S.B. Tripathi vs Delhi Development Authority & Ors
2012 Latest Caselaw 5784 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 26th September, 2012

+                                W.P.(C) No.8926/2011

       S.B. TRIPATHI                                             ..... Petitioner
                           Through:      Petitioner in person.

                                      Versus

    DELHI DEVELOPMENT AUTHORITY & ORS..... Respondents

Through: Mr. Bhupesh Nanda, Adv. for DDA.

Mr. Sumeet Pushkarna & Mr. Varun Dubey, Advs. for DJB.

CORAM :-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The petitioner, an advocate, resident of the colony of Dwarka, New

Delhi, has filed this writ petition in public interest to restrain the respondent

No.1 Delhi Development Authority (DDA) from supplying untreated, raw

and hard tubewell water to the residents of the colony of Dwarka,

particularly in Sectors 14-A and 14-B of the said colony; direction is also

sought to restrain the respondent No.1 DDA from mixing untreated, raw and

hard tubewell water with the water supplied by the respondent No.4 Delhi

Jal Board (DJB); direction is yet further sought against the respondent No.1

DDA to remove the encroachments on public land in the said colony.

2. Notice of the petition was issued. Counter affidavits have been filed

by respondent No.1 DDA and respondent No.4 DJB. None appeared despite

service on behalf of the respondent No.5 Municipal Corporation of Delhi

(MCD). Rejoinder has been filed by the petitioner to the counter affidavit of

the respondent No.1 DDA.

3. The petition pleads:

(i) that the distribution of water supply system scheme of Dwarka

Project was approved way back in the year 1993 by the DJB

inter alia on the condition that DDA shall manage water with

tubewells till DJB is in a position to obtain more raw water, as

DJB was not in a position to spare filtered water for Dwarka

due to severe constraint of raw water;

(ii) that the colony of Dwarka has been divided into five Command

Tanks with each such Command Tank supplying water to

specified areas of the colony;

(iii) that the water requirement of Dwarka is 60 Million Gallons per

day (MGD);

(iv) that of the five Command Tanks only two are functional;

(v) that DJB is supplying only 2 to 3 MGD of water for entire

Dwarka in one Command Tank only, wherefrom part of the

water is transferred by DDA to another Command Tank for

supply through tankers in the nearby areas;

(vi) that DDA has bored 4/5 tubewells in Dwarka in order to make

additional arrangement of water, but without making any

arrangement for water treatment. This raw water extracted

from tubewells is either being mixed in the water supplied by

the DJB or being directly supplied to some pockets of the

colony;

(vii) that the petitioner had earlier filed W.P.(C) No.10467/2004,

also in public interest, highlighting the paucity of water in the

colony - the said writ petition was disposed of vide order dated

02.02.2005 with the direction to the heads of DDA and DJB to

sit together and to ensure that the allottees of flats in the said

colony do not suffer owing to scarcity of water;

(viii) that the water supplied by the DDA in the colony has a very bad

taste and is salty;

(ix) that the tests got done by the Residents Welfare Association

showed the water to be unfit for human consumption;

(x) that certain persons have been encroaching / misusing public

land viz. road in front of Sector 14, Pocket-2, Phase-2, Dwarka

by operating weekly market (Saptahik Bazaar) on every Sunday

in connivance with DDA, MCD and the local police and

without any permission; and

(xi) that the representations in the aforesaid regard made to the

authorities have gone unheeded.

4. The respondent No.1 DDA in its counter affidavit has admitted the

water demand of Dwarka Sub-City to be approximately 10 MGD and the

supply by DJB of only about 3.5 MGD. It is however pleaded that the

parameters of hardness are kept within the permissible limits as prescribed in

BIS-10500 and the water supplied is fit for human consumption. The

allegations of encroachment on public land are denied. The respondent No.1

DDA has further informed that it has allotted and handed over land in the

colony of Dwarka, as demanded, to respondent No.4 DJB for construction of

Water Treatment Plant. Along with the affidavit, test reports to show water

supplied being potable are filed. With respect to the allegations in the writ

petition of encroachment, the respondent No.1 DDA has stated that in

response to its complaints to the police, the police has informed that the

weekly market complained of has been approved by the Lieutenant

Governor and the fee in accordance with the Rules is being collected by the

respondent MCD and the respondent No.1 DDA has no role in the same. It

is further pleaded that it is the MCD which is responsible for sweeping the

roads.

5. Respondent No.4 DJB in its counter affidavit has pleaded that it only

gives bulk supply of treated water to one of the Command Tanks of

respondent No.1 DDA in the colony of Dwarka; thereafter water distribution

system and supply for Dwarka is maintained by respondent No.1 DDA

which is the developing agency of the area in question and is solely liable

and responsible for supply of potable water at the consumer end in the area.

It is further informed that W.Ps.(C) No.7402/2005 and 7815/2011 with

similar grievances already stand dismissed vide orders dated 12.09.2011 and

11.01.2012 respectively.

6. The petitioner in his rejoinder to the counter affidavit of respondent

No.1 DDA had inter alia pleaded that respondent No.1 DDA has not

disclosed as to who has authorized mixing of raw tubewell water into the

DJB water; that since the ground water is highly saline and contaminated,

the respondent No.1 DDA is not justified in mixing the same with DJB

water; that the weekly market is being run in contravention of the norms

applicable thereto and beyond the earmarked portions; that the authorities

however for their ulterior motives turn a blind eye to such encroachment.

7. We have heard the petitioner appearing in person and the counsels for

respondent No.1 DDA and respondent No.4 DJB.

8. We have at the outset enquired from the counsel for the respondent

No.4 DJB the status of the Water Treatment Plan, land wherefor was given

by respondent No.1 DDA to respondent No.4 DJB in the said colony. The

counsel for respondent No.4 DJB informs that the said Water Treatment

Plan is 95% ready but cannot be made operational owing to scarcity of raw

water. It is informed that supply of raw water to feed the said Water

Treatment Plant assured by / expected from the State of Haryana has not

commenced as yet and without such additional supply from the State of

Haryana, no raw water is available to respondent No.4 DJB for treatment at

the said Plant and for onward supply in the colony of Dwarka. We find that

the prayer made in W.P.(C) No.7402/2005 supra decided on 12.09.2011 was

also for a direction to respondent No.4 DJB to take charge of the water

supply in the colony of Dwarka. It was the stand of respondent No.4 DJB in

the said writ petition that it / its predecessor had as far back as in the year

1992-94 warned that the required quantity of water in the then proposed

colony of Dwarka could not be supplied due to severe constraint of raw

water; that the Water Treatment Plant at Dwarka was to be fed from Munak

Canal, Haryana, the construction whereof was likely to be completed in

March, 2012; that only after the supply of water from the said Munak Canal,

Haryana commences, could the Water Treatment Plant be commenced. In

the face of the said pleadings, direction as sought in the said writ petition

against respondent No.4 DJB was declined.

9. From the pleadings and material aforesaid, it is obvious that at the

stage of inception itself of the colony of Dwarka, it was known that there

was no water available for meeting the requirement of to be residents

thereof. The colony was nevertheless developed with the hope of additional

supply of water from the State of Haryana. The same has not happened till

now. Considering the growing population of the city and the consequent

expanding need for housing, we cannot blame the authorities for going

ahead with development of the colony of Dwarka without assured

availability of water to cater to the needs of the to be residents thereof. It is

also obvious that once the colony was developed, to cater to the needs of the

residents for water, borewells were deployed. The petitioner also agrees that

notwithstanding the hoped / expected supply of water from the State of

Haryana having not materialized, the colonization which has happened

cannot be undone now and the residents thereof cannot be evacuated.

Naturally, water from the tubewells cannot be the same as treated water. We

have enquired from the counsel for the respondent No.4 DJB whether it is

possible for borewell water to be treated in the Water Treatment Plant which

has been readied. The answer is in the negative. It is stated that the supply

from the borewell is not sufficient for operation of the Water Treatment

Plant. That is not the case of the petitioner also.

10. The grievance as aforesaid of the petitioner now is not of paucity of

water but as to the purity of water and that too of mixing of water supplied

by respondent No.4 DJB with the underground water. However, there is

only one water distribution network in the colony and separate water

distribution networks for water supplied by DJB and underground water are

not available. The underground water is necessary to make up the

deficiency in the water supplied by DJB. Inspite of our repeated queries, the

petitioner has not been able to give any solution as to how mixing of the two

can be avoided.

11. On the contrary, the counsel for the respondent No.4 DJB fairly

informed, that several Housing Societies in the colony have made their

arrangements for separate storage of the DJB water meant for drinking and

cooking and for underground tubewell water meant for other needs and are

availing of supply through water tankers of DJB water. A similar

arrangement is offered to other Housing Societies who may be willing. The

petitioner alas is only one of the resident's and though had impleaded the

Residents Welfare Associations as respondents has subsequently dropped

them from the array of parties. Notice may also be taken of the fact that

W.P.(C) No.7402/2005 supra was filed by the Federation of Cooperative

Group Housing Societies - Dwaraka Ltd. and who seem to be satisfied with

the order dated 12.09.2011 therein.

12. The petitioner though has not been able to come up with any solution

which could be enforced, however keeps on insisting that it is the duty of the

respondent No.1 DDA and respondent No.4 DJB to supply treated water.

Even if that be so, in the face of the scarcity and which is not disputed by the

petitioner also, this Court is not able to yield a magic wand to make water

out of thin air. We, in this regard, are reminded of the magic trick titled

"Water of India" of the famous magician P.C. Sorcar.

13. The Supreme Court in State of Punjab Vs. Ram Lubhaya Bagga

(1998) 4 SCC 117, though in the context of health services and noticing that

it is the primary duty of the State to secure health to its citizens, nevertheless

held that no State or any country can have unlimited resources to spend and

that is why it only approves its projects to the extent it is feasible and that

provision of facilities cannot be unlimited and has to be to the extent finance

permits; the Court would not interfere with the same. The said dicta applies

on all fours to the present situation.

14. However, having said so, we may observe that the same should not

tantamount to respondent No.1 DDA, respondent No.4 DJB or the other

governmental agencies resting in peace. Having spent huge amount (we are

informed in the region of `800/- crores) on the construction of the Water

Treatment Plant, endeavour should be made to ensure supply of water

thereto as envisaged from the State of Haryana. We grant liberty to the

petitioner to represent to the Government of National Capital Territory of

Delhi and the State of Haryana (who are not parties to this writ petition) in

this regard. We further direct the respondent No.1 DDA to, from time to

time have the supply of water at the end point in different parts of the colony

examined / checked / tested to ensure potability thereof. Though our

suggestion for treatment of the ground water in the newly constructed Water

Treatment Plant was negatived as above, but we beseech respondent No.1

DDA and respondent No.4 DJB to have the said proposal examined

technologically and we are sure that with the scientific advancement, some

solution can be found. It is a pity that inspite of water and the Treatment

Plant, both being available, they cannot complement each other for supply of

treated water to the residents of the colony. We also bind the respondent

No.4 DJB to its offer aforesaid for supply of DJB water to the Housing

Societies who may be in a position to make use thereof for drinking and

cooking purposes.

15. As far as the grievance with respect to the weekly market is

concerned, the petitioner has argued that the place qua which grievance is

made in the writ petition is different from the place where the weekly market

has been authorized.

16. MCD as aforesaid has chosen not to appear. We are however aware

of MCD, which is the authorized agency in this regard, having permitted

such weekly market in various colonies of Delhi. Similarly, the National

Policy on Urban Street Vendors, 2009 also provides for MCD to identify and

allot vending / squatting sites on various street pavements / curbs to street

vendors.

17. However, in the absence of the MCD and in view of the conflicting

stand of the petitioner and the respondent No.1 DDA, the only direction

which we can give qua the allegations in the petition of encroachment is that

the MCD and the SHO of the concerned police station shall remove any

unauthorized street vendors on the road between Om Apartments, Sector-14,

Pocket-2, Phase-2, Dwarka and upto Nirmal Bhartia School. We also grant

liberty to the petitioner to give a copy of this order to the SHO of the

concerned Police Station for compliance.

The petition is disposed of in terms of the above.

No costs.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

SEPTEMBER 26, 2012 'gsr'