(Translation from Nepali to English by Raju Prasad Chapagai)
Advocate Prakash Mani Sharma and others vs Nepal Drinking Water Corporation and others, WP 2237/1990 (10 July 2001)
Supreme Court of Nepal, Joint Bench
Hon’ble Kedar Nath Acharya,
Hon’ble Bhairab Prasad Lamsal,
WP No 2237of the year 2047 B.S (1990)
Petitioner: Advocate Prakash Mani Sharma and others
Respondants: Nepal Drinking Water Corporation and others,
Constitutional / Legal Issues
Is pure drinking water a matter of right?
To what extent is welfare state responsible for providing pure drinking water to its people?
Shall court collect and evaluate the evidences under writ jurisdiction in order to settle question of fact?
The Court elaborated on the significance of drinking water for maintaining public health. The court did not say explicitly that drinking water is a matter of right, but that providing pure drinking water is a responsibility of the welfare state. At the same time, the court denied issuance of mandamus to guarantee the right to pure drinking water as demanded by the petitioner. Instead, the court quashed the petition on the basis that the court cannot collect and evaluate evidence in cases brought to it under its writ jurisdiction. Finally, the court decided to alert the Ministry of Housing and Physical Development to hold the Drinking Water Corporation accountable in complying with the Corporation’s legal obligations under the Drinking Water Corporation Act.
ORDER IN DETAIL:
There is no question that the Nepal Drinking Water Corporation has an obligation to distribute pure and uncontaminated water. In regard to pure water and its significance, modern science establishes the fact “water is life and life is water.” Pure water is indispensable for lives of all living creatures of nature; it is an established, eternal truth and sensitive subject as well. Water free from any kind of bacteria, chemical, smell, color and acid, which has a quality to satisfy thrust, is actually pure and drinkable water. Health professionals recommend pure drinking water for human health. Polluted and contaminated drinking water results in epidemic diseases and other physical and mental health related problems to human being and animals as well. Eventually it impacts society negatively. According to health professionals, 70% diseases are caused by contaminated water. The World Health Organization has adopted standards regarding drinking water. Both parties, Petitioners and Respondents, agree upon these standards. According to the copy of World Health Organization’s 1984 Guidelines produced by petitioner, chlorination must not exceed the specified limit. Similarly, the guidelines discuses that coliforms are a group of related bacteria whose presence in drinking water may indicate contamination by disease-causing microorganisms which ultimately causes negative impact to human health. The guidelines are as follows …
The preamble of the Drinking Water Corporation Act 1989 mentions the expediency of maintaining public welfare and health by distributing pure drinking water on a regular basis throughout the country and to make proper arrangement for drainage systems. Section 5 of the Act imposes rights and duties on the Corporation: to formulate plans concerning drinking water and drainage systems; to implement these plans; to provide drinking water and drainage facilities by charging fees; to prevent pollution in drinking water systems; to provide speedy service if any customer notifies it that there is no water at the spout; and to do other work to be required for securing the objectives of Corporation. Accordingly, the Corporation has an explicit legal obligation to provide regular access to pure drinking water to consumers. The Corporation hasn’t ignored this fact. Though His Majesty’s Government has a responsibility to monitor and supervise the actions of the Corporation, it is an autonomous and organized entity under the Act. Therefore, the Corporation need not endure any interference from, or to be governed by, the apex government body in performing obligations under the Act. The Petitioner charges that the Corporation distributes contaminated water, collects fees even from places it does not distribute water to, and that its officials are not accountable. The respondent Corporation counters that it distributes drinkable water after biological testing is done; that efforts to improve the drainage system are going on; and that various measures to prevent leakage have been adopted. Concerning these facts, there is disagreement between both parties. On the one hand, petitioners contending that the Corporation is not distributing pure water on a regular basis; on the other hand, the Corporation says that it distributes tested pure water as per the WHO standard. In such a situation, the court can only come to a conclusion about whether or not the distributed water meets the WHO standard after collecting and evaluating evidence under Section 184 (A) of the Chapter on Court Management, National Code 1963. To settle questions of fact between litigants by collecting and evaluating evidence is a normal process under the ordinary jurisdiction of the court; but it is not possible under the ‘writ’ or ‘extraordinary’ jurisdiction. This court has established the principle that “no decision may be made by collecting evidence under writ jurisdiction.” (NLR 2049 No 7,p 689, JN 4591; NLR 2055 No 8, p 444 JN 6580). Henceforth, taking into account the legal principle that the court shall not collect or evaluate evidence in order to reach a decision as in cases under appellate jurisdiction, the petition is quashed.
With regard to the question of demanding distribution of pure water: the gravity of the subject and negative impact upon society due to the distribution of impure water can’t be ignored; both parties agree upon this fact. The respondent Corporation contends in its written statement (section 13) that it has been distributing water with the aid of loans from the World Bank and that it has no further capacity; the Corporation is unable to do any thing beyond its existing capacity. Art 25 of the Constitution of the Kingdom of Nepal 1990 states that the chief objective of the state is to protect the lives, property and liberty of the people by promoting their welfare. To guarantee necessities to people and its fair distribution is also a major obligation of the welfare state. Respondents must take seriously the abovementioned spirit of the constitution. Despite the preamble and the rights and duties of the Corporation prescribed under the Section 5 of the Drinking Water Corporation Act 1989, according to its written statement the Corporation seems reluctant to perform its duties to protect public health. The Drinking Water Corporation cannot be immune from its immense obligation towards public health; that is why it is decided to alert the Ministry of Housing and Physical Development to be the contact ministry for providing necessary directions to the Drinking Water Corporation in order to make the Corporation accountable and responsible and to make proper arrangements for providing pure drinking water as per its legal obligations under the Act.
Justice: Kedar Nath Acharya
I concur with the aforesaid opinion. Justice Bhairab Prasad Lamsal
Done on the 26th day of the month Ashad 2058 B.S. (10 July 2001)