Is It Permissible For The State To Alienate Common Water Bodies For Industrial

Activities, Under The Disguise Of Providing An Alternative ?

The Supreme Court found this as a relevant question of law while considering an appeal filed
by Jitendra Singh against an order of National Green Tribunal relating to the allotment of
artificial water bodies as a replacement for existing natural water bodies.
Background
The matter arose when on 18/01/2017, the agents of one of the respondent i.e. M\S Sharp
Enterprises Pvt. Ltd. came over and tried to forcibly take over a pond that has been used by
the locals of the said village for years, by using heavy machinery and excavators. The same
was objected to by the villagers and the appellant filed a complaint against the said activity to
various authorities including district collector. However no substantial help was given by any
of the authorities, forcing the appellant to move to National Green Tribunal (since various
aspects of environment were involved in the said take over) by way of an original application
under section 14 r\w section 15 of the NGT act. The appellant
argued that the water bodies were vested in the Gram Sabhas as per section 117 of the UP
Zamindari Abolition and Land Reforms Act, 1950, he contended that such allotment of land
by the authorities to any private parties was ultra vires in nature since there is no
consideration of law. He further argued that no necessary environmental clearance under The
Environmental (Protection) Act, 1984 were taken by the authorities before allocating the
land to these third parties.
Meanwhile as the proceedings were going on the respondent started constructing an artificial
pond close to the location of the disputed pond as a new water body (1.25 times bigger).
NGT in its decision, abruptly concluded that the “substantial grievance of the appellant has
been restored by the construction of such artificial pond” and accordingly dismissed the
application of appellant.
Supreme Court’s take on the whole issue
The summary dismissal by the NGT was challenged by the appellant to the Supreme Court
on the ground of NGT being highly ignorant to even look at the prayer of appellant’s
application, didn’t even call for a proper enquiry in the said matter and decided everything on
the basis of a proposed affidavit. The appellant further argued that the location of said pond
has already been marked in the low water table category and any interference with the status
quo would be very much detrimental to both environment and locals living there in so many
ways, which is in violation to the wholesome environment guaranteed under article 21 of the
Indian Constitution. Further interpretation of articles 48A and 51-A(g) of the Indian
Constitution places a prerogative on part of the state to protect and safeguard the
environment, which very well includes lakes and ponds.
The respondent in the said appeal could only contend upon the idea of allocating an alternate
1.25 times bigger pond, alleged that the appellant is taking up the whole issue because he
wants to use the said property for purpose of cattle grazing and shown a few pictures proving
the land in dispute to be an ordinary land, occasionally covered with water in rainy seasons.
The bench consisting of Justice Arun Mishra and Justice Surya kant, in their decision
concluded that in Hinch Lal Tiwari v. Kamla devi, this court has already made it very clear
that ‘Ponds’ are a public utility meant for common usage by the entire population
residing around that area and they can’t be allocated or commercialised under any
situation whatsoever.
The bench further asserted that contention of it not being a pond anymore can’t be taken into
consideration for a very simple reason that it was the responsibility of authorities to do
something about it when it was not in use, which would’ve prevented one such ecological
loss, on the same point of time such ignorance of the authorities can’t be taken as a defence
for the said allocation of land to any third party.
The court also reiterated Jagpal Singh v. State of Punjab, and analysed the principle of
allocating common lands in village communities for their collective good, which ought not to
be taken away from them under any circumstance.
With above mentioned considerations the court held that “it is not permissible for state to
alienate common water bodies for industrial activities under the guise of providing
alternatives.”

Picture source - https://www.telegraphindia.com/india/supreme-court-seeks-election-

commission-s-response-on-decision-to-hold-separate-bypolls-in-gujarat/cid/1692733

Judgement source - https://www.livelaw.in/pdf_upload/pdf_upload-367128.pdf