Beas with the Satluj and this was known as the Beas-Satluj Link Project. Under this project a dam was constructed across the river Beas at Pandoh. The waters of the Beas were diverted through a tunnel known as the Pandoh-Baggi tunnel and taken from Baggi to Sundernagar by an open channel known as Baggi-Sundernagar Hydel Channel. At Sundernagar a balancing reservoir was constructed and thereafter there was a tunnel leading from Sundernagar to Dehar where the power house plant was erected on the right bank of the Satluj river. The construction of this Beas project was to be undertaken by the Central Government on behalf of all the successor States and the State of Rajasthan. It was further provided under Section 80(6) of the Act that after the Beas project is completed the same was to be transferred to the Bhakra Management Board which would thereafter be renamed as Bhakra Beas Management Board i.e. BBMB.
4. The whole dispute in this case revolves around the disposal and management of silt, which gets accumulated in the Baggi-Sundernagar Hydel Channel and the balancing reservoir at Sundernagar. The contention of the respondent-Himachal Pradesh State Environment Protection and Pollution Control Board (hereinafter referred to as the Pollution Control Board) is that under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the Water Act) the BBMB is causing pollution and contamination of water and is violating the provisions of Section 24 of the Water Act and therefore, requires consent of the Pollution Control Board to discharge silt. It is further averred that it is the duty of the BBMB to ensure that the pollution is managed in a proper manner. On 18.08.1993 the Pollution Control Board called upon the petitioner to apply for consent under Sections 25 and 26 of the Water Act. The BBMB did not agree to this proposal of the Pollution Control Board and the stand of the petitioner was that it was not obliged to apply for consent. It was contended that the provisions of Section 25 did not apply to the BBMB as it was not discharging any trade effluent into any river or stream or causing any pollution.
5. In June, 2002 the Pollution Control Board filed a complaint against the Chairman and Chief Engineer of the petitioner alleging violation of various provisions of the Water Act. This complaint was filed before the Chief Judicial Magistrate, Sundernagar, who issued orders summoning the Chairman and Chief Engineer of the BBMB. This order was challenged by the BBMB by filing Cr.M.M.O No. 42 of 2002 in this Court and finally a learned Single Judge of this Court on 21.12.2004 came to the conclusion that dredging of silt from Beas river and balancing reservoir and its ejection into Suketi Khad does not fall within the meaning of polluting matter or trade effluent. The respondent-Pollution Control Board challenged this judgement before the Apex Court, which dismissed the Special Leave Petition in the following terms:-
We agree with the finding recorded by the High Court that on a reading of the complaint, no prima facie case is made out.
The Special Leave Petition is dismissed.
However, on the facts of this case, the question regarding applicability of Section 197 Cr.P.C. is left open.
6. In the present petition, the petitioner has prayed for the grant of the following reliefs:-
(a) Issue a writ or writ in the nature of certiorari or such other similar or other writs as this Hon'ble Court may consider appropriate to quash all the proceedings and actions initiated or purported to be initiated by the Pollution Control Board vide communications from respondents under Annexure B collectively and finally culminating into rejection of the petitioners representation by impugned letters dated 1.9.2003 and 11.9.2003, Annexure D and Annexure E, respectively.
(b) Issue a writ or writ in the nature of mandamus or such other writ, order or direction restraining the Pollution Control Board and its officers and employees from taking any action against the petitioner or its Chairman, officers or employees under Sections 24 or 25 or 26 of the Water Act by declaring that the petitioner is not discharging any polluting matter or any trade or any sewage effluent in the activities being carried on by the petitioner in Bhakra and Beas Projects.
7. On 8.3.2004 a detailed order was passed in this petition. The scope and ambit of the petition was widened. The relevant portion of the order reads as follows:-
The issue involved in this case primarily relates to the de-silting of the reservoir(s) and the disposal of the silt which comes out of and from the de-silting process. The petitioner is not a private entrepreneur engaged in profit making; the petitioner is a wholly owned government organisation engaged in the generation of hydro electric power. Similarly respondents No. 1 and 2 being the State and the Instrumentality of the State, are also responsible to ensure that neither water, nor any type of air pollution is caused by the disposal of the silt and in such a manner as would be hazardous to public interest.
Based on aforesaid observation, we are convinced that the issues involved in this petition are of vital public importance and, therefore, we think that this petition can be treated, apart from and in addition to the adversarial disputes involved herein, as a public interest litigation.
In our considered opinion, we feel that the issues involved herein can be amicably settled and resolved in an atmosphere of bonhomie, all sides appreciating the points involved and in the spirit of proper and mutual understanding. However, we feel that in the facts and circumstances of this case and also because of some intricate technical questions and issues raised, assistance from the Central Pollution Control Board constituted under Section 3 of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 3 of the Air (Prevention and Control of Pollution) Act, 1981 and the Union of India through Ministry of Environment and Forest would be of paramount importance and of special significance. We accordingly direct that the Union of India through Secretary, Ministry of Environment and Forests as well as the Central Pollution Control Board, both be impleaded as respondents No. 3 and 4 respectively in this petition.
8. Thereafter, the Director, Control of Pollution Division, Ministry of Environment and Forest, Govt. of India and Additional Director of Central Pollution Control Board were summoned in Court and they were asked to look into the matter. The Central Pollution Control Board constituted an expert committee to suggest an action plan for management of silt and other environment related issues with respect to the hydel projects managed by the BBMB. The expert committee submitted its interim report which was accepted by all the parties. Therefore, on 25.5.2004 this Court ordered that the interim report of the expert committee be implemented in letter and spirit. The relevant portion of the order of the Court read as follows:-
The interim report submitted by the Expert Committee has been accepted by all the parties, including the petitioner Bhakra Beas Management Board. We accordingly, in the facts and circumstances of this case, direct that the interim report of the Expert Committee be implemented by all the parties in letter and spirit. The petitioner Bhakra Beas Management Board shall comply with the suggestions/recommendations in para 10-A, B and C of the interim report, read with Para 6 of the affidavit of the Senior Environment Engineer filed today in the Court.
Problem of silting is being aggravated by unscientific, indiscriminate and illegal mining of the river beds/khads and Nalas. We are informed that pursuant to the directions of this Court...
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