People United For Better Living In ... vs Union Of India Through The Secretary ... on 9 May, 2022

[Cites 19, Cited by 1]

National Green Tribunal

People United For Better Living In ... vs Union Of India Through The Secretary ... on 9 May, 2022

1. This Petition was filed before the High Court of Calcutta as W.P. No. 26328 (W) of 2015 which was transferred to this Tribunal vide order of the high Court dated 18.03.2016. Prayer in the application is for protection of wetlands in the State of West Bengal, particularly Mollaber and Panchghara wetlands at Dankuni, District Hooghly, according to the 1 statutory Wetland (Conservation and Management) Rules, 2017. According to the applicants, the wetlands are under threat of being filled up for commercial purposes which will result in serious loss of the water resources of State and adversely affect the eco system and also source of livelihood from fishing. The wetlands play a significant role in maintaining ecological balance including cleaning of water, recharge of ground water and serving as habitat for birds and mammals. The wetlands also support variety of fish. As per Public Trust doctrine, the State is under obligation to protect the wetlands.

2. The applicants have also referred to earlier proceedings before the Calcutta High Court in W.P. No. 606/2011, Forum for Human Legal and Ecological Rights, Bansdroni v. UOI & Ors. which was disposed of vide order dated 03.02.2012 and W.P. No. 461/2013, Public & Anr. v. UOI & Ors. filed by the applicants which was disposed of by the High Court vide order 29.11.2013, directing steps to be taken for restoration of wetlands. A High Powered Committee (HPC) was constituted by the High Court headed by the Chief Secretary and coordinated by the Member Secretary, WBPCB. The HPC has held several meetings but the issues have not been fully addressed. Complete inventory of wetlands and water bodies has not been prepared, as required.

Procedural History

3. After transfer of the matter to this Tribunal, it was first taken up for hearing on 17.05.2016. The Tribunal issued notice to the respondents including Central Wetland Authority, State of West Bengal and District Magistrate, Hooghly. The said parties have filed their respective affidavits. The Tribunal has passed orders from time to time 2 for identification, preservation and development of water bodies and wetlands, as per applicable Rules and norms.

Stand of the State Authorities

4. The stand of the State of West Bengal in the reply filed through the Principal Secretary, Environment on 10.08.2016 is that HPC was constituted in terms of order of the Calcutta High Court. Steps were taken to clean Dankuni canal to remedy the water logging. There was a proposal to conserve the ponds after compiling the relevant data. The industrial activities permitted do not in any manner affect the wetlands in question. By a supplementary affidavit of the applicant filed on 03.11.2016, it was pointed out that the Fisheries Department, West Bengal has undertaken exhaustive mapping project for creating data base of the inland water resources. The wetlands in question are mentioned in the said map. In response thereto, the Secretary Environment by his affidavit dated 16.01.2017 submitted that the map of the Fisheries Department shows small segregated tanks and a water- logged patch which cannot be designated as wetland for which 500 Ha. is required. However, no industry was being permitted to fill up the water bodies in question. In the minutes of HPC dated 17.05.2016, annexed to the affidavit, it is stated as follows:-

"The Committee further observed that the entire Gangetic Alluvium including Dankuni area is a flood plain which, in the course of the last fifty years, was crisscrossed by major transport corridors (both rail and highways). These large- scale anthropogenic interventions have resulted in pockets of waterlogged areas which are now spoken of as wetland. In addition to this, another major cause for water logging in the said area is due to the filling up of Dankuni canal by disposal of garbage, cow dung, dead animal remains etc. thereby impeding the drainage flow of water including the storm water to the Ganges resulting in unhygienic, filthy condition in the areas along the canal which may even lead to epidemic in the area and as such requires immediate intervention for cleaning, in order to ensure regular 3 undisturbed flow of the canal for betterment of the habitat. The committee further observed that the said wetland is a creation of recent origin as a result of human intervention, wetland flora (non- endemic) fauna. Further, as per the report of State Water Investigation Department (SWID), the soil profile of the area does not allow ground water recharge. Therefore, it can be concluded that the ecological attributes of the area are not such as to warrant prohibition of all human activities in its vicinity. Similar ecosystems are found in many urban and rural areas in the in the gangetic plain, in close proximity to human habitations.

In this context it is pertinent to mention that the area along the western side of the expressway has already been converted in a stretch of industries taking the advantage of new expressway and proximity to Kolkata and as such, the present project proponents also seek to set up similar industries on the area along the eastern flank of the Expressway.

The sighting of fishing cat and yellow monitor lizard is not only interesting but also important. The distribution of fishing cat in these areas along with other areas having similar landscapes is documented. These animals also reside near human habitations having similar landscapes, preying on poultry and livestock besides fish as found in wetland habitat. The major chunk of mouza- Mollarber on the eastern side of Dankuni canal and also the mouza situated towards the north-east would be able to serve the purpose. Establishment of eco-friendly industries in part of the mouza in compliance with environmental norms is not likely to lead to any appreciable ecological imbalance in the area, especially because most of the existing water bodies will not be allowed to be filled up and a major part of the habitat retained. Further, the area does not act for recharging of ground water to the aquifers and more so is classified as 'shali', 'doba' and 'karkhana' in the land records. If the project proponents grow trees, maintain existing water bodies and drainage network, and ensure pollution free effluents, it should be possible to reconcile. the twin objectives of industrial development of the area and preservation of its ecosystem.

The contention of the petitioners regarding consideration of 'Doba' as wetlands by the HPC, cannot be construed as correct. The part definition of wetland as stated by the petitioner is also not correct and misleading as the area in question comprises of more or less 280 Ha. comprising mostly 'Shali' (paddy) cultivation land) which cannot be termed as wetland in terms of the definition of wetland (Conservation and Management) Rules, 2010. The term Doba refers to a small water body in Bengali language and can retain water seasonally. Further, creation of new water body as compensatory water body is not the prime agency of HPC but as per the order dated 29.11.2013 of the Hon'ble High Court Calcutta a few small cases may need consideration if it is extremely necessary (needs to be proved by the project proponent prior to application for conversion to DL&LRO with a copy to the HPC and approval sought) subject to the guidelines as per the West Bengal Land Reform Act, 1955 and Rules made thereunder.

As regards the construction of buildings in the area by Lux Cozy in violation of the order of the Hon'ble High Court, the Committee has already brought the matter to the notice of the District Magistrate, Hooghly and the Commissioner, Presidency Division for taking necessary action and place a report to the Committee. As the report has not been received as yet, the Committee decided to send a reminder to the above authorities.

Project Proponents i. Ms. Nishita Katriar (for Singh and God Industrial Estate) Project Proponent (PP) of Singh and Goel Industrial Estate stated that, they purchased the land 30 years back. Meanwhile Govt. of West Bengal decided to construct a township in collaboration with DLF which did not materialise and then the project proponents decided to set up warehouses and green industries in the area. However, when they went ahead for planning the area with road and drain connectivity along with basic infrastructures they learnt that a PIL has been launched and approached the office of BL&LRO, Serampore-Uttarpara through R'TI and learnt vide memo no. RT1/3348/SR11/2013 dt. 01.10.2013 that the BLLRO office doesn't have any information about the PIL with reference to W.P. No. 461 of 2013 and hence, mutation of Mollarber was going on but again they arranged and a procured a certified copy of order of Hon'ble High Court, Calcutta on 15.07.2014 with direction to stop any further construction without getting clearance from High Power Committee. Based on that order, they stopped all work and approached High Power Committee (HPC) to look into the matter. As per information and documents submitted it has been found that the concern wants to build a warehouse over a project area comprising of 17 (seventeen) plots in J.L No. 22, Khatian no. 3469 & 3470. The entire matter was sent for verification to District Land Reforms office, Hooghly. As per report received from District Land Reforms office, Hooghly the land belonging to Singh and Goel Industrial Estate is classified as `Shali and presently `marshy' in nature. However, the satellite imagery received by the High Power Committee from the Fisheries Department, it is evident that part of plot no. 479, 480 and 481 comprising of 0.123 acre remains waterlogged over six month period. Though during the inspection by the officers of District Land Reforms office, Hooghly plot No. 479 and 480 was found to be dry. The HPC also visited the area along with DL&LRO's report and found the same to be true. Hence, it was proposed that warehouse can be constructed in the area barring plot No. 479, 480 and 481, abiding by the conditions provided by the visiting members in the field inspection report and agreed upon unanimously.

ii. Mr. H.R. Bera, Mr. Sourabh Ganguli and Mr. Niran jan Kr. Basu (for Mars. Plywood) M/s. Mars Plywood Industries Pvt. Ltd., attended the discussion through their representatives mentioned above. As per their statements the industry was already running at Vill-Panchghara, P.S. - Chanditala, Dist. Hooghly. The factory is engaged in production and marketing of Plywood and allied products 5 throughout India. Timbers for the products are being imported from the South Asian Countries and Africa and materials produced through engagement of 1,300 workers. For the purpose they had also taken all clearances, now they want conversion of 9.99 satak of land located within the factory premises to augment their production. They also agreed to maintain present ponds etc. within their factory premises properly as they need it for performing their activities. As per classification the lands are predominantly recorded. as `Shali' with some areas as 'Danga' and 'Karkhana'. As per records received from the satellite imagery submitted by Fisheries Deptt. and also by the DL&LRO, plot no. - 3274 of Khatian No. 3328, J.L. no. - 80 ; Plot no. - 699, 3241, 3243 of Khatian No. - 3316, J.L. No. 80 and Plot no. - 3285 and 3286 of Khatian No. - 3329, J.L. No. - 80 are ponds and waterlogged areas, which need to be conserved. Hence, it was unanimously agreed that the factory may be allowed for expansion abiding by the conditions provided by the visiting members in the field inspection report.

iii. Mr. Anup Agarwal (for yours food) Yours Food Pvt. Ltd. Submitted that they are having 6(t) plots at Khatian No. 5362, J.L. No. 80. As per verification from the District Land Reforms office, Hooghly the land is classified as `Shali' but is lowland filled with, long grasses. The PP wanted to put up a biscuit and confectionary unit in the area. Based on the above consequences the HPC unanimously recommends that the factory may be allowed subject to setting up of ETP to reduce the pollution load of the effluent water and abiding by the conditions provided by the visiting members in the field inspection report.

iv. Mr. Aditya Todi (for Todi Infrastructure) Based on the submission of Mr. Aditya Todi for making a warehouse as well as food packing unit in the area and the physical verification reports submitted by District Land Reforms office it was found that one plot bearing No. 3814 at Khatian no.-5326, J.L Na - 80 of Monza- Panchghara comprised of `Doha' of 0.11 acre. The other lands were designated as `Shali' and physically 'Lowland' filled with weeds. Based on the project submitted it was proposed that the project can be allowed to be taken up in the area except the portion of `Doha' which has to be preserved. Hence, it was unanimously agreed that the warehouse and food packaging unit may be allowed abiding by the conditions provided by the visiting members in the field inspection report.

v. Mr. Amit Agarwal (for Sarnia MJS Plastic) The PP has purchased 4(four) plots in different Khatians in J.L. No-80 in Panchghara --Mouza, classified as 'Shall' but is a lowland where they would like to make pet bottles. They prayed for permission being a green industry category and pledged to use solar energy for lighting etc., and also allocate land for rainwater harvesting in the area Hence, the HPC unanimously. agreed to recommend the project abiding by the conditions provided by the visiting members in the field inspection report.

vi. Representative of Subhashree Food Processor Subhashree Food Processor having 3(three) plots at Khatian no.- 5408, J.L. No. 80 at Panchghara --Mouza, The land is classified as `Shall' and predominantly lowland where the owner wants to set up a flour mill and sooji mill. The industry being non-polluting and even the flour dust would be trapped through use of bag filter. Hence, the HPC unanimously agreed to recommend the project abiding by the conditions provided by the visiting members in the field inspection report.

vii. Mr. R. N. Gupta (for Sumita Agarwal & Others) Ms. Sumita Agarwal and Others have submitted a proposal for construction of warehouse for storing steel pipes and sanitary materials. For the purpose they have purchased 10(ten) plots in Khatian no.-4231, 4230 and 4229 in J.L. No. 22 of Mouza- Mollarber. The area is classified predominantly as 'Shall' with Plot no. 496 and 506 as `Doha' and 497 as `Bandit'. In view of the HPC the area can be recommended for setting up of the warehouse with the exclusion of the `Doba' and 'Bandit' as per Rule and abiding by the conditions provided by the visiting members in the field inspection report.

viii. Mr. B. Jain (for Dankuni Properties) Dankuni Properties Pvt. Ltd. has submitted that they have 66 decimal of 'Shall' land in Dag no. 476. and 477 and Khatian no. -- 4409 at Molldrber where they want to construct a warehouse. The area is dry land having long grasses as per report received from the Land Reforms, Based on field visit and the reports mentioned above the HPC unanimously agreed to recommend the project abiding by the conditions provided by the visiting members in the field inspection report.

ix. Mr. Sandia Shama (for Ashok Sinha) The PP wants to set up a food processing and packaging unit for preparing and packaging of spices and flour, besides packing of rice, pulses etc. The project area. comprises of 6(six) plots and Khatian no. 4467 and IL. no. 22 of Monza- Mollarber. The land is classified as 'Shall' but is lowland. The industry to be set up being a green one the HPC recommends the project subject to abiding by the conditions provided by the visiting members in the field inspection report.

x. Mr. Anup Agarwal (for Ganesha Project) The land comprises of 5(five) plots at Khatian no.-5084 of J.L.no. -80 of Panchghara --Mouza. The area is classified as 'Shall' and 'Doba' and falls within a large patch of water logged area as per satellite imagery classification of Fisheries Dept. Hence, setting up of industrial unit within that area will not only fragment the habitat patch but will also pollute the area and is likely to disturb the ecology of the area. Hence, it was proposed that in order to retain the major chunk of water body in the area, the establishment of the industry in the area by the Ganesha Project cannot be allowed.

xi. Mr. Arun Kr. Pawky (for Shree Fort Pvt. Ltd.) Shree Fort Pvt. Ltd. wants to set up a logistic hub comprising of godown where they will store bundles of clothes from the Northern India and will distribute the same in Eastern India. The land purchased by them are low lands in the Gangetic flood plain with character as `Shall' and one`Doha' at plot no.-3800, Khatian no.-5071 , J.L. No.-80 of Mouza- Panchghara. As the Project Proponent wanted to set up the logistics hub this is totally pollution free. The HPC agreed to clear the project abiding by the conditions provided by the visiting members in the field inspection report.

xii. Mr. Pankai Kr. Agarwal(for Banwarilal Aaarvval) Mr. Banwarilal Aganval and Mr. Binod Kumar Agarwal wanted to set up a biscuit manufacturing unit. Their land comprises of 3 plot, no.- 3799, 3801 and 3819 and different L.R. Khatians bearing no. 5416,5417,541.8, 5419 and 5420 amongst these plots it has been observed from the satellite imagery of the Fisheries Deptt. plot No. 3799 is a `Marshy water logged' area classified as `Shall'. So the HPC is of opinion that the plot No. 3799 should be preserved while the other areas can be taken up abiding by the conditions provided by the visiting members in the field inspection report and also taken necessary action for reducing the BOD containing effluent load through ETP.

xiii. Mr. Sandipan Das (for Patni Resources Pvt. Ltd.) From the submission of Patni Resources Pvt. Ltd., it was evident that the land comprises of 3(three) plot at Khatian No. -- 5444 , J.L, No. 80 of Mouza-Panchghara is a tow Land' with classification as `Shali' where the Project Proponent proposes to set up a off-set printing press and a paper cup manufacturing unit. The HPC agreed to the setting up of the proposed project abiding by the conditions provided by the visiting members in the field inspection report.

xiv. Mr. Mukesh Aganval (for Shree Shyam Tea Co.) Shree Shyam Tea Co. has only one plot no.-3801, Khatian no.- 5409, J.L. No. -- 80 of Panchghara --Mouza, classified as `Shall' The owner wants to set up a small tea packaging unit with a warehouse in the area. Hence, it was unanimously agreed that the Tea packaging unit may be allowed abiding by the conditions provided by the visiting members in the field inspection report.

Miscellaneous Zen Health Care Products Pvt. Ltd. submitted an application for `No objection' in respect of development within Mouza-Jagadishpur, P.S.- Liluah, Dist.-Howrah. The HPC is of the opinion the Committee has been directed by the High Court to deal with the Mollarber and Panchghara Mouza only under Hooghly District. Hence, dealing with development project in Howrah is out of the purview of the Committee, which may be informed to the applicant."

5. Some of the above-named persons have filed applications seeking directions of the Tribunal.

6. Further affidavit of the Environment Department filed on 19.04.2017 refers to the order of this Tribunal dated 02.09.2016 in O.A. No. 501/2015, Anand Arya v. UOI & Ors. and OA No. 560/2015, Pushp Jain v. UOI & Ors. requiring the State to identify the wetlands. The State collected data of wetlands above 500 Ha. and prepared a list of 28 wetlands which has been sent to MoEF&CC on 20.01.2017. Reference has also been made to the order of the Hon'ble Supreme Court dated 08.02.2017 in M.K. Balakrishnan & Ors. v. Union of India & Ors.1, directing the Central Government to identify and inventorise all 2,01,503 wetlands with the assistance of the State Governments covering all wetlands having an area of more than 2.25 Ha.

7. The applicant in its supplementary affidavit filed on 14.03.2021 has pointed out that WPO No. 541/2017 was filed before the High Court by the applicant for protection of East Kolkata Wetland wherein, the High Court directed the Chief Secretary in his capacity as Vice Chairman, WB State Wetland Authority to get all wetlands in the State identified and to place the details before the Court. The Chief Secretary filed affidavit dated 18.02.2022 before the High Court as follows:-

"Till date, 155 Nos. Wetlands have been identified by the District Magistrates from 12 Districts and submitted to this end."

8. However, no information has been given with regard to Dankuni wetlands which are subject matters of the present application. 1 (2017) 7 SCC 805 9

9. Vide order dated 04.03.2022, the High Court directed the Chief Secretary to file further report of identification of all wetlands in the State.

10. Copy of the report filed before the High Court by the Chief Secretary, West Bengal on 18.02.2022 has been filed before the Tribunal which annexes a status report as follows:-

"WRID Department has been assigned the nodal role vide Notification No. EN/922/3008/2019 dated 31.05.2021 of the Chief Secretary for restoration of water bodies. In this connection, Environment Department has requested WRI&D Department to coordinate will all District Magistrate and related authorities to identify the sites of water bodies/ wetlands with are significant and need to be conserved as per the provisions of the Wetlands (Conservation & Management) Rules, 2017.

Accordingly, a letter (No. 1633 (23)-WI-13015/7/2021-EIC (WRIDD)-Dept. of WRID Dated 17.11.2021 was issued by the Principal Secretary, WRI&D Department (copy enclosed) to all District Magistrates along with a list of 2437 wetlans (in MS Excel) as extracted from the information (.kml file) received from the Department of Environment. The list covers all wetlands having area 10 hectare & above. It was decided that those wetlands are to be covered to the first phase. District Magistrates were requested to submit brief documents as per National Plan for Conservation of Aquatic Eco Systems (NPCA) along with land details.

Subsequently, another letter vide no. 01(22)/Pr/ Secy./ WRIDD/2022 dated 06.01.2022 was also issued to the District Magistrates (copy enclosed) for identification of at least 10 wetlands for being notified as State Wetland under Wetland (Conservation and Management) Rules, 2017 along with fact sheets for each identified wetland.

Till date, 155 Nos. wetlands have been identified by the District Magistrates from 12 Districts and submitted to this end. 94 fact sheets have also been prepared and submitted. (Detailed Table No. 1) Further action is being continued in Districts."

11. Vide order dated 21.02.2022, the Tribunal noted that as per affidavit filed before the High Court in W.P. No. 541/2017, People United 10 for better living in Calcutta (Public) & Anr. v. UOI & Ors., three water bodies in District Hooghly have been identified as wetland. Accordingly, the Tribunal permitted filing of affidavits on this aspect. In pursuance thereof, affidavit has been filed by the Additional Chief Secretary on 11.03.2022 annexing High Court order dated 24.12.2021 and a copy of the affidavit 18.02.2022.

Further Consideration today and orders

12. We have heard learned counsel for the parties with a view to pass final order in the matter.

13. It is seen from the above that the State has initially identified only 28 wetlands of more than 500 Ha in area, as per its letter dated 20.1.2017. Later, the number has increased to 155 as per affidavit filed in the High Court on 18.2.2022 though as per document annexed to the said affidavit, there are 2437 wetlands of more than 10 Ha. As per directions of the Hon'ble Supreme Court, all wetlands in the Atlas prepared by the MoEF&CC having area of more than 2.25 Ha. are required to be identified and governed by applicable Rule, which now is Rule 4 of the Wetland (Conservation and Management) Rules, 2017. The rule prohibits constructions in the catchment area, as specified therein.

14. Following the judgment of the Hon'ble Supreme Court this Tribunal has passed further order dated 25.11.2021 in O.A. No. 351/2019, Raja Muzaffar Bhat v. State of Jammu & Kashmir & Ors. in the context of J&K but made applicable to all States/UTs, as follows:-

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7. The matter was last considered on 22.07.2021 in light of report of the J&K PCB dated 19.01.2021 and report filed by the Scientist -D, MoEF&CC dated 11.06.2021. The Tribunal found that 11 the reports were incomplete. The report of J&K failed to mention the status of remedial action and the report of MoEF&CC failed to give the entire relevant data. The Tribunal accordingly directed the State of J&K to prepare an action plan with budgetary support and to identify the accountable persons. It was further directed that the action plan may be overseen by the Chief Secretary, J&K who may remain present in person by Video Conferencing with the compliance status. It was further directed that National Wetland Authority (NWA) may compile all relevant data about status of compliance for 2,01,503 wetlands. Considering the report filed by the MoEF&CC for action plans for wetlands pan India, it was observed that National Wetland Authority had failed to provide all relevant information inspite of categorical orders of the Hon'ble Supreme Court dated 08.02.2017, requiring the Central Government to inventorize 2,01,503 wetlands to which the principle of Rule 4 of the Wetlands Rules 2010 was made applicable. Accordingly, the Tribunal directed the NWC to ensure that action plans are prepared and executed under the control of District Magistrates and District Level Committees and also monitored by the State Wetland Authorities which may at National level be monitored by the Joint Secretary, MoEF&CC. The Joint Secretary MoEF&CC was also directed to remain present in person by video conferencing.

8. The operative part of the order is reproduced below:-

"8. From the above, it is seen that while in the last column of 'major challenges', the challenges are mentioned, the status of remedial action has not been given. Thus, the report is incomplete and does not serve the required purpose. Let an action plan in respect of each of the wetland be prepared within one month for action in a time bound manner, with budgetary support and identified accountable persons. The plan may include among others remedial action against weedinfestation,sewagedischarges,solidwastedisposal,e ncroachmentsetc.This may be overseen by the Chief Secretary, J&K in view of significance of the matter and continued violation of orders of the Hon'ble Supreme Court, noted earlier. The Chief Secretary, J&K to remain present in person on the next date, by video conferencing, with compliance status as on 31.10.2021.

9. We now take up the report of the MoEF&CC with regard to status of compliance of the environmental norms in respect of significant wetlands, based on the information furnished by the State PCBs, PCCs/Wetland Authorities of States/UTs.

10. The report mentions that the Wetland Division is implementing National Plan for Conservation of Aquatic ecosystems (NPCA) for Conservation and Management of Wetlands in the country on cost sharing basis between Central Government and respective State Governments with the object of National Plan for Conservation of Aquatic Ecosystems (NPCA). The Plan NPCA aims at holistic conservation and restoration of wetlands and lakes for 12 achieving the desired water quality enhancement, besides improvement in biodiversity and ecosystems and to promote mainstreaming of wetlands in developmental programming with States by supporting formulation and implementation of integrated management plans, capacity development and research. Till date MoEF&CC has funded 92 nos. of wetlands in 24 States under NPCA scheme. 100 days programme for rejuvenating and restoring wetlands was initiated wherein over 130 wetlands were targeted using the 4 - pronged approach of preparing Brief Documents, filling Ecosystem Health Cards, instituting Wetland Mitras and formulating Integrated Management Plans. Health Cards have been prepared for 115 nos. of wetlands covering an area of 24,55,321.91 ha. States were advised to prepare Integrated Management Plans (IMP) for these wetlands based on the health and specific threats facing the wetlands which ensures rejuvenation in an outcome-oriented manner. Phase II of this initiative is now underway. It is envisioned to include about 1000 wetlands and help identify synergies between different stakeholders. Over 500 health cards have been prepared with the help of knowledge partners and sent to states for validation. two wetlands, namely Sukhna (Chandigarh) and Raamgarh Taal (UP) have been notified under the Rules. Draft notifications for many other wetlands are at various stages of notification by the State Governments. Currently, India has 42 nos. of wetlands designated as Ramsar Sites (Wetlands of International Importance) covering 1,081,438 hectares area and spread across 19 states and UTs. MoEF&CC has provided financial assistance to States under various Centrally Sponsored Schemes (CSS), namely National Action Plan for Conservation of Aquatic ecosystems (NPCA), Integrated Development of Wildlife Habitat (IDWH) and Conservation and Management of Mangroves and Coral reefs (CMMC). Out of 42nos. of Ramsar sites, 35 nos. of sites were supported through financial assistance under various Centrally Sponsored Scheme by MoEF&CC for conservation and management. 16 nos. of Ramsar sites are being monitored by Central Pollution Control Board (CPCB) for water quality. According to the National Wetland Inventory and Assessment (NWIA) carried out through Space Applications Centre (SAC), Ahmedabad based on 2006-07 satellite data, a total 201503 nos. of wetlands have been mapped at 1:

50,000 scale which are >2.25 ha and cover an area of approx. 14.7 Million ha. Significant wetlands include the 42 nos. of Ramsar wetlands and other wetlands. The Ministry had earlier prepared a health card system, which provides the health status of the wetland based on a rapid study of health of each wetland ecosystem. Using health and threat score, 130 wetlands were rapidly assessed in a special drive of 100-day Programme. The nodal officers for 33 nos. of these wetlands which fell under Low Health and High Threat category, were guided for preparing and reviewing the management plans of these wetlands to mitigate the threats.

11. We have considered the report filed by the MoEF.

'Summary of data received' given in the report is hardly of 13 any value as against most of the States, remarks are 'not responded'. Under the heading 'Examples of some best practices implemented for the rejuvenation of wetlands', reference has been made to certain steps taken only two places - Anusupa and Chillika Lakes, Odisha.

12. We are disappointed at inadequacy of the report filed almost 10 months after the last order and four years after the order of the Hon'ble Supreme Court. It is surprising to note that even after such long period, the National Wetland Authority is not able to get relevant information from the concerned States, inspite of categorical orders of the Hon'ble Supreme Court dated 08.02.2017, requiring the Central Government to inventorize 2,01,503 wetlands to which the principle of Rule 4 of the Wetlands Rules 2010 was made applicable. If even the relevant information with regard to compliance of the binding direction of the Hon'ble Supreme Court could not be compiled by the National Wetland Authority, one wonders what meaningful action will be taken by the said Authority. It is a matter of serious great regret and failure.

13. The applicant has filed response to the report of the joint Committee dated 11.06.2021. Suggestion on the subject of performa for deciding which wetlands are significant wetland must include component like:

"8. ...(i) whether the concerned wetland is having any significance from livelihood sourcing point of view and if that has been affected for any reason, (ii) whether there exist any communities who possess traditional knowledge with respect to the wise use of wetlands, so that the same knowledge can be utilised for replication in similar type of wetlands elsewhere which are under threat and (iii) what enforcement action has been taken for each identified threat and how much of the threat has been addressed."

It is further pointed out that only 363 wetlands have been identified as 'significant wetlands' out of 2,01,503 wetlands which are more than 2.25 ha.

14. Accordingly, we direct that the National Wetland Committee may expeditiously compile all relevant data about status of compliance of environmental norms in terms of directions of Hon'ble Supreme Court which covers 2,01,503 wetlands. Out of the said data, data in respect of 'significant wetlands' may be placed before the Tribunal. Under Rule 6(3) (c) of the Wetland Rules 2017, the National Wetland Committee has to monitor compliance of Rules by the State Wetland Authorities. The Committee needs to get action plans formulated and executed under control of DMs and District level Committees. The States may accordingly prepare annual reports and MoEF&CC may bring out National 14 Annual Status Report as required under the said Rules. This exercise may be overseen by Joint Secretary, MoEF&CC to be nominated by the Secretary, MoEF&CC. Nomination may be done within one week from today. The suggestion that identification of significant wetlands could not be based merely on the size but all factors, including the suggestion of the applicant, mentioned above. Report about status as on 31.10.2021 may be filed before the next date by e-mail at judicial- [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. The said Joint Secretary may remain present in person by video conferencing on the next date."

9to15......xxx...............................xxx............................xxx

16. The Joint Secretary, MoEF&CC stated that water being State subject, primary responsibility of handling the matter is of the States. Similar approach was disapproved by the Hon'ble Supreme Court in observations already quoted earlier. Needless to say that Wetland Rules, 2017 have been framed under the Environment (Protection) Act, 1986 under which there are statutory powers with the Central Wetland Authority to oversee the protection of wetland. It is not subject of 'water' alone. 'Environment protection' is covered by Central laws on account of International obligations under Entry 1 List 13 of Schedule 7 to the Constitution. Attitude of avoiding responsibility cannot thus be appreciated. CWA in the MoEF&CC needs to monitor compliance of the Wetland Rules throughout the country by periodical interaction atleast once in a month.

17. The suggestion of the applicant is that significant wetlands need not be limited to 363 and more wetlands on examinations be added to the list from time to time for better protection by preparing appropriate action plans under the programme for protection of the significant wetlands. Further, apart from figure of 2.01 lakh wetlands already mapped, to which the Wetland Rules, 2017 are applicable even if no separate Notification in terms of 2017 Rules in view of directions of the Hon'ble Supreme Court in M.K. Balakrishnan, supra, it may be possible to identify more such wetlands. Infact, the report of the MoEF&CC itself mentions that some States have already identified larger number of wetlands than earlier mapped. In UP itself, 133484 wetlands are entered in the Revenue Records which are being protected by the State. On the same pattern, all the States/UTs need to map all available wetlands in their jurisdiction and file report with the National Wetland Authority so that National Wetland Authority can prepare an exhaustive inventory of wetlands in the country and extend protection to all such wetlands. These suggestions need to be considered by the MoEF&CC."

15. As per Minutes of the HPC dated 17.05.2016, quoted earlier, Dankuni area is a flood plain. It is said to be waterlogged area. It is stated that due to anthropogenic interventions, the area is affected by dumping of garbage and also otherwise.

Finding

16. We find a serious drawback in the approach of the State. It is wrong to think that Wetland must have 500 ha or even 10 ha. Thus, limiting number to 28 or 155 when even as per State's own record Wetlands of more than 10 ha are 2437, is against the concern for environment. Further, in terms of judgement of the Hon'ble Supreme Court in MK Balakrishna, supra, Wetland Rules apply to wetlands of more than 2.5 ha, even if not notified as wetlands. The State is bound by the said direction and must identify all Wetlands above 2.5 ha for protection by the Wetland Rules. Further, even wetlands less than 2.5 ha qualify as water bodies which have to be protected as per law of the land, including the order of this Tribunal dated 18.11.2020 passed in OA No. 325/2015, Lt Col Sarvadaman Singh Oberoi v. Union of India & Ors., applicable to all States/UTs. Approach of the State that the area which is 'floodplain' need not be protected is also erroneous. Protection of flood plains is also a component of protection of environment, as held by this Tribunal inter alia vide order dated 15.12.2020 in O.A. No. 22/2020 (EZ), Dilip Kumar Samantaray v. State of Odisha Board & Ors. Extracts from the order are:

"1to7......xxx..................................xxx..................................xxx

8. There does not appear to be any central legislation to regulate the flood plains, except a notification dated 07.10.2016 issued by the Ministry of Water Resources, River Development, and Ganga Rejuvenation, with respect to Ganga river, under the Environment (Protection) Act, 1986, prohibiting any construction in the active floodplain area of river Ganga or its tributaries. The Union Water 16 Resources Ministry circulated a model Bill on the subject in 1975 but the same did not fructify into law. There are some State Acts like Manipur Flood Zoning Act, 1978 and the Uttarakhand Flood Plain Zoning Act, 2012. In the State of Maharashtra, there are norms for demarcating regulatory and prohibitory zones in the floodplains of the rivers.2 Various States have taken their own legislative/administrative measures to regulate and prohibit activities in the floodplains. There are guidelines by some other States also.3 There are also norms for no development zone, restricted zone in the floodplains of the rivers in Gujarat as referred to in order of this Tribunal dated 21.09.2020 in OA 50/2018(WZ), Nav Yuva Sanghatan & Ors. vs. The Secretary, Narmada, Water Resources, Water Supply & Kalpsar Department & Ors.

9. The Wetlands (Conservation and Management) Rules, 2017 prohibit any permanent constructions within 50 meters of the Wetlands, from the mean high flood level in the past 10 years from the commencement of the rules. There are also similar restrictions in certain Master Plans like the Revised Master Plan of Bangalore referred to in Mantri Techzone Pvt. Ltd. vs. Forward Foundation & Ors. (2019) SCC Online SC 322.restricting constructions in catchment area of the lakes. We are also not aware of the legislative and administrative measures in the State of Odisha on the subject of regulating and prohibiting activities in the floodplain zones of the rivers in the State, but such an exercise appears to be necessary to give effect to the precautionary principle of environmental law, required to be enforced by this Tribunal under section 20 of the NGT Act, 2010.

10. While considering the issue of rejuvenation of identified polluted river stretches, (including Mahanadi, which is one of such polluted river stretches) the Tribunal directed that each State must constitute a River Rejuvenation Committee (RRC) to prepare appropriate action plan and execute the same. The action plan needs to include a plan for protection of floodplains.4

11. There are also articles in the media dealing with the subject. We may only refer to some as follows:

Guidelines issued by the Irrigation Department of Maharashtra on 21.09.1989 as amended in the year 2018 and order of this Tribunal dated 11.07.2013 in OA 2/2013, Sarang Yadwadkar v. Commissioner, Pune Municipal Corporation, reported in 2013(1) All India NGT (Delhi) 299.

i. Also see order of the Allahabad High Court as reported in news article published on 04.01.2019 in The Times of India under the heading "No construction within 500 metre of high flood level: HC" authored by Shri Rajesh Kumar Pandey (https://m.timesofindia.com/city/allahabad/no-construction-within-500-metre-of-

high-flood-level-hc/amp_articleshow/67379839.cms) ii. News article published on 29.09.2016 in The Hindu under the heading "Building along the coast" authored by Shri G. Shyam Sundar (https://www.thehindu.com/life-and- style/homes-and-gardens/Building-along-the-coast/article14644372.ece). 4 See order dated 21.09.2020 in OA No. 673/2018, In Re: News item published in "The Hindu"

authored by Shir Jacob Koshy, titled "More river stretches are now critically polluted:

CPCB".

i. Article titled "why floodplains need to be protected"

dated 12.10.20185 stating as follows:

"Damage to floodplains harms the riverine ecosystem, lessens groundwater recharge capacity and poses threats of flash floods. Enforcement of floodplain zoning regulation is a must to avert floods.

The Kerala flood of 2018....

xxx xxx xxx The lack of regulation and enforcement of land use in the floodplains added to the severity of the damage.

xxx xxx xxx Floodplains provide the space for rivers to spread their waters. When this space is missing due to encroachments, the river surges up and creates destruction.

"The lack of protection of river floodplains from damaging impacts like encroachment and diversion for 'developmental projects' is a tragedy that affects both the river as well as those who encroach it adversely. The river suffers as it is unable to occupy and transport flood waters downstream during high rainfall events (monsoon in particular). It is unable to recharge aquifers, wet the lands along its banks or provide life-sustaining conditions to plant and animal habitats along the river margins and banks. .....

Damage to floodplains harms the riverine ecosystem, lessens groundwater recharge capacity and poses threats of flash floods. "People too suffer an immense loss of life and property, including loss of public infrastructure like bridges, roads, schools etc., during high floods,".

ii. Article from Wikipedia under the heading "Floodplain"6, it is stated:

"xxx xxx xxx Floodplains can support particularly rich ecosystems, both in quantity and diversity.

                          xxx                    xxx                  xxx



5
 Author:      Amita     Bhaduri     :   https://www.indiawaterportal.org/articles/sad-state-

floodplains#:~:text=Damage%20to%20floodplains%20harms%20the,poses%20threats%20of %20flash%20floods.&text=The%20lack%20of%20regulation%20and,the%20severity%20of% 20the%20damage.

https://en.wikipedia.org/wiki/Floodplain 18 A floodplain can contain 100 or even 1,000 times as many species as a river. Wetting of the floodplain soil releases an immediate surge of nutrients: those left over from the last flood, and those that result from the rapid decomposition of organic matter that has accumulated since then. Microscopic organisms thrive and larger species enter a rapid breeding cycle. Opportunistic feeders (particularly birds) move in to take advantage. The production of nutrients peaks and falls away quickly; however, the surge of new growth endures for some time. This makes floodplains particularly valuable for agriculture."

12. The Hon'ble Supreme Court, vide judgment dated 30.07.2009 in D.D.A. vs. Rajendra Singh, 2009 (8) SCC 582, referred to the definition of floodplain in the dictionary as follows:

" xxx xxx xxx

24. Though there is no statutory definition for "riverbed" and "floodplain" from the statute, the dictionary meaning of the same is as under:

"Riverbed" has been defined as the area over which the river flows. In the Thames Conservators Case [1897] 2 QB 335 at 337 it was held that the word riverbed denotes that portion of the river which in the ordinary or regular course of nature is covered by the waters of the river.

The "bed of the river" was defined as the area covered by the river and is the space sub-adjacent to the river over which it flows between the banks. It is the space between the banks occupied by the river at its fullest flow.

The Black's Law Dictionary, 6th Edition (Pg 154) describes a river bed as the hollow channel of a water course; the depression between the banks worn by the regular and usual flow of water; The land which is covered by the water in its ordinary low stage; The area extending between the opposing banks measured from the foot of the bank from the top of the water at its ordinary stage. P. Ramanatha Aiyer's Advanced Law Lexicon, Volume 4, 2005 Edition (Pg. 4157-4158) has described the bed of a river as the space contained between the banks; river bank in turn has been defined in the same law lexicon as the boundaries of a river throughout its width when the water flows to its maximum quantity.

"Floodplain'" - Land adjacent to rivers, which, because of its level topography, floods when river overflows. [Black's Law dictionary, 6th Edn., p.641].

It is also been defined as 'a low, flat area in either side of a river that can accommodate large amounts of water during a flood, lessening flood damage further 19 downstream' [Fredd Michaels, 'Dictionary of Environment Studies']

13. The Tribunal while considering restoration measures for Yamuna and Ganga rivers dealt with the issue of floodplains. Vide judgement dated 13.01.2015 in OA No. 6/2012 and OA No. 300/2013, Manoj Misra vs. Union of India & Ors. reported in 2015 ALL (I) NGT REPORTER (1) (DELHI) 139 in the context of river Yamuna, it was observed:

"81. Floodplain zoning has been accepted as an important nonstructural strategy for flood management. The basic concept of floodplain zoning is to regulate land use of floodplains to restrict damage caused due to floods. The floodplain zoning, therefore, aims at determination of locations so that flood damages are reduced to minimum. A very restrictive activity can be allowed in that area. It is not only to protect the areas from damage resulting from floods and failure of water protective measures, but is also useful in reducing the damage caused due to drainage congestion, particularly in urban areas. The Commission claims to have prepared a model bill relating to floodplain zoning. This model bill provides for different categories based of priorities in floodplain.

82. xxx xxx xxx

83. The floodplain must be demarcated, kept free from any permanent developments and wherever it is possible, it should be restored to its original position.

84. Keeping in view the fact that various developments have taken on the floodplain of river Yamuna and to a larger extent they have adversely affected the river flow, its ecology and bio-diversity, we would direct that floodplain zoning should be taken with reference to the flood of once in 25 years, as against other suggested figure of more years. It is important to demarcate the floodplain on this basis immediately, to protect it from any encroachments or development activities, which has already discussed and requested by the High Powered Committee, would adversely affect the ecology and environment.

85. Thus, it is necessary to call upon the authorities to demarcate the floodplain for the flood of once in 25 years and to prohibit any kind of development activity in the area in question. Furthermore, the Committee should consider restoration of the area and wherever necessary, even demolish the properties, which are likely to be dangerously exposed to the flood and are even affecting the ecology and bio-diversity and flow of the river.

xxx xxx xxx 20

89. Subject to any law coming into force, we have already stated that flood of once in 25 years would be considered for defining and demarcating the flood plain. No development/construction activity, except that is stated herein, would be permitted in the Flood Plain of River Yamuna. No authority or person before us has even taken up the plea that why development/construction activity cannot be carried on in other parts of NCR, Delhi. As of now, sufficient land is available, may it is expensive, but that cannot be a ground for destroying the ecology, environment and biodiversity of River Yamuna of Delhi. The result of indiscriminate, unregulated and uncontrolled development activity are widely visible and felt by each and every one in Delhi. It would not only be unwise, but may prove fatal, if such approach is continued any further."

14. Vide judgment dated 13.07.2017 in OA No. 200/2014, M.C. Mehta vs. Union of India & Ors. reported in 2017 NGTR (3) PB 1 in the context of river Ganga, it was observed:

"xxx xxx xxx

142. Being an integral part of the river, floodplain of the river requires protection. Floodplains play significant role in maintaining the bio-diversity and aquatic life of the river. It's significance cannot be overlooked, in terms of environment and ecology. There are numerous dimensions involved while identifying the floodplains. It is required to categorize it into different zones, namely, No Development Zone, Regulated Zone and a Free Zone for development. The principle of Sustainable Development itself justifies the classification of floodplains into such zones for protecting the river. This Tribunal in the case of Manoj Misra (supra) had the occasion to deal with the concept of floodplain, its zoning and management."

xxx xxx xxx During the course of proceedings before the Tribunal, the stakeholders also deliberated in favour of demarcation of floodplain of river Ganga, for ensuring protection and maintenance of the health of the river. The above stated precedent of the Tribunal also has its definite reference in the Notification dated 7th October, 2016 issued by the MoWR. In sub-clause (ix) of clause 4(v) of the Notification which relates to Principles to be followed for rejuvenation, protection and management of river Ganga, states that the bank of river Ganga and its floodplains shall be a construction free zone to reduce sources of pollution, pressure on floodplains and to maintain its natural groundwater recharging properties. This clearly demonstrates that fixation of the floodplain and its demarcation is one of the principal projects for cleaning and rejuvenation of river Ganga, amongst all the 21 stakeholders. As already stated, the project at priority is to clean river Ganga and not to diversify financial resources to the subsidiary function of cleaning innumerable drains in the city. There are innumerable factors consequential to pollution of floodplains of the river. Indiscriminate and unplanned constructions or developments, carrying on of unauthorized and impermissible activities, dumping of municipal solid waste, bio-medical waste and E-waste in and around the floodplains, are some of the main contributors of pollution in river Ganga.

xxx xxx xxx

182. ... The constitutional duty upon the citizens is to protect and improve the nature, environment including forests, rivers, wildlife and to have compassion for living creatures. No industry much less the State or its instrumentality can be permitted to indulge in pollution of natural resources particularly the river for economic benefits. It is a settled principle of law that the Polluter Pays Principle and Precautionary Principle have to be read into the Principle of Sustainable Development. Normally, they are applied collectively. Restrictions imposed are inbuilt fact of sustainable developments and that itself serves the cause of Intergenerational Equity. To protect and improve the environment has a direct nexus to the quality of human life, thus, all environmental principles must come to the aid of the Courts and Tribunals for furthering the cause of Sustainable Development. In the case of 'Vellore Citizens Welfare Forum vs. Union of India' 1996 5 SCC 647 held with approval:

"The concept of development to say that the traditional concept that development and ecology are opposed to each other is no longer acceptable. Sustainable Development is the answer i.e., development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. It is intended to improve the quality of human life, while living within the carrying capacity of the supporting ecosystems. The 'Precautionary' Principle and 'Polluter Pays' Principles were, therefore, said to be the essential features of the Principle of Sustainable Development."

        xxx                             xxx                xxx


        182.1       xxx                 xxx                xxx

7. Till the demarcation of the floodplains and identification of permissible and non-permissible activities by the State Government of this judgement, we direct that 100 meters from the 22 edge of the river would be treated as no development/construction zone in Segment-B of Phase-I (Haridwar to Unnao, Kanpur)."

15. In view of averments made by the applicant that the river beds is proposed to be affected by setting up of the Medical College or other permanent constructions in the floodplain of the river, there is need to prevent irreversible damage to the riverine ecology by enforcing the applicable rules, if any. If there are no rules, appropriate norms need to be laid down considering such norms in other similar situations in consultation with the experts."

17. In view of above, we find it necessary to issue direction under Section 15 of the National Green Tribunal Act, 2010 for protection of the wetlands, water bodies and flood plains in the entire State of West Bengal, consistent with judgment of the Hon'ble Supreme Court in M.K. Balakrishnan & Ors. v. Union of India & Ors. supra and orders of this Tribunal referred to above. Compliance of this direction may be overseen by a Committee to be headed by the Chief Secretary, West Bengal with State PCB, State Wetland Authority, nominee of National Wetland Authority and the Regional Officer, CPCB as members. The Member Secretary, State Wetland Authority will be the nodal agency for coordination and compliance. Meeting of the Committee may be held within two weeks and action plan and methodology for execution thereof for identification and protection may be prepared preferably within one month and executed within six months. It will be open to any stakeholder to give their suggestion. Measures be taken for identifying the wetlands, water bodies and flood plains and taking steps for their protection, after assigning them unique identification numbers. Plan may include steps to protect the catchment areas by preventing dumping of waste, filling up for commercial benefits. National Wetland Authority may issue SOP/ guidelines on identification of wetlands/or water bodies having environmental and ecological significance, if such guidelines have 23 not been issued. The Committee may coordinate with concerned Departments so that water bodies may be identified, Geo-tagged and their flood plain zones and catchment areas demarcated. Water logged areas, having temporary span of water holding, also play important link in saturating sub soil strata as well as rendering ecological services and thus need protection. The Minutes of Committee be placed on the website of the State Wetland Authority.

The application is disposed of.

If any grievance survives, it will be open to the aggrieved party to take remedies in accordance with law.

A copy of this order be forwarded to the Chief Secretary, West Bengal, State PCB, District Magistrate, Hooghly, Regional Officer, CPCB, Member Secretary, State Wetland Authority and National Wetland Authority by e-mail for compliance.

In view of order in the main matter, all pending M.A.s also stand disposed of.

Adarsh Kumar Goel, CP Sudhir Agarwal, JM B. Amit Sthalekar, JM Saibal Dasgupta, EM Prof. A. Senthil Vel, EM May 09, 2022 O.A. No. 65/THC/2016/EZ A 24

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