Orissa High Court
The Nationalist Lawyers Forum vs State Of Orissa And Others ......... ... on 27 February, 2012
Author: B. P. Das
Bench: B. P. Das
ORISSA HIGH COURT: CUTTACK
W.P.(C) No. 20283 of 2011
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
The Nationalist Lawyers Forum ......... Petitioner
-versus-
State of Orissa and others ......... Opposite parties
For the petitioner : M/s. Nishikanta Mishra, G.R.
Verma, A.K. Mohapatra, N.K.
Mohapatra, D. Mohapatra, U.N.
Sahoo,-2, P.K. Panda, K.
Bhuyan, M. Mishra, T.K. Sahoo.
For the opposite parties : Advocate General &
Sisir Das, Addl. Government Advocate.
(O.Ps. 1, 2 and 4)
Mr. S.D. Das, Asst. Solicitor General
(O.P.3)
Mr. D. Mohapatra
(O.P.5)
Mr. S.K. Nayak, Senior Advocate
(O.P.6)
Mr. S.K. Padhi, Senior Advocate
(O.P.8)
Mr. Sanjit Mohanty (Senior Advocate), Mr. Satyajit
Mohanty, R.R.Swain and S.
Patnaik
(O.P.9-Intervener)
2
Mr. J. Pattnaik, Senior Advocate, B. Mohanty, T.K.
Patnaik, A. Patnaik, R.P. Roy,
M.S. Rizvi & B.S. Rayaguru
(O.P.10-Intervener)
PRESENT:-
THE HON'BLE SHRI JUSTICE B. P. DAS
AND
THE HON'BLE SHRI JUSTICE M. M. DAS
Date of Judgment: 27.2.2012
B. P. Das, J. This writ application has been filed by the
Nationalist Lawyers Forum, in the shape of Public Interest
Litigation, alleging therein that an illegal and unauthorized
construction is going on in Mahanadi river bed, portion of which is known as Hadiapatha (low lying land), which is adjacent to the river embankment.
In support of its contention, the petitioner had annexed the extracts of the news items published in the widely circulated Oriya daily, 'The Samaj', dated 23.7.2011, 26.7.2011 and 27.7.2011, which reveal that the alleged construction is a potential threat to the Cuttack Town and will damage the entire area which is full of fruit bearing and other trees and gives an impression of a small jungle inside the city. The said area is connected to the ring road by a narrow road.
3
In the news item it is indicated that before 11 years, it was decided by the State Government to develop the area by way of undertaking aforestation in and around it in order to strengthen the embankment as well as ring road that runs around the Cuttack city, from the eventuality of flood, which strikes Cuttack city in every one or two years.
In view of such, a prayer has been made by the petitioner to prohibit any construction in the Mahanadi river bed near Hadia Patha in any manner and to direct for an inquiry by the Central Bureau of Investigation, so as to bring into light as to how the Government property went to the hands of Public Enterprises.
Learned counsel for the petitioner produced the photographs of the marble plaque which shows that a Joint Venture Project of Indo-Canada Environment Facility-IIT (Kharagpur) and CMC was inaugurated on 11.11.2001 by the then Urban Development Minister, Shri Samir Dey, in presence of the then MLA Sushree Nivedita Pradhan and the then Chairman, CMC Shri Ashirbad Behera.
The affidavit filed by the Commissioner-cum-Secretary Housing & Urban Development Department discloses that the aforesaid project is for execution of plantation work in different locations as per the Memorandum of understanding (MOU) singed 4 between Cuttack Municipal Corporation, Cuttack, IIT Kharagpur, University of Western Ontario, Canada with funding from India Canada Environment Facility (ICEF), New Delhi and Canadia International Development Agency (CIDA) on the project "Land Restoration through waste Management in India".
It is also alleged by the petitioner that the area is just in between the river-bank road and the river. The construction work was continuing over the said area without any permission from the authorities concerned including CDA.
When this matter was taken up on 29.7.2011, this Court issued notices to the opposite parties therein and directed the Collector & District Magistrate, Cuttack and Cuttack Development Authority to immediately stop construction over the disputed land on the Mahanadi River bed at Hadia Patha. The Deputy Commissioner of Police was directed to find out the person, who was carrying out the construction work.
After issuance of notice, one M/s Indian Oil Corporation Limited, Paradip Refinery Project, Jagatsinghpur and one Lanco Infratech Limited, head Office At Plot No. 270, Phase-II, Udyog Vihar, Gurgaon having its Site Office at Mahanadi Vihar, Cuttack filed respective applications to intervene in this case. The intervention petitions are allowed and the parties were arrayed as opposite parties 9 and 10.
5
An affidavit is also filed by the Collector and District Magistrate, Cuttack, wherein it is indicated that the Collector, Cuttack earlier had sanctioned 7 Acres of Government land in mouza unit No.4, Mahanadi-I, Cuttack Town pertaining to Plot No.96/121 comprising of Ac.0.170 dec and Plot No.95 (Part) Ac.2.830 dec under Anabadi Khata No.2 in lease Case No. 20 (u)/03 and Plot No.95 (part) Ac.4.000 dec under the same Anabadi Khata No.2 in lease case No.23 (u)/06 of Cuttack Sadar Tahasil totaling Ac.7.000 dec. in favour of IDCO, Bhubaneswar for the purpose of installation of Water intake Facility by Indian Oil Corporation Ltd. for supply of water from river Mahanadi to the Oil Refinery Project at Paradeep subject to payment of premium of Rs.21,00,000/- @ Rs.3.00 lakhs per acre as fixed by Government in the IPR-2003 along with annual ground rent as well as cess as admissible. But during handing over possession of the sanctioned area the IDCO Authorities objected that the land is lying in river water and hence unsuitable for the purpose for which the lease has been sanctioned. Subsequently IDCO filed fresh lease requisition for an alternative area of 7 Acres adjacent to the area earlier sanctioned in respect of Plot No.93/121 ac. 2.290 dec and Plot No. 94(part) Ac. 4.710 dec under Anabadi Khata No.2 in Mouza Unit No.4, Mahanadi-I, Cuttack Town. Accordingly the Government in Revenue & Disaster Management Department have 6 been moved vide District Office Letter No.563/Rev dated 25.2.2010 for fixation of premium of the said 7 Acres of land. After fixation of premium the advance possession sanctioned would be regularized by way of lease in favour of IDCO after deposit of the estimated amount.
In the said affidavit, it is further indicated that in a meeting held on 4.8.2009 under the Chairmanship of the Chief Secretary Orissa, it was decided as follows:-
"On the issue of allotment of 7 Acres of land near Jobra Barrage, it was informed by the Managing Director, IDCO that during filed visit he has found a portion of the land earlier identified covers the river which is unsuitable for the purpose and accordingly an alternative site has been located. He has mentioned that it will be possible for the Tahasildar to handover the land within seven days."
During the course of hearing many questions were raised objecting the construction, for which this Court vide order dated 29.8.2011 directed the State Government, CDA and the CMC to clarify on the following points.
"(1) The CDA shall produce the existing as well as proposed/revised Comprehensive Development Plan (CDP) by the next date.7
(2) The Settlement Officer, Cuttack, shall file an affidavit furnishing details as to when the Kissam of the land in question was converted into Abadayogya Anabadi and what was its earlier Kissam.
(3) From the photographs of the marble plaque produced by the petitoner, it appears that a Joint Venture Project of Indo-Canada Environment Facility-IIT (Kharagpur) and CMC was inaugurated on 11.11.2001 by the then Urban Development Minister, Shri Samir Dey, in presence of the then M.L.A., Sushree Nivedita Pradhan and the then Chairman, CMC, Shri Ashirbad Behera with the heading "MAHANAGAR NIGAM GREEN BELT".
Let the Secretary, Housing and Urban Development, file an affidavit indicating the total money received by the State Govt. for the aforesaid project and the manner in which the same was spent.
(4) The D.C.P., Cuttack, shall take effective steps to protect and preserve the aforesaid marble plaque and ensure that the same is neither destroyed nor removed by any miscreant."
On 13.9.2011, the Planning Member of the C.D.A appearing in person submitted that as per the old Interim 8 Development Plan (IDP) the area known as Hadia Patha including the disputed land has been marked as 'river' whereas in the new Comprehensive Development Plan (CDP), which is at the stage of finalization, the said area has been mentioned as "Recreation Zone".
During the course of hearing many questions were raised including the question whether the drawal of water from Jobra Barrage at Cuttack, which is also the main source of supply of drinking water to Cuttack and Choudwar, will affect the supply of drinking water. Whether the drawing of water will affect the two canals, i.e. Kendrapara and Taladanda which supplies water to vast track of agricultural land in the undivided Cuttack District and whether the said area will starve for water during the lean season. Over and above this, it is also alleged that the trees which have densely grown in that area will be affected by the alleged construction.
At this juncture, it would be proper to mention about Cuttack City, its location and its topography.
As described by Prof. Manmath Nath Das;
The City of Katak, recently famous as a millennium city of India was the centre of wider region, the antiquity of which goes back to the neolithic ages. The City itself enjoys a situational location which is rare and unique in an otherwise riverline Orissa. It is situated between the river Mahanadi and its tributary 9 Kathjodi and is provided with traditional defence system of ancient times when for any enemy forces to cross a river was a difficult problem. It is not for nothing that Katak remained the Capital of Orissan kingdom since early middle ages.
As described by Prof. N.K. Mahalik and Sri R.K. Kar;
"Mahanadi river which has its origin in the highlands of Madhya Pradesh and passes through the central mountainous part of Orissa has to divide into branches as it met a coastal depression at Naraj where its gradient was lost and so also its carrying capacity. Some of the load was shed to build the apex and the remaining load was distributed through two major channels, the Mahanadi in the north and the newly formed Kathjodi in the south. The primitive delta was built by these two channels, which include the area now occupied by Katak. Suitable land in this primitive delta provided opportunity to build human settlements.
Near Cuttack there are anicuts across Mahanadi and its branch, the Birupa river. One of such anicuts is Jobra Anicut, wherefrom two canals originates, one is Taladanda canal, which commands over 300 Sq. Km (The Imperial Gazetter of India) and the other is Kendrapara canal.
Mentioning of the aforesaid fact is only for the purpose of indicating the location of Cuttack and dependence on various 10 canals originate from the reservoir, which in turn irrigates a large extent of agricultural land in undivided Cuttack District.
Drawal of water by IOCL without making any effort for improvement of the barrage, removal of shoals, dredging of the area in order to improving the water retaining capacity of the reservoir, will ultimately deprive the people of undivided Cuttack District from water for their irrigation as well as the people of the city from the drinking water for which Jobra barrage is their last hope.
Opposite party No.9-IOCL, filed an application for modification/vacation of the interim order dated 29.7.2011, in which it has been indicated that the IOCL is a Public Sector Undertaking of the Government of India and is setting up a Grass Root Refinery cum Petrochemical Complex named as 'Paradip Refinery Project' for processing 15 Million Metric Tonne per Annum Crude Oil including LPG dispatch facility and associated marine facilities namely SBM, Jetty and crude product pipeline at Abhayachandrapur, District-Jagatsinghpur, Orissa at an estimated cost of Rs.29,777 crores.
Mr. Mohanty, learned Senior Advocate submits that Paradeep Refinery Project is a project of national importance, which was envisaged by Government of India through Ministry of Petroleum & Natural Gas in Public Interest and more particularly 11 to cater to the needs of nation for petroleum products which is an essential commodity.
According to him, they have submitted application before the Water Resources Department, Government of Orissa for drawal of water for its Crude Oil Refinery Project from upstream Mahanadi Barrage. The Government of Orissa approved the location of water off take facility towards end point downstream of Spur No.2 from Mahanadi Right Bank between Matamatha and Gadagadia Mandir, for installing necessary facilities for pumping of water for Paradip Refinery Project.
His further stand is that Government of Orissa in Water Resources Department has accorded in principle permission in favour of IOCL to draw 40 Million Gallons of water per day, from upstream Mahanadi Barrage from the year 2009 with condition that the same is subject to availability of water during the non-monsoon and lean period and permission has also been accorded for construction of head works and control mechanism, i.e. intake well, pump house and other related facilities.
According to them, they have obtained land from IDCO and thereafter floated tender for Transportation of Water from Mahanadi River at Cuttack to Paradip for Paradip Refinery Project on Build-Own-Operate-Transfer (BOOT) basis and M/s Infrastructure Leasing & Financial Services Limited (IL&FS Ltd.) 12 being the successful tenderer was issued with Letter of Acceptance on 26.11.2009 for execution of (a) Intake structure and allied facilities, (b) laying of pipeline from Cuttack to Paradip and (c) various facilities inside Paradip refinery project area. Accordingly, they have taken over the land in February, 2010 and started the construction work and laying of pipe line.
Admittedly, the IOCL has not taken any permission from the CDA for making the civil construction over the area, which comes within Cuttack Municipal Corporation on a plea that since permission has been taken from Water Resources Department, to which the land belongs, for construction of civil work, no permission from CDA was required.
It is submitted by Mr. Mohanty, that all steps have been taken not to affect the environment so also not to damage the tree growth of those area and not to cause damage to Cuttack city, in any manner, so far as its embankments are concerned.
The prayer made in the application filed by opposite party no.9 for vacation of interim order was not allowed, however, the hearing was expedited.
There are several technical questions raised by the petitioner including the question of availability of water from the reservoir, which has not been dredged since its inception and the Old Anicut which has remained sub-merged and has not been 13 removed for which water retaining capacity of the reservoir has gone down and that the people of Cuttack City will suffer as they will not get drinking water during the lean season. Another point was also raised that the construction of civil work will not only destroy the river bed, but also it is feared that it may destroy the embankment totally, which may endanger the Cuttack city.
While hearing the misc. case filed by opposite party no.10-Lanco Infratech Ltd. on 29.9.2011 it has been indicated thus:-
"To our query, Sri Sanjit Mohanty, learned senior counsel for O.P.9-IOCL, submits that if ultimately it is found that the disputed land is permissible for construction in question, the IOCL is ready to spend over the peripheral developments including development and maintenance of the Embankment/Ring Road, dredging of the river bed from Naraj up to Jobra Anicut in ordr to enhance the water retaining capacity of the Barrage and supply of dirking water from its Intake Well Project to the Cuttack P.H. That apart, the IOCL is also ready and willing to improve the health care in Cuttack City.
The willingness shown by the IOCL for undertaking the aforesaid peripheral developments is quite appreciable but all depends upon whether the construction can be made without endangering the river embankment.
Mr. Padhi, learned counsel submits that the matter may be referred to a technical committee for expert opinion.
This aspect shall be considered on the next date.
Mr. G.R. Verma, learned counsel for the petitioner submits that the effort of the IOCL is laudable provided that the construction is permissible on the disputed land."14
On 25.11.2011, the following points were formulated for opinion of experts committee.
"1. Whether the construction of head work and controlling mechanism will in any manner affect embankments on both side as well as the course of River Mahanadi ?
2. Whether the construction will affect the canals which usually get water from river Mahanadi from Jobra Barrage for the purpose of irrigation ?
3. Whether the construction will affect supply of drinking water to Cuttack City as well as the ground water level of the area.
4. Whether the reservoir requires a thorough dredging of the river from Naraj to Nobra along with the progress of the work.
5. Any other suggestion that will be made by the Expert Committee for water retaining capacity."
After hearing all the parties, and considering the names suggested by the parties to be the members of the Expert Committee, a Technical Expert Committee was constituted and the following order was passed.
"After considering the names of the experts furnished by learned counsel for the parties, we constitute Technical Expert Committee with the following persons.
1. Er. S.M. Patnaik, Former Chief Engineer of Public Health and presently Member Appellate Authority constituted under the Water (PCP) Act, Bhubaneswar.
2. Er. Baidhar Panda, Chief Engineer & Basin Manager, Lower Mahanadi Basin, Bhubaneswar.15
3. Er. Sridhar Behera, Former Engineer-in-Chief (P&D), Nuasahi, Near Kalinga Stadium, Bhubaneswar.
4. Er. Sudhakar Patri, Former Chief Engineer, Water Resources Department, Plot No.656/3392, Behera Sahi, Bhubaneswar-12
5. Er. Raghunath Prasad Das, Former Engineer-in-Chief, Water Resources Department.
Er. S.M. patnaik shall be the Chairman of the aforesaid Technical Expert Committee and the Superintending Engineer, Water Resources, Eastern Circle, Cuttack, shall be the Nodal Officer of the Committee. The Committee shall submit its report to the Court within a period of three weeks from the date of communication of the order. The first sitting of the Committee shall be held within seven days from the date of communication of the order.
The petitioner, the IOCL and the State Government shall furnish their respective views to the Committee.
The State Government shall inform the Committee whether the old Anicut has been completely removed."
On 18.1.2012, the Report of the Technical Expert Committee was produced before this Court.
The Report of the Technical Expert Committee, being relevant to the adjudication of the case is reproduced hereinbelow:-
"REPORT OF TECHNICAL EXPERT COMMITTEE CONSTITUTED BY HONOURABLE ODISHA HIGH COURT IN W.P.No.20283 of 2011 (The Nationalist Lawyers Forum Vrs. State and Others) Preamble:16
Honorable High Court of Odisha vide their order dated 25th Nov 2011 in W.P.No.20283 of 2011 constituted a Technical Expert Committee with the following persons.
1. Er.S.M.Pattanaik, Former Chief Engineer of Public Health and presently Member, Appellate Authority constituted under the Water (PCP) Act, Bhubaneswar ...... Chairman
2. Er.Baidhar Panda, Chief Engineer & Basin Manager, Lower Mahanadi Basin, Bhubaneswar ....... Member
3. Er.Sridhar Behera, Former Engineer-in-Chief (P&D), W.R. Department, Odisha, Bhubaneswar ... ... Member
4. Er. Sudhakar Patri, Former Chief Engineer,Water Resources Department, Odisha, Bhubaneswar ..... Member
5. Er. Raghunath Prasad Das, Former Engineer-in-Chief, Water Resources Department, Government of Odisha, Cuttack ...... Member Superintending Engineer, Eastern Circle, Water Resources, Cuttack was ordered to be Nodal Officer of the Committee.
Honorable High Court formulated five specific points on which opinion of the technical experts was called for. The report of the Committee was to be submitted within period of three weeks, which on request from the Committee was subsequently extended up-to 18th Jan 2012. Report:
The Committee had five meetings on 3rd Dec 11, 13th Dec 11, 20th Dec 11, 29th Dec 11 and 6th Jan 12. In the first meeting, the Committee visited the site of construction of Intake well, Pump House and other related facilities located downstream of high level spur nO.2 at Hadia Patha location.
During second and third meeting the Committee received the written submissions and heard the views of Shri Nishikant Mishra, Secretary Nationalist Lawyers Forum, on behalf of the Petitioner and 17 representatives from Indian Oil Corporation Ltd. During the fourth meeting the Committee heard the views of Engineer-in Chief, Water Resources, Odisha representing the Government of Odisha in respect of the present case. In the fifth meeting held on 6th Jan 2012, the Committee received the written submission from Mahanadi Banchao Andolan The list of documents, notes received and reviewed by the Committee from different Authorities is enclosed as Annexure-I. History of the case:-
1. Vide letter NO.lrr-II-HKD-7/2000/16627 dated 28th April 2000, Govt of Orissa, Department of Water Resources was pleased to allow MIS Indian Oil Corporation to draw 15MGD of water from river Mahanadi close to Mahanadi Barrage to meet the operational requirement for Eastern India Refinery Project at Paradeep. It may be mentioned that the location of water off-take facility towards end point downstream of spur nO.2 from Mahanadi right bank between Matamath and Gadagadia Mandir was approved with the stipulation that the spur No.2 with top level at RL.24.50m (the level, length & alignment fixed as per model study at CWPRS, Pune) against highest flood level(HFL) of RL.23.35m at the location, will be used as approach road, pipe lines etc laid downstream of spur and raw water off-taking platform located leaving free board of 1.50m above H.F.L.
2. Vide Letter No.lrr-II-WRC-42/06 -19672 dated 19.06.2006, Govt of Orissa in Water Resources Department have been pleased in principle to accord necessary permission in favour of Indian Oil Corporation Ltd to draw 40MGD(73.2cusec) of water from upstream of Mahanadi Barrage from the year 2009 for their proposed Refinery Complex at Paradeep subject to availability of water without assurance during non monsoon & lean period. It was mentioned in the terms and conditions that for 18 construction of head works and control mechanism i.e. intake well, pump house and other related facilities, the IOL will get the land leased in their favour through lDCO.
3. Vide Letter NO.lrr-II-WRC-187/09-32442 dated 04.12.2009, Govt of Orissa in Water Resources Department have been pleased to revalidate the previous order issued in favour of Indian Oil Corporation Ltd for drawal of 40MGD (73.2cusec) of water from upstream of Mahanadi Barrage for their Crude Oil Refinery and Petrochemical Complex at Paradeep subject to availability of water in river Mahanadi during non-
monsoon & lean period. It was mentioned in the terms and conditions that for construction of head works and control mechanism i.e. intake well, pump house and other related facilities, the IOL will get the land leased in their favour through lDCO.
It is reported that lDCO has allotted 7.00acs of land in selected location of Pump House and other ancillary structures in Hadiapatha in favour of Indian Oil Corporation Ltd.
Engineer-in Chief, Water Resources, Odisha vide his letter NO.P-IWS- 122/07-7821 dated 7th June 2010 has accorded necessary permission for construction of intake well and laying of raw water pipe line by M/s IOCL with some stipulations. Executive Engineer, Mahanadi South Division, Jobra has also vide his letter no4172 dated 24th Aug 2010 has issued necessary provisional permission for laying raw water pipe line by IOCL with some conditions specified.
Construction of the Intake structure and allied facilities including Intake well, Pump house, Sedimentation Chamber and Control Room was under
progress. Hearihnch the Case No. WP (C) NO.20283 of 2011, filed by The Nationalist lawyers Forum Vrs. State and others, Honorable High Court has stayed construction activities at the present site and in their order 19 dated 25th Nov 2011 constituted the Technical Expert Committee to examine the issue and give their opinion on five points formulated. The Committee examined the different documents available, heard the Petitioner, the IOCl and representative from State Government and considered the views offered by them. After considering all the above the Committee have concluded with following point wise opinion. Views on different stipulated points-
1. Whether the construction of head work and controlling mechanism will in any manner affect embankments an both sides as well as course of river Mahanadi?
River Mahanadi is about 2.00kms in width at the barrage site and the barrage was designed for a looseness factor of 3.25, with total length of 1928m. Though the length of barrage could have been reduced substantially, considering its effect on the railway bridge downstream, the length was kept same as the existing width of the river. To avoid formation of shoals upstream of the barrage in such wide river with its looseness of more than 3.00 and to make the flood flow perpendicular to the barrage model studies were taken up at the Central Water and Power Research Station (CWPRS), Pune. Based on the results of the model study (vide Specific Note N01985, letter No.31/12179-HAPT dated 19th Apr 1984 & Inspection note dated 11th May 84 of Review Panel Members), two numbers of high level deflecting/repelling spurs (known as Spur No.1 and Spur No.2) have been constructed on the right bank of river between Gadagadia Mandir to Jobra work shop. Length of upstream Spur No.2 is 990m into the river from the right bank of Mahanadi. The top level of the spur nO.2 is at RL.24.50m against highest flood level (HFl) of RL.23.35m at the location. In conjunction with spur nO.1 located almost 1050m downstream, the flow on the right flank of the river which would have otherwise hugged to the concave right bank and attacked it, 20 has been pushed to the main stream from almost 1 km upstream of spur nO.2 right up-to Mahanadi barrage. The two spurs have been constructed with the purpose of river training work to divert the flow of the river to the central portion making it perpendicular to 1928m long Mahanadi barrage which has high looseness factor, thereby improving co-efficient of discharge for better flood disposal, preventing formation of shoals and also preventing parallel flow close to the barrage. The area between the spurs is meant to be filled up on progressive deposition of silt. It has been observed that the· spurs have performed very successfully. The river flow has been diverted away from the right bank to the end of the spurs making flow perpendicular to barrage axis and the area between the spurs being filled up, specifically close to altered shore line. It may be pointed out that during the high floods in 1982 and 2008; flood flow did not overtop the spur nO.2. Designed Highest Flood level (HFl) of Mahanadi at Mahanadi barrage location is in consideration of reduced width of the river on construction of the Spurs nO.1 &2. location of the Intake Structure and allied facilities including Intake well, Pump House, Sedimentation Chamber and Control room is in area between the two spurs which is meant to be progressively filled up. Hence it is opinioned that the construction of head work and controlling mechanism will not in any manner affect the embankments on either side as well as course of river Mahanadi.
2. Whether the construction will affect the canals which usually get water from- river Mahanadi from Jobra Barrage for the purpose of irrigation?
As per the analysis done by Water and Power Consultancy Services Ltd (WAPCOS), based on daily discharge data from Mahanadi Barrage for period 1998 to 2007 collected from Mahanadi Barrage Division, Cuttack, the 75% dependable release from the Mahanadi barrage in non-monsoon 21 months, after meeting all the demands for irrigation, industrial and domestic use, was calculated to be 4054,3799,3522,2196, 1982,2341, and 2156cusec for the months of Nov, Dee, Jan, Feb, March, April and May respectively. The lowest average release was 1230cusec (34.63cumec) in the month of March 2003 (ref-Table no.3.4(A) and table No.3.5(A) of Vol-I of Final Report on Hydrological Study). The proposed drawal of 40MGD (73.2cusec) by Indian Oil Corporation Ltd (IOCl) for the Refinery Project at Paradeep is only 6% of the lowest monthly 95% dependable release of 1230cusec(34.63cumec) from the barrage to the downstream after meeting all the demand up-to the barrage. Using the Extreme Value type III distribution with frequency analysis of the minimum flow series, the 30 year and 50 year return period low flow from the Mahanadi barrage was estimated to be reduced 773.46cusec and 615.22cusec respectively after meeting drawal requirement of IOCl for the Refinery project.
Considering the monthly flow series at Naraj for the year 1969-70 to 2005-06, 75% dependable monthly flow for the non-monsoon months Nov to May is calculated to be 14338,8838,8981,8497,8677,9410 and 7647cusec respectively. Against this, drawal requirement for different purposes, irrigation, municipal and industrial/institutional (inclusive of IOl requirement) is indicated bellow.
Nov Dec Jan Feb March April May
75% dependable flow
at Naraj (cusec) 14338 8838 8981 8497 8677 9410 7647
Irrigation equirement
Delta Stage-I (cusec)- 3235 2878 3400 2556 611
Delta Stage-lI(cusec)- 2437 2167 2560 1925 593
(cusec)- 5672 5045 5960 4481 1204
Municipal demand
(cusec) 43 43 43 43 43 43 43
Industrial/
Institutional
22
(cusec)- 584 584 584 584 584 584 584
(Cusec)- 6299 5672 6587 5108 1831 627 627
Surplus for
downstream
Use (Cusec)-
8039 3166 2394 3389 6846 8783 7020
Thus the construction of the intake structure will not affect Delta Stage-I and Delta Stage-II irrigation supply.
3. Whether the construction will affect supply of drinking water to Cuttack city as well as ground water level of the area? As per the information received from the Superintending Engineer, Public Health Circle, Nayabazar, Cuttack, present water supply to Cuttack city is mostly ground water lifted from 142nos of bore wells. Present utilization is 101.71 MLD (41.82 say 42cusec): The drawal for Choudwar town from 19nos of bore wells is 2.0MLD (0.82 say 1cusec). The demand for Cuttack city is projected to be increased to 179.5MLD (73.80cusec) by year 2050.
As discussed in the previous para there is surplus water available in Mahanadi river even after meeting present demand for irrigation, municipal supply and the committed industrial infrastructural supply. Full drinking water requirement can be met from river Mahanadi on priority basis. Ground water recharge will not be affected as the pond level and area remains un-altered by the construction of Intake structure.
4. Whether the reservoir requires a thorough dredging of river from Naraj to Jobra along with the progress of work? 23 It may be mentioned that barrage is a diversion structure. The storage in the pond created upstream of the barrages may cater to the variation of inflow and outflow within short time span of one to two days only. The storage capacity is not considered for meeting drawal demand, which is dependant on the available flow in the river.
Crest of the barrage bays of Mahanadi barrage has been fixed at RL.18.50m, 1.10m lower than the crest level of old anicut (RL.19.60m). As per the drawings of Mahanadi Barrage (by CWC), based on model study reports of CWPRS, Pune, the old anicut was to be dismantled up-to upstream apron level of RL.17.20m. During construction of the barrage, dismantling was done in front of 8+8=16 sluice bays only out of total 95 bays. Immediately after operation of the barrage, formation of shoals in the up-stream pond and increased sediment inflow to the canal was observed. CWPRS, Pune was referred to study the effect of the non- removal of the old anicut bays and suggest remedial measures. In Specific Note.no.2777 dated 27.09.1990 and NO.2847 dated 16.04.1991, CPRS, Pune reported higher afflux upstream of the barrage due to formation shoals upstream of the barrage and recommended dismantling and removal of at least 12 bays adjacent to each of the left and right side divide walls in the first stage.
Gate Regulation Committee (1994) with representatives from C.W.C, Delhi and C.W.P.R.S, Pune, opined that shoal formation have increased due to existence of old anicut and recommended for dismantling the same.
Technical Advisory Committee (Major) in their 38th meeting held on 1ih Jan 2001, after detailed discussion agreed that dismantling of the old anicut in front of all spillway bays up-to RL.17.20m as per the original design is required. However in the first phase it was recommended to take up dismantling in front of 12 nos of bays adjacent to each of the left and right divide walls and 12nos in the central portion (total 36 bays 24 out of total 79nos spillway bays).
It was reported by Executive Engineer, Mahanadi Barrage Division, Cuttack that dismantling of old anicut in front of .36bays (Bays nO.24 to 43-20nos and Bays nO.61 to 76-16nos) has been completed during 2003-2005 and the debris removed from river bed. On enquiry as to why the location of the dismantling was not as per recommendations of CPWRS, Pune based on model study and the TAC(Major)' as mentioned above, the Executive Engineer explained. that Chief Engineer, Drainage, Odisha approved the location considering position of shoals formed in front of the barrage as on pre-monsoon of 2002.
The Committee after detailed discussion opinioned that even though the agradation of Mahanadi river arm after bifurcation of river Kathjori is a natural phenomenon considering the geomorphology of river, the old anicut existing in front of the barrage bays of Mahanadi barrage is major cause of formation shoals upstream of barrage, rising of river bed level, diversion of higher sediment load to river Birupa and in effect will cause rising of flood level. Therefore they recommend that dismantling of the existing old anicut in front of balance 43 bays up-to RL.17.20m (upstream apron level of barrage bays) should be taken up on priority basis. The shoals formed in the barrage pond if removed by dredging will increase the storage capacity of pond which will cater to the variation of inflow drawal within short span of one or two days. However formation of fresh shoal or deposit of sand in river bed can not be completely stopped. Removal of shoals close to the Mahanadi barrage will avoid cross flow close to upstream of barrage and hence improve its flood release capacity.
5. Any other suggestion that will be made by the Expert Committee for water retaining capacity .
25• Dissatisfaction arising from allocation of the water resource among the various conflicting interests in relation to their respective importance was brought to the notice of the Technical Committee. The Committee is of the opinion that comprehensive study of water availability during different periods and demands for different purposes like municipal supply, irrigation, power generation, ecological requirement, industriall institutional requirement etc for entire basin shoukJ be taken up keeping State Water Policy in view. Any further demand for industrial purposes should be examined in consideration to the availability after meeting the previous commitments and its effect on the overall scenario for the basin. Industrial Establishments may be encouraged to invest in water resources development in their own interest. • Government of Odisha, Department of Water Resources while issuing permission for drawal of water from the present source has stipulated condition that "the industry will have to show clearly as to what storage facility the company will create for the lean period and to what extent and how water is going to be recycled." As stated by representatives of IOCl no such arrangement has been made till date. IOCl should make necessary arrangement for the storage requirement for lean period and submit detailed report to the Government. • IOCl should not be allowed to construct any further structure in the area allocated, except the Intake well, Pump House, Sedimentation Chamber and Control Room Building which are under construction, without specific approval from Chief Engineer & Basin Manager, lower Mahanadi Basin. 26
• It is observed that there is wide gap between water availability derived from monthly flow data of Mahanadi at Naraj site and the data obtained from Mahanadi Barrage Division. Action should be taken to verify the same and set right available flow series.
• The operation of gates of Mahanadi barrage should be made aiming removal of shoals as far as possible. On development of downstream tail water level, the barrage bays in different locations should be kept opened.
(Er. R.P. Das) (Er. S. Patri) (Er. Sridhar Behera) (Er. Baidhar Panda) (Er. S.M. Pattanaik) Member Member Member Member Member"
After the said Committee Report was submitted, reactions/ suggestions were called for from the parties.
The petitioner as well as IOCL submitted their respective reaction/suggestions on the Report of the Technical Expert Committee.
The IOCL in its Reaction/Suggestion has indicated thus.
"Point No.1,2 & 3
Since the Committee has clearly indicted this issues, IOCL has nothing more to add.
Point No.4.
No Comment. It is noted that
a) removal of anicut has been considered by the
committee as urgent requirement to prevent
formation of shoals.
27
b) The shoals can be removed by proper operation of the gates."
Objections was also raised by the petitioner on the Report of Technical Expert Committee and in paragraph-5 of the said objection it has indicated thus:-
"That the Technical Expert Committee has made certain suggestions and pre-conditions before implementation of the project which are to be fulfilled first. Further the Indian Oil Corporation has not come out with any proposals to be made for the welfare of the Cuttack City.
On 13.2.2012, while hearing on the reactions/suggestions made by the parties to the Report of the Technical Committee, when it was decided that the old anicut is to be removed at the cost of IOCL, this Court required the presence of the Engineer-in-Chief and the Secretary, Water Resources Department, under whose administrative control the same was situated.
On 21.2.2012, the Secretary as well as the Engineer-in- Chief, Water Resources Department appeared before this Court. We heard them as well as learned counsel for the parties.
Another question was raised that the entire construction is unauthorized as no permission has been granted to the IOCL by the Cuttack Development Authorities, under the Orissa Development Authorities Act, 1982. 28
In this regard, Mr. Mohanty, learned counsel for the IOCL reiterated that no permission from the CDA is required to be taken since the land belongs to Water Resources Department, who has given permission to them.
We are not moved by the aforesaid submission of learned counsel for the IOCL for the reason that Water Resources Department has allowed for construction of the civil work with a condition to obtain the necessary permissions from the authorities concerned.
However, learned counsel for the IOCL submitted that IOCL has already applied for sanction of their plan before the CDA.
With regard to our query No.4, i.e. whether the reservoir requires a thorough dredging of the river from Naraj to Jobra along with the progress of the work, the opinion of Expert Committee was that dismantling of the existing old anicut should be taken up on priority Basis. The shoals formed in the barrage pond should be removed and a thorough dredging of the reservoir is required.
An affidavit was filed by the Engineer-in-Chief, Water Recourses Department, the relevant portion of which are quoted herein below:-
"2. That with regard to removal of shoals in the pond area of Mahandi barrage, a bathematic survey of the pond 29 area in the U/S of Mahanadi barrage is to be done and removal of shoals with proper dredging of the area are to be done at regular intervals. The cost of the pre survey, dredging and post survey are to be executed by M/s IOCL and the Department of Water Resources will supervise the work on dredging activities.
3. That with regard to removal of old Anicut, it is suggested that the balance removal of old Anicut up to the desired level are to be done by M/S. IOCL so as to facilitate improvement of pond area. This removal is required for restriction of further siltation in the pond area. Department of Water Resources will do the supervision and provide technical guidance to the work of removal of old Anicut. Control blasting with all precautionary measures under water should be executed keeping in view the safety without endangering the newly constructed existing barrage.
4. That with regard to strengthening of existing city protective embankment it is suggested that the usable earth from the dredging activities will be utilized for strengthening of the exiting city protective embankment. The unusable earth will be utilized for filling of low lying areas nearby area. Department of Revenue and Disaster Management and Department of Water Resources will demarcate the land and areas where unusable earth can be dumped. Suitable stone protection should be made so as to strengthen and restrain those earths in embankment.
5. That it is suggested by the Water Resources Department that since there will not be any water supply during the lean period, M/s IOCL will have their own reservoir near the plant area for utilization of water during those period.
6. That the periodical maintenance of dredging should be done in consultation with the Department of Water Resources. A corpus fund may be created from all the Industries including M/s IOCL so that the dredging activities and necessary improvement of the system can be met from this fund."30
Keeping in view the aforesaid fact and after going through the report of the Technical Expert Committee, we accept the Report and direct the followings:
(1) We direct the State Government as well as the IOCL to strictly adhere to the suggestion made by the Technical Expert Committee in Point No.5 of their report, as quoted above.
(2) As it is stated that the IOCL has already applied for permission before the CDA for the construction made, they shall be permitted for the construction, which has been indicated in the suggestions given by the Technical Committee in Point No.5, which should have been approved by the chief Engineer & Basin Manager, Lower Mahanadi Division.
(3) With regard to removal of Shoal, as stated by the Secretary Water Resources Department as well as the Engineer-in-Chief, the bathometric survey is to be done through IIT Chennai, as the State Government had already taken the expertise of IIT Chennai in some other projects.
Cost of which shall be borne by the IOCL.
31(4) So far as removal of old Anicut is concerned, it shall be done at the cost of the IOCL under the supervision and technical guidance of the Water Resource Department. Since it is stated that previously a part of the Anicut was removed by the Orissa Construction Corporation (OCC) and eventually the present Secretary, Water Resource Department is the Chairman of the said Corporation and the Corporation had got the men and machinery and expertise for the aforesaid work, let the IOCL keep in touch with the Chairman, OCC and if the Government desires, it can be done through OCC, but at the cost of the IOCL.
(5) So far as dredging is concerned, it is also stated that the dredging can also be done by the OCC with the help and expertise of Water Resources Department at the cost of IOCL and modalities of the same shall be decided by the officials of the Water Resources Department and IOCL and the Executing Agency. Hence such dredging shall be done as suggested above, at the cost of the IOCL.
(6) Regarding the strengthening of the existing City Protective embankment, since it is stated in the affidavit of the Chief Engineer that usable earth from the dredging activities will have to be utilized for strengthening of the 32 existing City Protective embankment and the unusable earth will be utilized for filling up the low lying areas nearby, let the Revenue Department and Department of Water Resources demarcate the land and areas where the unusable earths can be dumped of if any portion of the same shall be used for widening of the embankment (Ring) Road.
(7) It is directed that, during lean period there shall be no water supply to IOCL and the IOCL will have its own reservoir near the plant area fur utilization of water during those period.
(8) So far as, Survey, dredging and removal of old Anicut are concerned, the work should be taken up at the earliest and it should be completed before the actual drawal of water from the reservoir is made by the IOCL. So, the Water Resources Department shall give proposals to the IOCL, who shall place funds with the respective executing agency as per the decision taken between the Water Resources Department and the IOCL. It shall be done within a period of two months from today.
In order to expedite the matter, we form a committee comprising Shri Suresh Ch. Mohapatra, Secretary, Water 33 Resources Department, Revenue Divisional Commissioner (CD), Cuttack, Collector, Cuttack, Er. Baidhar Panda, Chief Engineer & Basin Manager, Lower Mahanadi Basin, Bhubaneswar and one of the citizens of the Cuttack City, namely Akshaya Kumar Das, President Jala Surakhya Janamanch. Er. Baidhar Panda will be the Nodal Officer of the Committee Now with regard to the Corporate Social Responsibility of the IOCL, which it has to discharge so far as Cuttack City is concerned, we have already indicated this fact in our order dated 29.9.2011 and also discussed in the hearing of the case. Adding to this, it may be indicated that Cuttack is a very old city, which includes its narrow lanes and bye-lanes. The health system is at its primitive stage. The traffic signal system is not up to the mark. One of the major difficulties the city people are facing is due to lack of well equipped ambulances.
In view of such, we direct the IOCL to provide a Water Treatment Plant for drinking water to be utilized for Public Health Department, Cuttack for the purpose of supplying drinking water in Cuttack City. The plan and estimate is to be made by the P.H.D. and the land for the said plant is be identified and provided by the Collector and permission be granted for establishment of said plant. After the said plant is commissioned, the same be handed over to PHD 34 With regard to Health Care, we direct the IOCL to provide Rs.10.00 crores to Sardar Vallabbhai Patel P.G. Institute of Paediatrics (Shishu Bhawan) to be used for its developmental works including drinking water facility, sanitation, modernization of wards and a modernized outdoor for providing treatment to the emergency patents.
Apart from that, Rs.3.00 crores be provided to the Commissioner of Police, Cuttack-Bhubaneswar towards the improvement and management of traffic system and traffic signal lights at various junctions in the city of Cuttack.
The IOCL shall also provide five hi-tech Ambulances to the Committee so formed above, which shall provide the same to different Government Hospitals or Philanthropic Organizations of their own choice. The running and recurring cost for three years shall be assessed by the Committee, which shall be deposited by the IOCL with the Committee, thereafter the Government/ Philanthropic Organization shall bear the same.
With the aforesaid terms and conditions, all the interim orders stand vacated and the writ petition is disposed of.
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B. P. Das, J.
M.M. Das, J. I agree.
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M. M. Das, J.
Orissa High Court, Cuttack.
February , 2012/Arun