IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(P.I.L.) No. 4663 of 2009
Hemendra Pratap Dehati ... ... Petitioner
Versus
The State of Jharkhand & Ors. ... ... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE H.C. MISHRA
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For the Petitioner : Mr. Mahesh Tewari
For the State : J.C to A.G
For the Union of India: Mr. Mokhtar Khan, ASGI
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Order No. 07 Dated: 19th of May, 2011.
Heard learned counsel for the parties.
We are constrained to observe that the Principal Secretary,
Water Resources Department, Government of Jharkhand and
Principal Secretary, Water Resources Department, Chhatisgarh,
failed to comply with the order dated 6th May, 2011 in its true spirit
rather to say they acted against the order dated 6th May, 2011
which is apparent from their report dated 12th May, 2011 submitted
alongwith the affidavit dated 16th May, 2011.
We are again constraint to observe that a plan to construct
the Dam was conceived in the year 1974 over the river Kanhar and
the process of survey for the purpose of taking a final decision is
going on for the last more than 36 years. The decision to construct
a dam on the river was of the Government and not of the public.
Need was felt in the year 1974 for construction of a dam over the
river. Only thing done was that the monetary benefit was given to
the employees and officers of the Government appointed by the
Government since 1974. Every year millions of rupees were spent
only on account of salary and allowances and by the year 2008
total Rs.10,49,73,588.40 were spent. As per the report given by the
concerned Executive Engineer (Schedule-Kha, page-30) of the
paper book the details of the expenditure incurred from 1977 to
2008 were not fully available and total amount spent for survey,
research, drilling etc. is of Rs.149.254 lakhs.
In the year 2007 for finding out feasibility for construction of
the Barrage over the same river a committee consisting of 23
persons was constituted which includes the officers of the level of
Chief Engineer, Junior Engineers and thereby the officers
generated the post for themselves. In the said order of constitution
of committee dated 8th June, 2007 it has been ordered that the
department will complete the survey etc. by 30th June, 2007 and will
submit the complete project report by 31st August, 2007 and
forward it to the Central Water Resources Department of the
Government of India, New Delhi and it was ordered that for
obtaining the sanction for the project the Chairman of the said
committee shall remain at Delhi by holding its camp so that the
sanction may be obtained by 30th September, 2007 and it was
projected that by this way they will be able to not only complete
survey etc. but will complete the entire construction of the Barrage
within that financial year obviously by 31st March, 2008 only.
We are taking the facts of the year 2007 in this order
because of the reason that sufficient material is not available with
us that what happened from 1974 or at least 1977 till 2007.
Whether in that period all the officers remained silent spectators
sitting in the office and therefore, in the year 2007 a decision was
taken to construct a Barrage in such manner that committee was
constituted by order dated 8th June, 2007 and was directed to
complete all survey etc. and prepare the entire project report and
obtain the sanction of the Central Government by 30th September
2007 and the project was so small that it could have been
constructed within a period of about six months only and if that was
the position then how the decades were wasted of the public
interest.
It appears that one public person undertook fast unto death
upon which the Hon'ble Chief Minister of the State had to pass an
order because of the pressure of the public and pressure generated
by Hon'ble the Chief Minister by directing to complete the survey by
31st August, 2007 and there was direction to remain sitting at Delhi
for obtaining the sanction of the Central Government, the officers
took the decision and constituted the committee which is apparent
from Annexure-4 as annexed with the writ petition at page 33. This
indicated how to befool the public, decision can be taken with the
connivance of all who are on the helms of affairs of the policy and
are called bureaucrats and executives and since because there
was pressure they decided to do the job of such extent in the period
of nine months. Then there is a detailed project report annexed with
the writ petition from page 40 to page 73. It appears that a copy of
this report has been supplied to the Shri Hemendra Pratap Dehati,
former M.L.A. under the Right to Information Act vide
communication dated 23rd June, 2009.
We perused the detailed report. It appears to be for
construction of the Barrage instead of Dam wherein various
aspects have been examined in detail. There is one more project
report "Kanhar Jalashay Yojna" copy of which has been placed on
record starting from page 36. In this report several issues were
raised and those were raised on 20th December, 2006. Then there
is one more report starting from page 120 wherein this project has
been named as Kanhar Reservoir Project. In this report it was
requested that project will be moved to the Government of India
and the Planning Commission for obtaining sanction as early as
possible and year wise financial burden has also been given out
and interestingly it was projected that work can be completed from
1976-1983 with a total cost of Rs.101 crores and as per the
endorsement on this report they are thinking for sending a proposal
for sanction from appropriate department of the Government.
There is one another document on record dated 24th May, 1988 by
which even amount of Rs.335 lakhs were sanction by the
Government. There are many material correspondences which
have been placed on record by the petitioner by making his own
efforts which includes another document and communication sent
by the Secretary, Water Resources Department, Government of
Chhatisgarh, Water Resources Deptt. Raipur, requesting for
reducing the reservoir level. We need not give more details of
above all things and alleged actions taken by the Government
officials in the matter where 36 years which all indicate that the
Government was of the view continuously that there is need of
construction of a Dam/Barrage/Reservoir.
This Court passed a detailed order on 6th May, 2011
indicating some of the facts and specifically observed that none of
the parties disputed and everybody agreed that something is
required to be done on Kanhar river for providing drinking water to
the public at large in the drought stricken area in the State of
Jharkhand and refused to give three months time to the State
Government for conducting survey etc. which time was sought on
the ground of coming monsoon which was likely to hamper the
survey work and this Court observed that before coming monsoon
in one or two months some survey can be completed in view of the
fact that total three months time was sought by the respondent for
completion of the survey. At this juncture, it is relevant to mention
here that where the water is in scarcity and it can be because of the
poor rainfall yet monsoon was projected as hindrance in the work of
survey. That hindrance may be to some extent but that alone will
not work in view of the reply of the counters and rejoinders
submitted because there is involvement of another State and it was
projected that the policy decision will be required, therefore, this
Court directed the Secretaries of the State of Jharkhand and the
State of Chhatisgarh to convene the meeting which they did not
convene inspite of this Court's order.
Now the present committee meetings minutes dated
12.05.2011
has been placed before this Court and the first page
contains nothing as it contains the names of the participants in the
meeting and only the part of the order relevant for them wherein
they were directed to hold a meeting and submit a report on or
before 19th May, 2011 and then the minutes says that report on
feasibility on Kanhar Dam prepared by Water and Power
Consultancy Services (India) Ltd. (WAPCOS) was discussed and
deliberated upon. The final report on submergence area study of
the proposed Kanhar Jalasaya Yojana was prepared by Jharkhand
Space Application Center, Jharkhand was also deliberated upon.
Then they indicated the issues which are as under:
I) Height of the Dam,
ii) Survey to ascertain the extent of submergence of Human
habitations and forest land and other assets etc.
iii) Implications under Forests Rights Act 2006.
iv) Environment Impact Assessment.
v) Submergence of Coal bearing Area.
vi) Other options available as alternative to this project.
Then principal Secretary WRD, Chhattisgarh expressed his
view that they need to ascertain the exact extent of damage to life
and property of the people on the assumed height of 408.30 mts of
the Dam before committing anything on this issue. It is interesting
to note that the respondents sought the time of three months to
complete the survey in their earlier counter and this prayer was
rejected by this Court vide order dated 6th May, 2011 and in
pursuance to which this meeting was called and in this meeting it
was requested again that there will be need of at least three
months time to analyze the data made available from Jharkhand
which will be verified by WRD, Government of Chhattisgarh by field
survey to arrive at any definite conclusion meaning thereby the
prayer which was not granted by this Court to the State of
Jharkhand of allowing three months time for survey has been
projected to be demanded by the Government of Chhattisgarh.
It appears that in the meeting dated 12th May, 2011 there
were no material before the committee and therefore, there is no
reference of issues which were already taken note of and projected
as hindrance which may come in the implementation of the project.
Then the intention of the Government came up in para which is as
under :
“Apprehensions were expressed about the feasibility of a
project with such human and ecological dimensions. Principal
Secretary, Jharkhand mentioned that he would be requiring a policy
decision in this regard from the State Government, Principal
Secretary, WRD Chhattisgarh echoed similar views”.
This paragraph clearly indicate that both the Principal
Secretaries; Principal Secretary, Water Resources Department,
Government of Jharkhand and Principal Secretary, Chhattisgarh,
Water Resources Department, Raipur, clearly indicated that they
have not only doubt about the feasibility of the project as it involves
huge human and ecological dimensions and both the Principal
Secretaries rightly used the words “echoed similar views”. Then
they agreed that the State of Jharkhand may in the meanwhile
explore other options to impound the waters of Kanhar for Irrigation
purpose which will cause nominal / no hazard to human habitations
and the eco-system as suggested by WAPCOS in their report as
alternative-II. Therefore, in view of this clear indication by the
Principal Secretaries of the two States the petitioner should not
have more hope from the Government with respect to construction
of a Dam/Barrage/Reservoir. Both the Secretaries agreed for
providing the water of Kanhar for irrigation purpose.
We are not supposed to be technical experts but at least we
can see that this entire problem if Dam/Barrage/Reservoir is not
constructed over Kanhar Dam than it is because of problem created
by only bureaucrats and the persons who were engaged in this
project.
In the year 1974 and within a reasonable time for
construction of the Dam which could have been three to five years
then there would not have been any problem of displacement of
any person because of the construction of the Dam and this is a
way in which the problems are created.
Be it as it may, if a public interest has been got defeated by
the total inaction of the bureaucrats and another public interest has
been build up against the original public interest by projecting the
what harm can be because of displacement of large number of
people from area may frustrate the cause of the petitioner but shall
remain as example for public in future and this may treated to be an
example how public interest which was genuine from the day one in
the opinion of the public can be frustrated by the lack of
governance.
Be it as it may, the ultimate power vests in the government
though public is under illusion it vest in them, let the Government
take a decision whether there is yet any possibility of construction
of Dam/Barrage/Reservoir by taking into all the issues which are
relevant today and in the present situation which have come up
because of the total inaction of the Government since last 36 years.
The Principal Secretary, Water Resources Department,
Government of Jharkhand, shall remain physically present in Court
on 27th June, 2011 to explain and to give the Government’s
decision whether they want to construct Dam/Barrage/Reservoir or
they are not intending to do all the above things and indicate that
now the project is required to be dropped so as to avoid further
unnecessary public exchequer, if Court approves, their decision to
drop the project.
A copy of this order be sent to the Chief Secretary,
Government of Jharkhand and to the Principal Secretary, Water
Resources Department, Government of Jharkhand and a copy of
this order be also given to the learned counsel for the petitioner,
learned counsel for the respondent and learned counsel for the
Water Resources Department.
Put up this matter on 27th June, 2011.
(Prakash Tatia, A.C.J.)
(H.C. Mishra, J.)
D.S./Alankar.