National Green Tribunal
Giriraj Parikrama Sanrakshan Sansthan vs State Of Rajasthan on 19 July, 2019
Item No.01 to 03 Court No. 2
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 229 of 2013
(M.A. Nos. 736 of 2013, 194 of 2014, 211 of 2017, 216 of
2017, 363 of 2017, 478 of 2017, 519 of 2017, 652 of
2017, 514 of 2018, 1183 of 2018, 1360 of 2018, 1400 of
2018, 1737 of 2018, 1742 of 2018 & I.A. Nos. 144 of
2019, 145 of 2019& 157 of 2019)
With
Original Application No. 280 of 2017
(M.A. No. 529 of 2017)
With
Execution Application No. 19 of 2018
In
Original Application No. 24 of 2016
Giriraj Parikrama Sanrakshan
Sansthan & Ors. Applicant(s)
Versus
Department of Environment &
Forests & Ors. Respondent(s)
With
Dwaikadham-Radhika Dham Resident
Welfare Trust Applicant(s)
Versus
Mathura-Vrindavan Development
Authority &Ors. Respondent(s)
With
Giriraj Parikrama Sanrakshan
Sansthan Applicant(s)
Versus
State of Rajasthan & Ors. Respondent(s)
Date of hearing: 19.07.2019
CORAM:
HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Applicant(s) Mr. Bhuvan Ravandran and Mr.
Sarthak Chaturvedi, Advocates
Mr. Rajesh Kr. Lawania, Advocate
1
For Respondent(s) Mr.Pradeep Misra and Mr. Manoj
Kumar Sharma, Advocates
Mr.Amit Tiwari, Advocate
Mr. Vishal Mehhwal, Advocate for
Ms. Padhmalakshmi Iyengar, AAG
Rajasthan
Mr. Kartikey Sharma and Mr. B.B.
Sharma, Advocates
Mr. Shashank Saxena Advocate for
Mr. Ardhendumauli Kumar Prasad,
Advocate
Ms. Akansha Singh, Advocate for
Mr. Vishwajit Singh, Advocate
Mr. Rajkumar, Advocate for CPCB
Mr. Ranjesh K. Sinha, Advocate
ORDER
1. This matter has come up before us today for consideration of the affidavit filed by Mr. A.K. Awasthy, Additional Chief Secretary, Government of Uttar Pradesh. On 27th June, 2019, we had directed him to file a personal affidavit before the next date of hearing giving the details with respect to steps taken till now for constitution of a Shrine Board and giving reasons and difficulties which prevented the State Government from constituting it so far.
2. The original application was finally decided on 04.08.2015, in view of the recommendations as well as acceptance of the same by the respondents. The acceptance of the recommendations came from the State Government, when the Learned Counsel appearing on its behalf submitted that "he is instructed by Mr. P.K. Singh, RO, UPPCB, Mathura, Mr. Anil Kumar, Executive Engineer, PWD and Mr. N.K. Jaanu, District Forest Officer, Mathura. Upon instructions, 2 he makes a statement that the State of Uttar Pradesh accepts the recommendations made in the inspection report of the inspection conducted on 20th March, 2015 which have been reproduced herein below, and further assures that the same shall be adhered to and executed in true letter and spirit in the interest of environment, in and around Shri Giriraj Parvat and Parikrama Marg, Govardhan, District Mathura."
Further, it was recorded in the said order that "the applicant expresses satisfaction with the statement made on behalf of the Respondent State and its limbs, Respondent Nos. 1 to 5. Learned Counsel appearing for Respondent No. 6-MoEF, Government of India submits that they shall join and cooperate with the State of Uttar Pradesh in executing the recommendations in true letter and spirit." The Tribunal observed, "we hope and trust that the concerned authorities shall fix the priorities in appropriate sequence and take effective steps in execution of these recommendations expeditiously. Periodical report of the execution of these recommendations shall be filed by the State of Uttar Pradesh through District Magistrate, Mathura, every three months before the Registry of the Tribunal. Liberty is granted to the applicant to 3 point out if there is any laxity on behalf of these stakeholders in execution of these recommendations."
The matter was then kept on 17th November, 2015 for monitoring the progress, in respect of the execution of the order dated 04.08.2015.
3. It would be relevant to mention here the recommendation (no. xvii) regarding constitution of the Shrine Board:
"xvii. An independent organisation on the lines of other Shrine Board in the country may be constituted for the proper management of this religious place, providing all the required facilities and maintain and upkeep the sanctity of holy places/kunds, cultural heritage, environment protection, sanitation, pollution control, eco-balance of the green cover which includes kund, pokhar, talab and jhari and related aspects."
4. At this juncture, it would be appropriate to mention here the provisions of Law under National Green Tribunal, Act, 2010, which are relevant for adjudication of the present case.
Section 19 of the National Green Tribunal, Act, 2010 provides for procedure and powers of the Tribunal. 4 The provision of sub Section 5 of Section 19 reads as under:
"(5) All proceedings before the Tribunal shall be deemed to be the judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974)."
In respect of execution of award or order or decision of the Tribunal, Section 25 of the National Green Tribunal, Act, 2010 provides thus:-
"(1) An award or order or decision of the Tribunal under this Act shall be executable by the Tribunal as a decree of a civil court, and for this purpose, the Tribunal shall have all the powers of a civil court.
(2) Notwithstanding anything contained in sub-section (1), the Tribunal may transmit any order or award made by it to a civil court having local jurisdiction and such civil court shall execute the order or award as if it were a decree made by that court.
(3) Where the person responsible, for death of, or injury to any person or damage to any property and environment, against whom the award or order is made by the Tribunal, fails to make the payment or deposit the amount as directed by the Tribunal within the period so specified in the award or order, such amount, without prejudice to the filing of complaint for prosecution for an offence under this Act or any other law for the time being in force, shall be recoverable 5 from the aforesaid person as arrears of land revenue or of public demand."
The National Green Tribunal, Act, 2010 also lays down penalty for failure to comply with the orders of the Tribunal. Section 26 of National Green Tribunal, Act, 2010 provides as under:
"(1) Whoever, fails to comply with any order or award or decision of the Tribunal under this Act, he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten crore rupees, or with both and in case the failure or contravention continues, with additional fine which may extend to twenty-five thousand rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention: Provided that in case a company fails to comply with any order or award or a decision of the Tribunal under this Act, such company shall be punishable with fine which may extend to twenty-five crore rupees, and in case the failure or contravention continues, with additional fine which may extend to one lakh rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention."
5. The Tribunal had constituted a Committee on 22.08.2017 to file a report in respect of compliance of the 17 directions given in the judgment dated 4th August, 2015. The relevant part of the said order is as under:
"We are of the opinion that local inspection will be necessary. We had already appointed a 6 Commission vide our order dated 28-07-2015 constituting committee of the following:
1. Mr. Swami Gyan Swarup Sanand,
2. Mr. U. N. Singh, Additional Director, CPCB,
3. Mr. R. K. Singh, Regional Officer, UPSPCB, Mathura,
4. Mr. Sunil Prakash, Assistant Engineer, UP PWD,
5. Mr. Rajnish Sharma, Executive Officer, Goverdhan Nagar Panchayat to visit along with Mr. Rahul Shukla, Advocate, Mr. Anand Gopal Das.
The committee had submitted the report to the Tribunal on this issue. Thus, it will be appropriate that the same committee visits with exception if any of the member who is not available. Hence, we reappoint the following.
1. Mr. Swami Gyan Swarup Sanand,
2. Mr. A. B. Akolkar, Member Secretary, CPCB(even if retires, in his personal capacity),
3. Mr. R. K. Singh, Regional Officer, UPSPCB, Mathura(former)and Mr. Arvind Kumar, Regional Officer, UPSPCB, Mathura(present),
4. Mr. Sunil Prakash, Assistant Engineer, UP PWD,
5. Mr. Rajnish Sharma, Executive Officer, Goverdhan Nagar Panchayat
6. Ms. Katyayni, Adv.,
7. Ms. Parul Gupta, Adv.,
8. Mr. Ravindra Kumar ,Adv.,
9. Mr. Rahul Khurana, Adv.
10. Representative of the State Government. Apart from the Members Mr. Rahul Shukla, Advocate and Mr. Anand Gopal Das may also be present during the inspection and assist the committee or furnish such information as may be required by the committee. Mr. Arvind Kumar, Regional Officer, UPSPCB, Mathura(present), shall be the nodal officer who shall coordinate with the members of the Committee and ensure that the date and time of the inspection is duly intimated to all concerned well in advance and every step is taken for smooth conduct of the local inspection and furnishing of the report."
The said Committee visited Goverdhan on 03.09.2017 to inspect compliance of the directions passed by the Tribunal on 04.08.2015. It had made 7 several observations/recommendations and in clause no. 33, it was stated that "Shrine Board when constituted should ensure that revenue generated from temples to be utilized for development and maintenance of public services." (Page no. 1010)
6. The matter was thereafter listed from time to time and progress reports were called for. Such reports were filed, on behalf of State of Uttar Pradesh, through their officers. We may now consider few of the progress reports which were submitted before the Tribunal. An order was passed on 22nd August, 2017 and a status report, in compliance of it, was filed by Ajaypal Singh, Deputy Secretary Tourism, Govt. of Uttar Pradesh on 9th October, 2017. (page no. 978 of record) In respect of issue no. 17, it had been mentioned as under:
"For the development of all the pilgrimage sites of Goverdhan and Braj an institution has been constituted in the name of Braj Teerth Vikas Parishad Honourable Chief Minister of State of UP is its Chairman and one full time Deputy Chairman, and one Chief Executive Officer have been appointed for this purpose.
Apart from above for the proper administration and settlement of issues regarding a separate Shrine Board for management of 3 temples situated at Goverdhan Parikrama Path (namely Shri Giriraj Mukharbindu Danghati; Shri Giriraj Mukharbindu Dashbiswa Goverdhan and Shri Giriraj Mukharbindu Jatipura Temple Bill, 2017 is under process, which will be take 08 months to be processed subject to the passage of the Bill."
In other words it was made clear that though 'Teerth Vikas Parishad' had been constituted but for 8 proper administration and settlement of issues creation of separate Shrine Board for management of three temples situated in Goverdhan Parikrama was under
process.
7. An affidavit was filed on 06.01.2018, (page no.
1076) by Mr. Ajay Pal Singh, Deputy Secretary, Tourism Department, State of Uttar Pradesh. It had been deposed therein that "Apart from above for the proper administration and settlement of issues regarding a separate Shrine Board for management of 3 temples situated at Goverdhan Parikrama Path (namely Shri Giriraj Mukharbindu Danghati; Shri Giriraj Mukharbindu Dashbiswa Goverdhan and Shri Giriraj Mukharbindu Jatipura Temple Bill, 2017 is under process, which will take 08 months to be processed subject to the passage of the Bill."
8. Thereafter the same officer had filed an additional affidavit on 12th March, 2018 (page no. 1233) to bring on record further compliance on behalf of the State of Uttar Pradesh. In the compliance report, at issue no. 17, after referring to the institution constituted in the name of Brij Teerath Vikas Parishad, it has been stated that "it is submitted that answering respondents are sensitive, sincere and committed for preservation of environment and shall take all necessary measures 9 for the implementation of the Judgment pronounced by this Hon'ble Tribunal in letter and spirit."
9. Mr. Ajay Pal Singh, Deputy Secretary, Department of Tourism had filed a compliance report, on behalf of State of Uttar Pradesh, on 14th May, 2018 (page no. 1309) at clause 17 sub-clause 2. It had been stated "it is submitted that this Hon'ble Court vide order dated 4th May, 2018 directed the State of Uttar Pradesh to furnish the list of waterbodies in Giriraj Parikrama along with their current status and assessability. It is submitted that there are 16 kunds/ponds in Giriraj Parikrama. The comprehensive list is annexed herewith. It is submitted that these kunds are accessible to public at large. There are encroachments on three ponds as detailed in the list. An action in accordance with the law will be taken expeditiously."
In clause 3 "it is submitted that answering respondents are sensitive, sincere and committed for preservation of environment and shall take all necessary measures for the implementation of the Judgment pronounced by this Hon'ble Tribunal in letter and spirit."
10. Status report was again filed on behalf of State of Uttar Pradesh on 14.09.2018 (page no.1482) in compliance of order dated 10.08.2018. It is stated therein that "the Tribunal vide order dated 10th August, 2018 directed the State of Uttar Pradesh to submit 10 specific replies in respect of the compliance of 17 recommendations detailed in the order of 4th August, 2015 along with reply to specific replies made in the report of the Learned Court Commissioner." In compliance of the order, a report was filed. In respect of clause 17, it was stated as under:
"It is submitted that for holistic planning and development of pilgrimage sites of Goverdhan and Braj area, an institution namely Braj Teerth Vikas Parishad has already been constituted by way of an amendment in the Uttar Pradesh Braj Planning and Development Board Act, 2015."
"It is submitted that essentially, the aforesaid Parishad is not a Shrine Board when compared to other Shrine Boards such as Shri Mata Vaishno Devi Shrine Act, 1988 or The Nathdwara Temple Act 1959 as it does not take over the management of temples. However, the Parishad not only has been entrusted with functions to prepare a Braj Development Plan but also has powers and functions under section 13 and 13 respectively to take up any work/project in order to promote and secure the development, re-development and beautification of any area in the entire braj region."
"However, the Ld. Chief Secretary in the meeting held on 16.08.2018 has directed Department of Religious Affairs to take immediate appropriate steps for constitution of a Shrine Board for management of religious places in Parikrama Marg 11 keeping in view the litigation already pending with regard to the three shrines and to take up rehabilitation of such persons who are traditionally providing services to the temple."
Along with the status report dated 14.09.2018 filed by Deputy Secretary, Tourism Department, minutes of meeting held on 16th August, 2018 (page no. 1493) have been appended. In para 15, it has been mentioned that this work shall be got done by the proposed Shrine Board.
11. Similarly, compliance affidavit filed by Deputy Secretary, Tourism Department on 15th September, 2018, same thing has been reiterated in clause 5 of the minutes of meeting held by Chief Secretary on 16.08.2018 which is also appended therewith. (page no. 1610)
12. In compliance of the order of the Tribunal dated 14th December, 2018, an affidavit was filed on 02.01.2019 (page no. 2058) by Mr. Avinesh Kumar Awasthy, Additional Chief Secretary, Government of Uttar Pradesh:
"2. The captioned matter is pending adjudication before this Hon'ble Tribunal wherein compliance of order dated 04.08.2015 and subsequent orders passed by this Hon'ble Tribunal is being adjudicated upon. This Hon'ble Tribunal vide order 14.12.2018 directed me to file an affidavit in respect of steps taken and the progress made regarding constitution of Shrine Board. This affidavit is being filed in compliance to direction passed vide order dated 14.12.2018.12
3. This Hon'ble Tribunal vide order dated 04.08.2015 directed the State of Uttar Pradesh to constitute an independent organization on the lines of other Shrine Board for the proper management of Parikrama Marg and temples around it. In order to ensure compliance, the State of Uttar Pradesh constituted an institution namely Braj Teerth Vikas Parishad by way of an amendment in the Uttar Pradesh Braj Planning and Development Board Act, 2015 for holistic planning and development of pilgrimage sites of Goverdhan and Braj area. It is submitted that essentially, the aforesaid Parishad is not a Shrine Board when compared to other Shrine Boards such as Shri Mata Vaishno Devi Shrine Act, 1988 or the Nathdwara Temple Act, 1959 as it does not take over the management of temples. This Hon'ble Tribunal thereafter directed State of Uttar Pradesh to constitute a Shrine Board for parikrama marg and its shrines."
13. It has been reiterated on behalf of the State Government that essentially the aforesaid Parishad is not a Shrine Board when compared to other Shrine Boards. It is also stated that pursuant to meeting held by the Chief Secretary on 16th August, 2018, the Department of Religious Affairs had decided to enact a comprehensive act. Further it is mentioned that to facilitate the rehabilitation of such persons who are traditionally providing services to temple will also be made.
14. Similar averments have been made in the status report dated 31.01.2019 (page no.2112) filed on behalf of State of Uttar Pradesh. Under clause 17, it has been stated as follows:
"It is submitted that for holistic planning and development of pilgrimage sites of Goverdhan and Braj area, an institution namely Braj Teerth Vikas 13 Parishad has already been constituted by way of an amendment in the Uttar Pradesh Braj Planning and Development Board Act, 2015. However, this Hon'ble Tribunal directed the answering respondent to constitute a Shrine Board for parikrama marg and temples around it. The Ld. Chief Secretary in the meeting held on 16.08.2018 has directed Department of Religious Affairs to take immediate appropriate steps for constitution of a Shrine Board for management of religious places on Parikrama Marg keeping in view the litigation already pending with regard to the three shrines and to take up rehabilitation of such persons who are traditionally providing services to the temple. It is submitted that substantial progress in respect of recommendation mandating constitution of Shrine Board has also been made."
15. It was on 1st February, 2019 that the Additional Chief Secretary had appeared before the Tribunal. There was detailed consideration in respect of compliance of the recommendations made by the Committee which would substantially affect the environment. He had stated that to constitute a Shrine Board the process has already started. Further, he had submitted that a draft has been prepared and processed through inter- department consultation and now it has to be placed before the Cabinet. He had also submitted that before that, some information with regard to the assets of the temple are required to be collected. Such information is to be received from the Receivers of the two temples -Civil Judges, as appointed by the High Court. The third temple of Jatipura is also under Receiver-the Tehsildar, as ordered by Sub-Divisional Magistrate. The required information of the said temples 14 have already been sent by the Receivers. With regard to the temple of Dhanghati and Mukharbind Mansi Ganga, the Civil Judge would be asked to send the required information within one week, as the matter is of urgency and relates to welfare of the public at large. It was further submitted that after receiving the information, the matter would immediately be placed before the Cabinet for its approval and thereafter to the Secretariat for legislature.
Accordingly, "we had directed the Additional Chief Secretary to have the complete information as well as the approval of Cabinet within a period of 15 days. Thereafter, we expect that the State of Uttar Pradesh would to take up the Bill on the floor of the Legislative Assembly/Parishad in the next session."
"The Additional Chief Secretary has candidly submitted before us that other issues such as financial sanctions which are pending before the State Government shall be cleared by 15th March, 2019."
16. In our order dated 27th June, 2019, we had taken into consideration various environmental issues such as sewage connections, encroachment on forest land, large scale of illegal construction on Giriraj Parvat, which is a Reserved forest, unsystematic drainage system, mismanagement of garbage and municipal solid waste 15 etc. which have not been properly taken care of by the Government/Municipalities/Gram Panchayat. We had reiterated that in order to channelize and regulate pollution to the environment, there is a need of proper administration in Govardhan by constitution of a Shrine Board. After the statement having been made before us on 1st February, 2019 that constitution of Shrine Board would be expedited and sufficient time having been passed, but the Shrine Board was not constituted, therefore, we had directed the Additional Chief Secretary to file a personal affidavit, in the matter of constitution of Shrine Board and to give reasons and difficulties which prevented the State Government from not doing so till date.
17. It is noteworthy that in para 2 of the affidavit filed by the Additional Chief Secretary on 15.07.2019, it has been deposed that "this Hon'ble Court vide order dated 27.06.2019 directed me to file an affidavit in respect of steps taken so far for constitution of Shrine Board and also to give reasons and difficulties which prevented the State Government from not constituting a Shrine Board till now."
The deponent has further stated in para-3 that "for development of Parikrama Marg and Shrines around it, draft Bill titled 'The Uttar Pradesh Religious Places Planning and Development Bill, 2019' has been prepared. The same will be placed before the 16 Cabinet for its approval. It is submitted that the meeting of the Cabinet is generally convened on Tuesday. In order to place aforesaid Bill before the Cabinet, certain pre-requisites are being undertaken. It is further submitted that 15 days time is required for placement of the Bill before the Cabinet."
From the affidavit filed by the Additional Chief Secretary it is pertinent to note here, as the deponent himself had stated that there were two things which were very specific in the order dated 27.06.2019 in respect of which the affidavit was to be filed. Firstly, the steps taken so far for constitution of the Shrine Board. Secondly, to give reasons and difficulties which prevented the State Government from not constituting the Shrine Board till now. In so far as constitution of the Shrine Board is concerned, it was recommendation (xvii) made by the Special Committee constituted by the Tribunal which was accepted on 4th August, 2015. As regards second part of the order dated 27.06.2019 nothing has been deposed in the affidavit. Therefore the Additional Chief Secretary does not give any reason or difficulty which prevented the State from constituting a Shrine Board till now.
No reason whatsoever has been given by the deponent as to why he has deviated from the statement made by him before the Tribunal on 01.02.2019. It had 17 transpired on the said day that he would collect the required information for the purpose of constituting a Shrine Board and obtain approval of the Cabinet within 15 days.
Surprisingly, the affidavit filed by Additional Chief Secretary mentions about the draft Bill for Uttar Pradesh Religious Places Planning and Development Bill, 2019. The title of the Bill itself indicates that it is for Uttar Pradesh Religious Places for Planning and development. The Deponent does not mention about a Bill for Shrine Board for the temples at Giriraj Parvat in the town of Goverdhan. Therefore, the Bill of 2019 does not fall within the ambit of the order passed by the Tribunal on 04.08.2015. It is prima facie established that the Additional Chief Secretary, for that matter the State of Uttar Pradesh have failed to comply with the orders of the Tribunal passed while decided the Original application on 04.08.2015. It is significant to note that the State had accepted the order of the Tribunal and promised to execute the same in letter and spirit. A bare reading of the affidavit shows that the order of the Tribunal dated 04.08.2015 is being sought to be circumvented and bypassed. Such an act of the State of Uttar Pradesh is contrary to the very intent and purpose of the order passed by the Tribunal, which was accepted to by it, on 04.08.2015. 18
18. It is pertinent to note here that the Senior Officer of State of Uttar Pradesh posted as Additional Chief Secretary has submitted an affidavit before the Tribunal on 15th July, 2019 with the request of extension of 15 more days to complete the process because certain pre-requisites are being undertaken and then the same will be placed before the Cabinet. But the fact is, as orally informed by the Learned Counsel for State of Uttar Pradesh, that the said Bill was very much before the Cabinet on 15th July, 2019 and it is said to have been declined on that day. We fail to understand as to why prayer was made in the affidavit for extension of time which was filed on 15th July, 2019 and rejection by the Cabinet comes on the same day, before the case was taken up by the Tribunal. As soon the case was called on 19.07.2019, the Counsel for State of UP gave the information about Cabinet decision. We are also informed that the Cabinet meeting of the State of Uttar Pradesh otherwise usually takes place on Tuesday.
19. In view of the recommendations made by the Committee the original application was decided on 04.08.2015 and the same was accepted by the State Government. Likewise, on behalf of MoEF&CC- respondent no.6, it was submitted that they shall join and cooperate with the State Government in executing the said recommendations. The Tribunal had, thereafter, 19 with the hope and trust on the State Authorities, directed to take it up on priority and effective steps be taken to execute the recommendations. The State Government through District Magistrate, Mathura was to file report, every three months before the Registry about the execution of the recommendations. The Tribunal had also constituted a Committee in August, 2017 to submit report with regard to compliance of the directions given by the Tribunal, while deciding the original application. After visiting the site on 03.09.2017 the Committee submitted a report wherein it was specifically stated that constitution of Shrine Board would ensure that the revenue generated from the temples would be utilized for its development.
A status report was also called for and the same was filed by the Deputy Secretary, Tourism on 09.10.2017 mentioning that for proper administration and settlement of issues regarding a separate Shrine Board for temple at Goverdhan Parikarma Path, Shri Giriraj Mukharbind Danghati, Shri Giriraj Mukharbind Dashbiswa Goverdhan and Shri Giriraj Mukharbind, Jatipura Temple Bill, 2017 is under process. In the subsequent report of 06th January, 2018, the aforesaid averments were reiterated. Similarly, in the affidavits of 12th March, 2018 and 14th May, 2018, it was mentioned that the respondent-State is sensitive, sincere and committed for preservation of 20 environment and shall take all necessary measures for implementation of judgment( 14.08.2015) in letter and spirit.
The Chief Secretary in the meeting held on 16.08.2018 directed the department to take immediate steps for constitution of Shrine Board for management of religious places in Parikarma Marg. The minutes of the said meeting have been filed with the status report dated 11.09.2018. On 02.01.2019, an affidavit was filed, incompliance of the order of 14.12.2018 by the Additional Chief Secretary, Government of Uttar Pradesh deposing that Brij Teerath Vikas Parishad had been constituted by amending Uttar Pradesh Brij Planning and Development Board, Act, 2015 for development of pilgrimage sites of Goverdhan and Brij areas. However, it has been further deposed that essentially the said Parishad is not a Shrine Board as it does not take over the management of the temples. But Tribunal had directed the State to constitute a Shrine Board for Parikarma Marg and its Shrines. In the status report of 31.01.2019 it has been mentioned, inter-alia, that progress in respect recommendations mandating constitution of Shrine Board has also been made. Thereafter, on 01.02.2019, when Additional Chief secretary had appeared before the Tribunal, it was 21 stated that to constitute a Shrine Board the process has already started.
But despite of aforesaid categorical commitments by the State and its authorities the affidavit filed by the Additional Chief Secretary mentions about the draft bill for Uttar Pradesh Religious Places, Planning and Development Bill, 2019. It indicates that the bill is not about the Shrine Board for Giriraj Parvat and the Shrines in Parikarma Marg in the town of Goverdhan. The Respondents have not abided by their commitments and assurances which they had given for execution of the judgment dated 04.08.2015. If case according to them the Bill of 2019 is a one, in compliance of the aforesaid judgment, then they are trying to circumvent order of 04.08.2015 which was also accepted by them. The respondents given an assurance that they would comply with the order of 04.08.2015 in letter and spirit.
20. It is significant to note here that the Hon'ble Supreme Court had also taken a serious note of environment conditions, as back as in the year 2002, at Radha Kund/Shyam Kund in Goverdhan, particularly to the encroachments which were being done by the people after destroying the water bodies which are ancient monuments. In case of M.C. Mehta Vs. Union of India (WP(c) No. 13381/1984), in its order dated 14.04.2002. The observations made by 22 Archeological Survey of India had also been taken note of.
The relevant extract of the order passed by Hon'ble Supreme Court in the case of M.C. Mehta (supra) are as under:
"16. That a forest belt measuring about 10 acres situated on the northern side of Astha Sakhi Kund in plot No.27 of Non-Zamindari Abolition Area (NZA) of Town Radha Kund map, has been recorded in the Records of Rights as "Jhari" (Forest). This area was full of different varieties of trees which increased the panoramic view of Astha Sakhi Kunds as well as Shri Shyam Kund and Shri Ratha Kund. The standing trees have been cut and removed. Similarly the talab (pond) land bearing Khasra No 20, 30 and 41 measuring 9.81 acres is being encroached, filled with earth and being sold illegally for housing purposes. These plots/lands have also been classified as "un- cultivable land" and also recorded as Tank(Talab) in the Record of Rights. The character of land as manifest from the record of Rights is clear as the same has been reserved for uses by the General Public for their common good i.e. for the conservation of water resources, protection of environment and enhancement of spiritual values and cultural heritage. In short, 23 places of National importance as the Astha Sakhi Kunds, Balram Kund and Bhanokhar religiously known to be of great significance where millions of pilgrims during the course of their parikarma of 'Giri Raj Goverdhan" or otherwise take a holy dip for purification of their hearts and souls, are being encroached. The acts of such unscrupulous land encroachers are creating an ecological imbalance, destruction of cultural heritage by filling up these Kunds and converting them for housing purposes.
That the Department of Archaeological Survey of India despite knowing the importance of historical monuments and cultural heritage sites within the Taj trapezium has not been able to protect Astha Sakhi Kund, Balram Kund and Bhanokhar from encroachments, illegal constructions and defilement of the Kunds.
17. That Shri Shyam Kund and Shri Radha Kund are filled with water drawn from Astha Sakhi Kunds comprising Plot No.30 and 41. Further, since last 500 years, there is a channel connecting Astha Sakhi Kunds with Shri Shyam Kund and there is a bridge over the channel and in front of this bridge, there is de-silting pocket, where the water is stored, purified and let into 24 Shri Shyam Kund through the channel. Further, since time immemorial, there has been close inter-connections between Astha Sakhi Kund, Shyam Kund and Radha Kund. And in case such encroachments of filling up these tanks with mounds of earth for converting it into house sites is not checked, the Astha Sakhi Kunds will become extinct from the landscape making the Shyam Kund and Radha Kund 'high and dry', as its perennial source of feeding with fresh water would be stopped.
18. That an inspection of the area was done on 14.5.2000 and 17.5.2000 by Sh. R. D. Paliwal, Additional District Collector, Mathura. In his letter/report to the District Collector, it has been stated that-
"....The Astha Sakhi Kund which is situated towards Konai Mahal, situated in Radha Kund Town area and is in Khewat No. 1/2, Khata No, Gata No.20-A, 30 and 41. From the abovementioned kund, the Lalita Kund which in reality is desilting chamber, the rain water is being poured to Radha Kund and Krishna Kund. In the revenue records the abovementioned pond is registered in Gata No.20A, 30 and 41 which has a total area of 9.81 acre. Because of 25 insufficient rain during previous year, the pond is dried up and towards East-North and South of the pond, the process of filling up of the pond is going on at faster rate and after levelling of the land the plotting works are going on at faster scale. In the abovementioned pond, the part of land have already been sold to different persons and three houses and boundary wall with doors have already been installed...." The report further says- "....The ponds are unauthorisedly being filled and plotted is being done. The ponds are being filled and plotted claiming to be a personal property, however, under the UP Tenancy Act, the ponds can neither be sold nor purchased. If the land had been taken beyond the purview of zamindari, the same would have devolved to the Gaon Sabha.....The aforementioned constructions are going on without authorization of Town Area Committee, which is an irregularity'. From the above it is clearly evident that the Authorities are in know of the illegal activity being carried out by the anti-social elements. The encroachment and illegal construction has not stopped so far resulting into serious damage to the ecology and cultural heritage of the place. 26 Photocopy of the letter to the District Collector of Mathura and other papers forms annexure II collectively.
19. The Archaeological Survey of India in its report dated 2.1.1999 has stated as under :
"During the course of inspection and survey, it was revealed that this area is a holy place since ancient period for the followers and believers of Vaishnav Radha-Krishna Sect. The holy place was re-established by Vaishnavi Saints, Shri Chaitanya Mahaprabhu and other saints and worshippers of that Sampardaya of medieval period and as a result of the persistent customary worshipping attached with the area for last 300 years, this area has evolved as a main Vaishnav Tirath and customary cultural religious place of Northern India. It was found during the course of survey that Shri Radha Kund and its co-attached Astha Sakhi Kunds are approx. 300 years old whose construction were made of mixtures of Lakhori bricks, chuna and surkhi along with other building material of other medieval period. There is a water accumulated area spread over 10 acres, attached with these Kunds. There is a Well which is constructed of lakhori bricks situated between the water accumulated areas and the Kunds. There is 27 an ancient desilting chamber for desilting stored water out of the Kunds. There is a - 7 - provision of sliding gate in between the Kunds and desilting pocket for filling and holding the water in the Kunds.
This monument is the only example of the then architectural construction of water-tanks and which in its originality is necessarily required to be primarily preserved and safeguarded in future.
It is, therefore, proposed that these monuments and co-attached areas be declared protected, so as to maintain its ancient structure and immediate orders be passed by the Competent Authority for restraining the extensive encroachments by constructions in the areas, so as to preserve and safeguard the monuments."
The Superintending Archaeologist in his letter dated 11.4.2001 to the Director, Archeological Survey of India stated that "Astha Sakhi Kund which is situated in Mauja Radha Kund, Distt. Mathura, historically it is very relevant and important site. It is situated in Khasra Nos.20, 30 and 41 and is fit to be protected. At present there are possibilities of unauthorized encroachments on the site at the hands of anti-social elements. It is 28 thus requested that immediate Preliminary Notification be issued of the above mentioned Khasra Nos. so as to protect the important cultural heritage."
The Archaeological Survey of India is feeling helpless despite knowing fully that an important place of cultural heritage is being destroyed systematically and its ecology is seriously being damaged. A copy of the letter from K.P. Poonacha, Director (Monuments) to Shri S.N. Sahai, Deputy Secretary, Prime Minister's Office, a report of inspection from Sh. Dharam Veer Sharma, Superintendent, Archaeology, Agra and letters to the Director General and Director Monuments forms annexure III (collectively)."
Considering the above facts stated above we direct the Commissioner of Agra Division, District Collector of Mathura and Superintendent of Police, Mathura to take appropriate and immediate action for removal of any - 8 - encroachment in the area mentioned above."
21. We would also like to mention here that the entire process for constitution of Shrine Board was ordered, to be expedited also because of large gathering at Goverdhan throughout the year and round the clock. 15th July, 2019 (Poornima) was an auspicious day when lakhs and lakhs of people assembled to pay their respect 29 to the deity. Many a times statements had been made by various departments, including the local administration as well as the police regarding proper managements. The ground reality has been witnessed by many people including media persons who were there on that day. It was a gathering where not an inch of space was available. As reported by media, with photos, a human chain was seen in the entire Parikrama marg, which is of 21 kms.
22. There was no arrangement whatsoever by the local administration to meet the situation of such large number of people. So far as vehicular traffic is concerned, it had been seen, through print media that there was no organized parking, no arrangement for traffic control was made for the special occasion, and a large quantity of municipal solid waste and garbage was lying here and there. The garbage was there even in the temple of Dhanghati, so much so that the floor had become extremely slippery and it is only by grace of God that there was no stampede. The local administration itself had witnessed the situation more than anyone else. It is said, as reflected from the print media, that arrangement of about 700 safai karamchari was made but on the ground they were hardly 70 of them. One can visualize as to what was the condition of air quality and that of drinking water. The entire area was highly 30 polluted because of the heavy vehicular traffic. However, the things would be more clear when we receive the report of Court Commissioner who was present in Parikarma during that period.
23. Despite of unhygienic condition, the local administration did not wake up. It is universally known that Goverdhan is a place of pilgrimage where 24/7 and throughout the year millions of people visit and do parikrama. On occasion of Purnima, Ekadashi etc., the strength of pilgrims increases many folds. So far as gathering of pilgrims on Mundiya Purnima (15.07.2019) is concerned, it is uncountable. It would be more than Kumbh Mela. The simple reason is that gathering at Kumbh Mela is only once in 12 years but Giriraj Parvat is a place of pilgrimage where lakhs visit every day and Parikarma continues day and night. But even then the administration of State of Uttar Pradesh did not consider it necessary to make proper arrangements on the occasion with top most priority.
24. The amount of difficulty and suffering which the people at large had to face in the area, particularly at Dhanghati and Mansi Ganga is beyond imagination and cannot be compensated. But the local administration was not to bother about it. It was for all these reasons that the Committee had recommended to have a proper legally established Board for the management and development of this Holy place. The State Government of 31 Uttar Pradesh has not considered it necessary to take immediate steps to comply with the directions of the Tribunal which were accepted by them and more than four years have already passed.
25. We have considered the aforesaid facts and circumstances which clearly shows the manner in which steps have been taken by the State of Uttar Pradesh for compliance/execution of the directions/order passed by the Tribunal on 4th August, 2015. Every time when Tribunal had reminded the State Government and its officers for compliance, assurances had been given that creation of Shrine Board is under process. We were told that certain procedures are required to be followed and therefore time was being sought again and again. But even after grant of time the State of Uttar Pradesh has not established Shrine Board as of now. Despite passage of nearly four years, the required legislation has not been brought by the State Government. Now it is more than clear that statements and assurances given on behalf of the Government and by its Senior Officers were empty promises. In fact the Tribunal had been kept in dark and mislead even by officers of the rank of Additional Chief Secretary, so much so, that no steps had been taken to legislate Shrine Board for Giriraj Parvat.
26. Aforesaid facts goes to show that the State of Uttar Pradesh and its officers had deliberately and willfully did not comply with the order of 04.08.2015, which had 32 been accepted by them at the time decision and committed openly to comply it, in letter and spirit. In the garb of another bill of 2019 the Tribunal was being informed that Legislation of Shrine Board for Giriraj Parvat is under process. It was shocking to note that Additional Chief Secretary, by way of affidavit, sought fifteen days time on 15th July, 2019 and simultaneously the matter was placed before the Cabinet on the same day, which was not a scheduled one. This tantamounts to be fraud to the Court.
Moreover, the bill which was declined by the Cabinet was not the one, in compliance of directions 17 of the order of Tribunal dated 04.08.2015. The fact remains that even today no steps have been taken by the Government of Uttar Pradesh to establish Shrine board for Goverdhan Parvat.
27. However, before proceedings further, we direct Mr. A.K. Awasthy, Additional Chief Secretary to be present before the Tribunal on the next date of hearing and to bring the entire record in respect of the Bill which is titled as "Shri Giriraj Mukharbind Danghati, Shri Giriraj Mukharbind Dashbiswa Goverdhan and Shri Giriraj Mukharbind, Jatipura Temple Bill, 2017."
28. As we have narrated above, the directions given by the Tribunal was on the basis of the recommendations of the Committee, to which the State Government had categorically accepted, so much so that they had stated 33 in the Court that the directions shall be complied with letter and spirit. The developments are said to have taken place since 4th August, 2015 and the information given to the Tribunal that the issue was taken up even upto the level of Chief Secretary, we fail to understand as to why the direction of the Tribunal had not been complied with so far. It is to be noted that State of Uttar Pradesh is the Chief Minister along with his Council of Ministers and the Executive, headed by the Chief Secretary. It was equal responsibility of the Executive to have complied with the directions issued by the Tribunal and on some occasions the Additional Chief Secretary did appear before the Tribunal and assured that process would be completed at the earliest. In fact on 1st February, 2019, he had categorically stated before the Tribunal that the process shall be completed within 15 days. The steps in respect of compliance of the order of the Tribunal and the progress made by the State Government definitely reflects that the compliance of the order has not been made till date on some pretext or the other.
29. We were also informed in the beginning of the hearing that the Bill has been declined by the Cabinet. As given in the affidavit of the Additional Chief Secretary, the Bill is "The Uttar Pradesh Religious Places Planning and Development Bill, 2019". Looking to the 34 direction given by the Tribunal on 4th August, 2015 and various statements made on behalf of the State Government as well as its officers, from time to time, clearly shows that the legislation which was to be brought about was with regard to establishment of the Shrine Board. Therefore, any Bill in any other form being brought by the State Government does not amount to compliance in accordance to directions given by the Tribunal.
30. In the instant case the execution of the direction of the Tribunal which was to be done by State of Uttar Pradesh has rather not taken proper steps to comply /execute the orders passed by the Tribunal on 04th August. Therefore, we direct the Chief Secretary to explain, as to why the directions of the Tribunal dated 4th August, 2015 has not been complied so far, particularly when a clear commitment was made by the Government that the same would be executed expeditiously and in letter and spirit.
A copy of this order be sent through e-mail to the Secretary to the Hon'ble Chief Minister, State of Uttar Pradesh, Chief Secretary and Additional Chief Secretary Shri A. K. Awasthy, State of Uttar Pradesh, forthwith.
List this matter on 31st July, 2019.
Raghuvendra S. Rathore, JM Dr. Satyawan Singh Garbyal, EM July 19, 2019 SN 35