National Green Tribunal
Joydeep Mukherjee vs The Chairman West Bengal Pollution ... on 21 September, 2020
1
Item No. 02
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No.12/2015 (EZ)
Joydeep Mukherjee Applicant(s)
Versus
The Chairman, Pollution Control Board & Respondent(s)
Ors.
Date of hearing: 21.09.2020
CORAM: HON'BLE MR. JUSTICE S. P. WANGDI,JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Mr. Subhas Datta, Amicus Curiae
For Respondent(s): Ms. Arpita Chowdhury, Advocate for
Respondent No.1,
Mr. Bikas Kargupta, Advocate for
Respondent Nos. 2 to 4, 9, 11&12,
Mr. Amitava Das, Sr. Advocate for
Respondent No.8,
Mr. Joy Saha, Sr. Advocate along with
Mr. Soumen Ghosh, Advocate & Mr.
Snehashis Sen, Advocate for
Respondent No. 19
Mr. Ashok Kumar Banerjee, Sr.
Advocate for KMC
Ms. Paushali Banerjee, Advocate for
KMDA & KMC,
Mr. Ashok Prasad, Advocate for
Respondent Nos. 14 &17,
Mr. Soumitra Mukherjee, Advocate for
Respondent No.16
ORDER
1. This case has been filed by the Applicant raising concern with regard to the pollution caused to river "Adi Ganga" due to discharge of sewage and effluent and 2 unregulated disposal of the garbage into the said river causing severe pollution. It is alleged that:
a) There is no proper drainage system for the entire Kalighat Mandir for the disposal of waste materials.
b) After performance of puja, the entire puja materials consisting mainly of used flowers are directly disposed of in the River Adi Ganga and thereby destroying the ecological ratio.
c) Indiscriminate use of polythene, plastic, and other matters in and around the Kalighat temple area has added to the pollution of Adi Ganga.
d) Approximately 30 hotels and 50 restaurants situated in and at around Kalighat temple discharge sewage and wastage materials directly in to the river Adi Ganga and also dump garbage which has resulted in decrease in the depth of the river.
e) After the traditional sacrificial rituals, animal body parts and waste also get disposed into the said river.
f) Lack of drainage system compels the pilgrims to dispose off waste into the river.
2. For the above reasons apart from heavy pollution being caused to the river, its flow has been blocked and its 3 depth reduced affecting the sanctity of the Kali temple and the environment.
3. When the case came up before the Tribunal for the first time on 19.03.2015, the Tribunal, taking into consideration the facts and circumstances set out in the application, directed the State Pollution Control Board to inspect the area in question, collect samples of the water from at least three points in the upstream and downstream of the river Adi Ganga at Kalighat temple and to submit a report particularly in respect of PH, TSS, TDS, DO, BOD, COD as well as the flow rate of the river. Besides this the State Pollution Control Board and the Kolkata Municipal Corporation directed to place on record the status of Adi Ganga by way of affidavits. The Kolkata Municipal Corporation was directed to remove all encroachments on both the banks of the river and to take steps to prevent discharge of untreated waste water and solid waste in the river as well as to submit a scheme for restoration of the river. The Chief Secretary Government of West Bengal and the Principal Secretary, Urban Development Department were called upon to take appropriate steps and to submit a status report highlighting the scheme, expert reports, etc. for revival of the river.
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4. As directed by vide order dated 19.03.2015, the State Pollution Control Board filed a status report which was taken up on 28.04.2015. The report suggested various steps to be taken which the Board was directed to take up and also to conduct inspection of the entire stretch of Adi Ganga from its initial point, diversion point from the Ganga up to the Garia station and to submit a report specifically on the question as to whether any construction had been raised on the bed of the Adi Ganga. On 06.07.2015 the Tribunal drew up a summary of the major causes of pollution of the Adi Ganga which are as follows:-
" 1. Action may be taken against hotels operating without permission of the State Pollution Control Board.
2. It is learnt from the official of Inland Water Ways (I &WW) Department, Govt. of West Bengal during the visit that Metro Railway Authority has taken permission from Govt. of West Bengal for construction of piers.
3. All solid waste dumps including those used for roads and bund/bridge within the active river zone and across the river should be removed forthwith.
4. Construction work for development activity may be permitted across the river without any obstruction to the flow or polluting the river through disposing solid waste and discharging untreated sewage.
5. Construction of Metro Rly piers in the bed of Adi Ganga has not only reduced the water flow path way but also the cause for generation of silt and thus reduce the depth of river.
6. The concerned authority may take measures for uprooting and lifting water hyacinth, weeds and floating refuses to sustain the flow channel along the up-stream of Adi Ganga."
5. After considering the matter and upon hearing the Ld. Counsel for the parties, following orders were passed:-
"i) As suggested by the Pollution Control Board, action should be taken against those who are running hotels unauthorisedly without proper permission from PCB. Action taken report in this regard be submitted on the next date giving details of the particulars of the hotels who are operating without permission of PCB in accordance with law.
ii) The General Manager, Metro Railway authorities, Kolkata be added as a respondent in this proceedings. Registry is directed to amend the cause title accordingly. Notice be also served on the added respondent in usual terms i.e. speed post/dasti. A copy of the status report filed by the PCB today 5 be also served upon the General Manager, Metro Rly including all other documents and other particulars. He may file reply, if any, particularly with reference to the allegation made that the piers of metro railway were constructed on the river bed which have not only reduced the water flow path way but also caused generation of silt and thus reduced the depth of river. Let copy of the affidavit and status report of Pollution Control Board be furnished to the Metro Railway authority so that they can file their reply within three weeks.
iii) From the report it also transpires that solid waste dumps including those used for roads and bund/bridge within the active river zone and across the river are thrown in the river which require to be removed forthwith. It further appears from annexure-1 that at least 12 bridges have been constructed over Adi Ganga and some bamboo made temporary bridges have also been made. However, this may not cause obstruction of flow of Adi Ganga and therefore need not be considered at this stage.
But our concern is about dumping of solid wastes and construction debris which are thrown to the river Adi Ganga causing obstruction to the flow of water as also discharge of untreated sewage etc. which is causing pollution of the river. These needs to be taken care of by the competent authority and all such solid waste should be lifted from the river bed and it should be ensured that no such waste materials are dumped in the river.
iv) From annexure-II of the report at page 8, which are photographs it appears that floating substances have clogged Adi Ganga near Garia Metro Station and there are other structures made on the river bed and the river is almost dried up due to lack of flow of water. Although KMC respondent has in their reply affidavit submitted that they are cleaning the Adi Ganga regularly and lifting solid materials from river bed but that report of is of April 2015 whereas the status report of PCB is dt. 29th June 2015 i.e. very recent one.
v) Having regard to the above position, Kolkata Municipal Corporation is directed to remove all solid waste and other obstructive materials which are obstructing the flow of Adi Ganga. All unauthorised structures made on the bed of Adi Ganga should also be demolished to restore the flow of water in the Adi Ganga within four weeks. Action taken report be submitted on the next date.
vi) PCB will make further inspection after five weeks and submit a fresh status report before this Tribunal on the next date.
vii) Metro Railway authorities are directed to submit a scheme/proposal to ensure easy flow of water course upto last stretch by making passage by the side of the pillars which have been constructed on the river bed. The Scheme and action taken report for restoring flow of river course should be filed by the GM Metro Rly. by four weeks."
6. Without going further into the other events that transpired during the proceedings, we may only refer to some of the orders first of which is order dated 06.10.2015 by which the Kolkata Municipal Corporation (KMC) was directed to conduct a local inspection and to review all encroachments and illegal khatals and further 6 to plug and seal all sewerage outlets of the corporation as well as private individuals found to be discharging untreated water into the Adi Ganga. By order dated 03.03.2016 we had noted the admission on the part of the Kolkata Municipal Corporation that untreated sewage was being discharged into the Adi Ganga and that the corporation had taken steps to repair and manage the existing sewerage system, the work in respect of which was to commence in September 2016 for which six months time was sought for. It was further noted that the KMC had undertaken to remove all solid waste collected on the banks of the river Adi Ganga and that action had been initiated for removal of encroachments. Vide order dated 22.09.2016 further steps taken for removal of the encroachments like Khatals and Piggeries from both banks of Adi Ganga and removal of garbage were noted and that out of the 57 gravity out-falls with penstock gates on the banks of Adi Ganga set up to allow the discharge of storm water during monsoon and to prevent entry of high tide water, 20 out-fall points had been encroached by the KMC. The State PCB, however, had reported that a few of the KMCs Sewer outlets/outfalls were found open at various places and some partially closed from where sewage was found leaking into the Adi Ganga. Accordingly direction were issued to take appropriate measures to prevent 7 such leakage and to test the sample of water from different stretches of the river both during the low tide and high tide and to submit a report. Vide order dated 17.11.2016 we had noted the report of the KMC that the area has been made free of encroachments by removal of all Khatals and Piggeries. Direction had been issued upon the KMC to create parks and other facilities for the benefit of public in the area to discourage fresh encroachments. It was also noted that the quality of the water after sample tests was found to be non-compliant of the standard specifications which indicated that the surface water flowing during the high tide did not effectively dilute the pollutants leaving heavy pollutants in the sediments at the bottom of the Adi Ganga. It was, therefore, directed that steps should be taken for getting the Adi Ganga cleaned by incorporating the river as a part of the Namami Gange project in respect of which DPR was said to be under preparation which was, therefore, directed to be expedited. It was later brought to the notice of the Tribunal that Adi Ganga falls under the National Ganga River Basin Project under the National Mission for Clean Ganga and not under the "Namami Gange" project. Affidavit filed by the Chief Secretary which was taken up on 19.12.2016 stated as follows:-
"4. From the perspective of pollution abatement and rehabilitation of the Tolly Nalah a project has been conceived as National Ganga River Basin Project monitored by National 8 Mission for Clean Ganga (NMCG) under the Ministry of Water Resources, River Development and Ganga Rejuvenation, Govt. of India, for which financial assistance would be procured from the World Bank through NMCG. Selection of a consultant in conformity with the world Bank's procurement guidelines is in process and is likely to be finalised by May 2015. The consultant shall prepare inception report/master plan, DPR and the bidding documents regarding the waste water and solid waste."
7. And accordingly the following orders were passed:-
"The Chief Secretary shall file an affidavit on the progress made on this aspect on or before the next date. Mr. Bikas Kargupta, ld. Govt. Counsel shall take steps in this regard.
Considering that the Adi Ganga is an important water body stretching over 75 KMs across the State and the city of Kolkata, we are of the view that its condition needs to be monitored strictly."
8. On 27.01.2017 the Director of the State Programme Management Group, West Bengal, working under the National Mission for Clean Ganga Authority informed the Tribunal that a portion of the river had already been brought within the ambit of the DPR prepared by the authority. In view of this, it was directed that the entire stretch of the Adi Ganga be brought within the ambit of the DPR as the Adi Ganga was a tributary of the Ganga as it drains into the Ganga Sagar i.e. the confluence of Adi Ganga and the Bay of Bengal. A DPR prepared by the KMC had eventually been submitted to the NMCG authority for its approval as per the laid down procedure in relation to pollution abatement and rehabilitation of Tolly's Nullah.
9. It is of pertinence to note that on 20.05.2017, the Bench on its own inspected a stretch of about 13 Kms of the 9 Adi Ganga commencing from Garia towards Vidyadhari river during which the situation was found to be worse then what was speculated. Direction was thus issued upon the KMC to take urgent steps towards cleaning of the river from Garia to Garia railway station having found the area to be in gross neglect and the water body filled with municipal solid waste and plastic waste that were emitting obnoxious odour. It was noted that the collection of waste in the river had resulted on account of the negligence on the part of KMC. Encroachments on the banks of the river were also observed all along the stretch on the side of the railway station and beyond. Concrete structures and septic tanks were found to have been constructed on the river bed. Water hyacinth and other hydrophytes covered the river at various stretches and heavy sedimentation of silt that had reduced the depth of the water obstructing the free flow of the river. The level of Adi Ganga which rises and falls with the high tide and low tide was found still due to the obstructions caused by indiscriminate disposal of waste, sedimentation and growth of hyacinth and hydrophytes. The KMC, the Urban and the Municipal Development Department Government of West Bengal were, therefore, directed to take appropriate action for remedying the situation. The NMCG authority was required to take up the project urgently and finalize the project at the 10 earliest. The other crucial question was the diversion of the sewage from the river towards which the following order were passed:-
"The other question that needs consideration is the necessity to set up Sewage Treatment Plants (STPs) to divert the sewage being presently drained in the Adi Ganga at various stretches. It is informed by Mr. Aloke Ghosh, Ld. Advocate for the KMC on instructions from Mr. Tapan Mondal, Director General, Tolly's Nullah Project, that although land available for setting up STPs is limited, they have identified ones at Chandi Ghosh Road, War No. 27, allotted to West Bengal Police where the STP of 15 MLD can be installed, another owned by the KIT can be used for construction of 5.7 MLD capacity STP and a third one can be set up at Garia on a land owned by KMC and, therefore, unencumbered. It is stated that the aforesaid areas were identified in a joint inspection conducted by the Member, Mayor-in Council (SWM), the local councillors of Ward No. 97 and other responsible officers of KMC.
It would be ideal to have the land at Chandi Ghosh Road and the one under KIT allotted to the KMC for the purpose of construction of STPs. Delay in allotment may result in the land being used for other purposes which may not be of eminent importance as construction of STPs is in public interest.
Therefore, the Home Department and Urban and Municipal Affairs Deptt, Govt. of West Bengal shall take up this issue immediately and explore the possibility of these areas being allotted to the KMC.
The Principal Secretary, Home Deptt. and the Principal Secretary, Urban and Municipal Affairs Deptt. shall file action taken reports on this on the next date. It is needless to state that when the aforesaid process is in progress, the KMC shall undertake on an urgent basis the exercise of cleaning Adi Ganga commencing from Garia onwards. While doing so, they shall first identify the critical areas and commence with the work from there. The Solid Waste collected shall not be dumped on the banks of the river but be collected and disposed of at the designated dumping grounds under the Corporation."
10. It may be noted that by order 31.07.2017 it was observed as follows:-
"From the affidavit of the Secretary, Urban & Municipal Affairs Deptt. Govt. of West Bengal, we find that the Programme Director, West Bengal State Programme Management Group had sent a detailed project report to the Additional Director and Director General, National Mission for Clean Ganga Authority (NMCGA) highlighting the scope of the work as short term, medium and long term Plans vide Memo dated 6.6.2017 in reply to which vide letter dated 27.6.2017, NMCGA had informed that they may consider the proposal on sewer and drainage network including pumping stations and STPs which was likely to cost Rs. 339.50 Crores.
On this aspect, the affidavit of the Ministry of Water Resources, River Development & Ganga Rejuvenation and National Mission for Clean Ganga is not specific. We find that a broad statement has been made in para 4 giving an impression as if the projectwas for the entire Ganga whereas as per KMC the DPR pertains only to Tolly's Nallah (Adi Ganga) stretch.11
The Ministry also appears to have taken a hyper technical and pedantic view inasmuch as it has been stated that the works of Nullah Resuscitation, Dredging and lining Barrage/weir gate at the confluence of Tyolly's Nullah and Hooghly, rehabilitation of slum Basti and Solid Waste Management, etc. are not admissible under the NMCGA's mandate and that it only brings within its purview management of collection of floating and solid waste entering into the river.
While we appreciate the stand of the Ministry that collection and disposal of solid waste is the responsibility of the Urban and local bodies, it is beyond our comprehension as to how Nullah Resuscitation, dredging and lining barrage/weir gate would not fall within its mandate. Siltation per se and siltation aggravated by solid waste disposed of in the water bodies/tributaries to the Ganga would certainly be deleterious not only to the health of the river but endanger its very existence if regular dredging is not carried out periodically. In our considered opinion, if such components do not form part of the Ministry's or NMCGA's mandate, it ought to be considered as to whether the mandate should be reviewed for bringing within its fold such components. This, of course, is a matter which shall be considered by the experts of the NMCGA. They shall examine this aspect and work out appropriate proposal for consideration of the NMCGA. A report shall be filed on the action taken on this on the next date.
In so far as allotment of the sites for establishment of STPs, as directed by our order dt. 30.5.2017 is concerned, it is stated in the affidavit filed today by the Urban and Municipal Affairs Deptt. that possession of the land at Russa Road South, 1st Lane, KIT Scheme No. 118 has already been handed over to the Chief Valuer and Surveyor, KMC on 26th July, 2017 for setting up STP of 5.7 MLD.
From the submissions of the Ld. Counsel for the State Govt. and the KMC under instructions, it appears that although the land in question has been handed over to the KMC, the other at Garia being their own land is already in their possession, the third one identified at Chandi Ghosh Road, Ward No. 27 allotted to West Bengal Police which, as per the Ld. Counsel for the KMC, is likely to culminate in its formal allotment, nothing appears to have been done effectively except for submitting DPR to the NMCGA. The NMCGA on the other hand which has not indicated much on the progress made in the process of consideration of the DPR submitted by the KMC and the State Govt. except to state that the components falling within its mandate are under consideration for being referred for third party appraisal through the NMCGA's empanelled agency."
.......
"As already observed, this order is limited to the components at Sl. No. 1 of the Table of the works referred to in their affidavit filed today.
In so far as other three components viz. Sl. Nos. 2,3 and 4, i.e., Nullah resuscitation, dredging and lining barrage/weir gate , solid waste management system and rehabilitation of slum basti, are concerned, they are at liberty to examine this further. We are, however, prima facie of the view that the works at Sl. Nos. 3 and 4 i.e. solid waste management system and rehabilitation of slum basti , certainly would not fall within the purview of the activities of NMCGA but of the local bodies. In view of the above, we direct that while the portion of the work at Sl. No. 2, i.e., Nullah resuscitation, dredging and lining barrage/weir gate, (subject to review of NMCGA mandate as directed earlier) shall be considered along with the work at Sl. No. 1, i.e., construction of sewer and drainage network etc., the one at Sl. No. 3 and 4 shall be taken up by the State Urban & Municipal Affairs Deptt. upon themselves since the draft DPR was approved by them before being forwarded to the NMCGA."12
11. Vide Order dated 18.09.2017 it was noted that the sum of Rs. 307.12 crores had been approved under the Namami Ganga Programme for Pollution Abatement and Rehabilitation of Tolly's Nullah (Adi Ganga), Kolkata, envisaging Interception & Division with pumping stations and sewage treatment plant including 15 years Operation & Maintenance (O&M) of the sewerage infrastructure created, out of which Rs. 82 and 86 crores were earmarked for the Nullah cleaning and dredging work.
12. The KMC, Urban and Municipal Affairs and Irrigation and Water-ways Department, Government of West Bengal were required to prepare an action plan to cover the entire stretch of the river commencing from its source till the point of its discharge into the Hooghly river (Ganga).
13. When the matter came up on 08.04.2019 before the Tribunal after a hiatus of almost more than two years, we noted that the action plan that had been directed to be prepared was yet to be prepared which led the Tribunal to call for an action plan and a report on the steps taken in its implementation. It was observed that the Adi Ganga is one out of the 351 polluted river stretches in the country which is being considered by the Principal Bench of National Green Tribunal in O.A. 13 673/2018 titled as News item published in "The Hindu"
authored by Shri Jacob Koshy titled "More river stretches are now critically polluted : CPCB.
14. The Chief Secretary Government of West Bengal was required to oversee the proceedings to ensure preparation of an effective action plan. Order dated 29.07.2019 of the Tribunal has recorded the entire proceedings and noted that the progress was far from satisfactory and wanting in the pace considering the timeline which have been expressed earlier, more particularly with regard to the allotment of land and construction of STPs. It was expected that the projects would be completed considering that the case had been pending since the year 2015. The status report which were filed were found to be disappointing in its content as observed in our order dated 20.09.2019, when the information which have been placed before us by Amicus Curiae were also noted and observed as under :-
"Mr. Subhas Dutta, Amicus Curiae has brought before us disturbing information with regard to construction of concrete structures in the form of bridges on the Adi Ganga river at different places, namely, Kali-Ghat Temple, near Karunamayee and Garia Market. That apart matter relating to filling up and reclamation of Adi Ganga for widening the road near Karunamayee has also been brought to our notice. We are rather surprised to note that the State Government or its agency do not appear to be appreciative of the fact that matter relating to rejuvenation of Adi Ganga is under consideration before us. No one present is in a position to inform us as to which authority is undertaking such works."
15. Accordingly, the Chief Secretary, Government of West Bengal was directed to take appropriate action and to file an affidavit. The affidavit filed by the Chief Secretary 14 pursuant to this direction inter alia stated that fund for setting up of the STP provided by the NMCG had been made subject to action taken for removal of encroachment/slum basti/resettlement of encroachers, dredging and cleaning of nullah, solid waste management system, designated waste disposal sites, fencing of nullah and nullah front improvement and beautification, etc. It was stated that the conditions are not pragmatic considering the necessity to release the funds immediately as installation of the STPs is one of the paramount and urgent requirement for cleaning of Adi Ganga.
16. The NMCG was, therefore, called upon to release the fund urgently. Affidavit filed by the NMCG was taken up on 16.12.2019 along with a supplementary affidavit by the Kolkata Municipal Corporation. In the affidavit filed by the Kolkata Municipal Corporation, it was noted that effective steps were being undertaken for rejuvenation of Adi Ganga. We had also noted an important aspect pointed out in the affidavit of the KMC filed on 18.11.2019, in respect of construction of the elevated metro corridor over Adi Ganga on the upstream which, according to the KMC, has practically left no space for access underneath the station to clear and remove the solid waste and construction debris collected underneath it hindering the smooth flow of Aadi Ganga. 15
17. An Affidavit was, therefore, called for giving an action plan with timeline to deal with the solid waste collected underneath the stations both by the KMC and the Metro Rail Corporation Authority. Kolkata Port Trust in its affidavit has not agreed with the request of the Kolkata Municipal Corporation to allow utilization of a portion of the land belonging to the Trust for rehabilitation of persons displaced in the Adi Ganga cleaning project.
18. An affidavit filed by the NMCG in rejoinder to the report filed by the Chief Secretary dated 13.11.2019 and in compliance of the order dated 18.11.2019, clarified that no prior conditions had been imposed for release of funds for project on pollution abatement and rehabilitation of Tolly's Nullah (Adi Ganga), Kolkata (Interception & Diversion with PS and STP) in West Bengal State. It was stated that the project is under World Bank external assistance and the Environmental & Social Management Plan protocol of the World Bank maintains that the project should be free from encroachments and may cater to proper rehabilitation and resettlement of project affected persons, if any, and further should also maintain good framework of such projects. These prerequisites, if satisfied by State a- priority, will aid in early grounding of project as prospective bidders have expressed serious concerns on 16 the status of encroachment of proposed project area. It was reiterated that the NMCG has not imposed any pre- conditions for funding the project for rejuvenation of Tolly's Nullah (Adi Ganga) sanctioned earlier (Annexure- I) except that there were various site specific complex issues owing to geographic & demographic factors to be addressed and are critical for successful implementation of the project. It is contended that although the State has agreed that the site conditions can be satisfied only in a phased manner, no time frame was committed for completion of the exercise. It is stated that the NMCG in its letter dated 01.10.2019, had only resonated the concerns of State and requested to expedite the process and further, if the site specific issues were not addressed in a time bound manner, the process of procurement of contract may not yield the desired results.
19. Thus, the NMCG sought for a direction against the State Government to prepare a time bound action plan for completing aforementioned critical activities so that such information is made available for the bidders to understand and assess the associated risks for project on pollution abatement & rehabilitation of Tolly's Nullah (Adi Ganga), Kolkata (Interception & Diversion with PS and STP) in West Bengal State.
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20. A supplementary affidavit filed by the Kolkata Municipal Corporation sought to place on record the status of action plan in the light of the various directions passed by the Tribunal and the latest developments regarding Adi Ganga as per the Municipal Corporation the following measure was stated to have been undertaken to curb pollution of Adi Ganga:
Sl. Key Authority Time Target for Remarks No. Component of Concerned Completion Action Plan 01 Dredging in KMC Initially started Dredging KMC area on 09.12.2019 in areas and is in progress within 03 completed. the irrigation and waterway s departme nt already complete d.
02 Cleaning of KMC 1. The work was Work is
garbage and taken up in going on
debris from May, 2019 and ceaseless
water body, to be continued ly and to
slopes and in a regular be
banks within manner. continued
i. KMC 2. Work is in .
area progress
ii. Irrigait
on and
waterw
ays
area
03 Removal of KMDA
encroachmen informed
t that DPR
for
settlemen
t of 432
numbers
of
dwelling
units in
Ward no
113 and
114 and
sent for
funds to
Governme
nt of
India.
Further
shifting
and
18
resettlem
ent of 96
dwelling
units are
to be
construct
ed by 18
months
after
receiving
of land
complyin
g all
formalitie
s from
DM (south
Parganas)
Land
Departme
nt,
Governme
nt of
West
Bengal
according
ly a letter
has been
issued
vide no
Con/Com.
41/NGT-
Adi
Ganga OA
No. 12-
2015/202
0-21
dated
26.06.20
by
Municipal
Commissi
oner,
KMC.
04 Fencing & KMC Fencing KMC have
beautificatio Date of undertak
n of the commencement en for 2.4
encroachmen 19.11.2019, will km
t free be completed by stretch.
stretches on September, 2020
both banks.
05 Sewerage KMC Total 77 nos of
discharge toilets have been
into the river. constructed in
various locations
along the stretch
and hence
disconnected
from river bed.
06 STP KMC Date of tender
opening finalised
on 15/09/2020
07 Setting up of KMC Completed
organic
composter in
04 temple
areas.
08 Awareness KMC Awareness
programme are
being
implemented and
continued on
daily basis.
19
21. In the affidavit the KMC also indicated the non-
cooperation of the Metro Railway for removal of waste and installation of stainless steel nets as permanent solution for dealing with the waste collected underneath the metro station.
22. A further updated report was filed with the KMC in a tabulated form as under :-
Updated Report on Tolly'sNullah S. Key Authority Time Target for Remarks No. Component of Concerned completion Action Plan
01. Dredging on KMC Initially started Dredging KMC area on 09.12.2019 in areas and is in within progress. Already the a substantial irrigation area have been and completed. waterway s departme nt already complete d.
02. Cleaning of KMC The work was Work is garbage and taken up in May, going on debris from 2019 and to be ceaseless water body, continued in a ly and to slopes and regular manner. be banks within continued KMC area. .
03 Removal of KMDA
encroachment informed
that DPR
for
resettlem
ent of
432
numbers
of
dwelling
units in
Ward no.
113 and
114 and
sent for
funds to
Governme
nt of
India.
Further
shifting
20
and
resettlem
ent of 96
dwelling
units are
to be
construct
ed by 18
months
after
receiving
of land
complyin
g all
formalitie
s from
DM (south
24
Paragana
s) Land
Departme
nt,
Governme
nt of
West
Bengal
according
ly a letter
has been
issued
vide no.
Con./
Com/41/
NGT - Ad
Ganga OA
No. 12-
2015/202
0-21
dated
26.06.20
20 by
Municipal
Commissi
oner.
04 Fencing and KMC Fencing. KMC have
beautification Date of undertak
of the commencement en for 2.4
encroachment 10.11.2019. 70% km
free stretches of the fencing stretch
on both work has been
banks. completed. Rest
will be completed
by 31.12.2020
after
repairing/rectific
ation of
damaged portion
due to AMPHUN
05 Sewerage KMC Total 77 nos. of
discharging toilets have been
into the river constructed in
various locations
in Ward No. 115,
116 88, 73, 74,
75, 80 along the
stretch and hence
disconnected
from river bed
06 STP KMC Date for Tender
opening is fixed
on 30.09.2020
07 Setting up of KMC Completed
21
Orange
Composter in
04 temple
areas
08 Awareness KMC Awareness
programme are
being
implemented and
continued on "
daily basis.
23. The non-cooperation of the Metro Railway Station was also reiterated. We find that the approach of the Kolkata Metro Rail Corporation Limited to be quite remarkable in not extending its cooperation. Leave alone maintaining the Tolly's Nullah flowing under the elevated corridor and stations, even laying stainless steel net across the Nullah and making payment towards the cost of cleaning, de-silting and widening of the Nullah have been refused. As a public agency, the Kolkata Metro Rail Corporation is obliged to extend its support in these activities in the interest of the environment and the health of the general public. The Amicus Curiae in its affidavit affirmed on 02.07.2020 has referred to order dated 16.08.2001 of the Hon'ble Kolkata High Court in Writ Petition (No. 2094(w) of 2001) in which the question raised was with regard to the construction of pillars at the middle of Adi Ganga from metro rail which reads as under:-
Para-2 "It is also pointed out that all technical redressal had been addressed to avoid silting of the nullah as well as to ensure feasibility of future dredging. It is also pointed out that the Metro railway has agreed to the proposal of extra-widening and lining of the nullah as proposed by the Irrigation Department it is also pointed out that the Metro Railway has engaged M/s M.N. Dastur and Company Ltd. for carrying out Environment Impact Assessment in connection with the extension. It is also pointed out that the Chief Engineer, Metro Railways has issued a clarification that they will not disturb a huge thickly populated 22 residential area on either side of the tolly nullah and the proposal to run the train through the Tolly's nullah has been accepted. It is also pointed out that the provision of the Environmental Act is not applicable to the construction of the Railway Project."
Para-5 "It is true that the construction of the Metro Railway Project is also a public project for the welfare and benefit of the public. However, such developmental work should also work harmoniously with the environmental causing as far as possible less harm to environment."
Para6 "We hope that the Railway Administration will certainly abide by the advice given by M/s M.N Dastur & Company on their Study and Assessment of the Environmental Impact of this Project."
24. The Amicus Curiae further states before the High Court the Amicus himself as the Petitioner, had objected to the piers being constructed on river bed of Adi Ganga which led the High Court to pass the above orders. However, the Metro Railway had gone further to build stations/platforms on Adi Ganga blocking the natural flow of water for which removal of the blockage caused by the solid waste collected underneath the metro stations/platforms has become difficult.
25. Although it is the case of the metro railway that the constructions had been done with the approval of the Government in the year 1999, it is not clear as to whether a detailed Environment Impact Assessment (EIA) had been carried out in respect of the project having regard to the fact that at that time the Environment Impact Assessment Notification, 1994 was in force. There can be no doubt that raising piers in the middle of the river and construction of elevated large platforms/stations over the Adi Ganga will have grave adverse impact on the 23 environment due to blockage caused to the natural flow of the river as well as other hydrological impacts . It defeats all sense of logic as to how such construction could have been allowed. That apart concretisation of the banks of the river including its bed has been permitted underneath the elevated platforms/stations. This clearly indicates that no EIA had been carried out because had it been so, such constructions would not certainly come up. It is still not too late in the day for taking remedial measures. The metro railway cannot shy away from its responsibility. The activities of the metro railways are not purely commercial as it has public element being a public sector undertaking.
26. As the blockage of the river underneath the station and around the piers had been caused by the construction of the structures by the metro railways, it has to be held responsible for the pollution.
27. In OA No. 506/20191 it has been observed as follows:-
"Legal position in this regard is well settled. In Vellore Citizens Welfare Forum vs. Union of India (UOI) and Ors 2 , the Hon'ble Supreme Court interpreted "Polluter Pays" principle by stating that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation.
Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the 1 Mukund Dhote vs Union of India & Ors.2
(1996) 5 SCC 647 24 damaged ecology. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect.
It was further observed on the basis of principle laid down in M.C. Mehta and Anr. vs. Union of India and Ors., 4 that a person undertaking an activity involving hazardous or risky exposure to human life is strictly liable for injury suffered by another person, irrespective of any negligence or carelessness on part of the managers of such undertaking. Pollution cannot be allowed to be profitable activity. The environment is priceless. Intentional violations have to be visited with more stringent damages than accidental or unintended."
28. The situation in the present case is not different. It is, therefore, imperative and incumbent upon the metro railway to take all steps and measures to ensure that the Adi Ganga remains free of obstructions caused by solid waste collected underneath its stations and around the piers and cannot abdicate such responsibility by throwing it upon the Kolkata Municipal Corporation. Considering the given circumstances, we deem it necessary to direct the metro railway to workout measures for ensuring abatement of pollution caused by solid waste and to undertake regular de-silting and cleaning all along the stretch where the piers raised and metro stations have been constructed.
29. In view of the resume of facts set out above, we deem it necessary to direct as follows:-
25
I. All efforts shall be made to ensure restoration and rejuvenation of the Adi Ganga. There shall be concerted efforts made by all the concerned authorities, namely, the Department of Environment, the Department of Irrigation and Water Resources, Government of West Bengal, Kolkata Municipal Corporation and the State Pollution Control Board.
II. The STPs proposed at Russa Road South, 1st Lane, KIT Scheme No. 118 handed over to the KMC on 26.07.2017, one at Garia which is the KMC's only land and at Chandi Ghosh Road, Ward No. 27, shall be expeditiously and as far as it may be practicable within 31st December, 2020.
III. The exercise for removal of all encroachments on the banks of the Adi Ganga and the related rehabilitation of the displaced persons shall be completed within six months from hence. For this purpose the onus shall be upon the State Government to identify suitable land. Use of the land of the KOPT may be negotiated by the State Government at the highest level of the administration in order to ensure expeditious completion of the exercise. This is necessary as it 26 is said to be linked with the funds provided by the NMCGA.
IV. The area of the river Adi Ganga shall be demarcated and the river made clear of silt and hydrophytes. This action shall be for the entire stretch of the river and not just confined to Garia onwards.
V. The Kolkata Municipal Corporation shall prepare an action plan to deal with the accumulation of solid waste underneath the elevated station and around the piers expeditiously in consultation with the KMC and the State Pollution Control Board but not later than one month and implement the same within next month following at its own cost.
VI. The State Pollution Control Board shall exercise its statutory powers conferred upon them under the Air and Water Acts against the metro railways for making the stretch of the river affected by the piers and the elevated stations clear of all obstructions caused by solid waste.
Appropriate measures shall be prescribed for ensuring that solid waste does not flow underneath the elevated railway stations for which the metro railway stations shall be made responsible to ensure regular clearance and de-27
siltation of the stretch within the area covered by the stations. The KMC shall collaborate with the efforts of the metro railway.
VII. The entire project for cleaning Adi Ganga shall be completed in terms of the action plan submitted by the Chief Secretary strictly within the stipulated time frame.
VIII. The NMCG shall explore possibility of releasing the funds approved for the project having regard to the importance of the Adi Ganga and the necessity for its speedy restoration and rejuvenation in the interest of the environment.
IX. The State Pollution Control Board shall maintain strict vigil and be diligent in ensuring that the removal of the solid waste and diversion of the sewage from the Adi Ganga is completed expeditiously. While discharging this responsibility, the State PCB shall be at liberty to take coercive action against those violating the Environmental norms which may include assessing and recovering environmental compensation for the damage caused.
X. In order to ensure compliance of the directions, we deem it necessary to constitute a Committee comprising of the following:-28
(i) The Additional Chief Secretary /Principal Secretary, Department of Environment.
(ii) The Additional Chief Secretary /Principal Secretary, Department of Irrigation and Water Resources.
(iii) Chairman/Member Secretary or an Officer of equivalent rank, Kolkata Municipal Corporation.
(iv) Director General of Tolly's Nullah Project.
(v) The Head of the Kolkata Metro Railway or his Senior Representative.
(vi) West Bengal State Pollution Control Board.
XI. The Kolkata Municipal Corporation shall be the nodal agency for coordination. The Chief Secretary shall supervise the function of the committee and oversee the progress made in the project.
30. It may be observed that Adi Ganga is one of the polluted river stretches in the country identified by the Central Pollution Control Board. The matter relating to the polluted river stretches is being considered in OA No. 673/2018 in which periodical reports have been called for. 29 The reports filed by the State of West Bengal in respect of Adi Ganga are expected to be consistent with the ground realities and in accordance with the facts arising in the present OA. The case is listed for further consideration on 16.02.2021 before Court 1.
31. The KMC shall pay a sum of Rs. 50,000 to Mr. Subhas Datta, Amicus Curiae for the assistance rendered to the court in the case. With the above directions, the OA stands disposed off.
32. Further, a report of compliance shall be filed by the committee by email at [email protected] on or before three months preferably on or before 04.02.2021.
33. In the event of there being failure on the part of the authorities to comply with the above directions, we grant liberty to the Amicus Curiae to approach this Tribunal with an application in the form of an OA.
S.P. Wangdi, JM Dr. Nagin Nanda, EM 21st September, 2020 Original Application No.12/2015 (EZ) pk