National Green Tribunal
Mrs. Savita Kumari vs The State Of Jharkhand Through The Chief ... on 25 September, 2020
1
Item No. 01
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 99/2016/EZ
(M.A. No. 02/2017)
Savita Kumari Applicant(s)
Versus
State of Jharkhand & Ors. Respondent(s)
Date of hearing: 25.09.2020
CORAM: HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Ms Paushali Banerjee Adv for Applicant
For Respondent(s): Mr Rajib Ranjan Ld Advocate General for
State of Jharkhand a/w Ms Aishwarya
Rajyashree Adv for R-1,4 & 5
Mr Surendra Kumar Adv for R-3
Mr.Imran Siddiqui Adv for R-6
Mr.Gora Chand Roy Choudhury Adv for
R-2
ORDER
1. By order dated 10.06.2020, we have set out the principal questions arising in the case which we may repeat for the sake of convenience.
2. It is inter alia alleged that the stream which is of about 5 km in length and 30 feet in width is on the verge of 2 extinction due to unauthorized and illegal constructions.
The Dhobia talab (a lake/water body) which was originally 12 acres in size has now shrunk to only 5 to 6 acres. The Jhinjharia stream is stated to flow through Hazaribagh to join Konar river in the periphery of Hazaribagh town. It is stated that the sewage of the entire residential area is discharged into the stream grossly polluting and contaminating it. Dhobia talab which is situated in the vicinity of Anandpuri colony, a residential colony, gets severely polluted by the sewage discharged from the colony in addition to the heavily polluted water of the Jhinjaria stream. The Applicant contends that this has proved to be deleterious to the aquatic animals and natural vegetation as well as threat to the very existence of the Talab. River Konar which is the main source of water for the Hazaribagh town consequently also gets polluted due to the water of the Jhinjaria stream. Besides the matter relating to discharge of untreated water and sewage, question relating to disposal of municipal solid waste into the talab and the Jhinjaria stream, had also arisen in the case.
33. Reports were thus called for from time to time from the State PCB on the quality of water based on the tests carried out on the samples collected at various stretches of the stream and different points of the water body (Talab) based upon "designated best use" as per CPCB classification as well as to identify the actual cause of pollution and the details of the source of such pollution.
As regards disposal of the garbage, building construction debris and encroachment by constructions on the water bodies is concerned, vide order dated 06.12.2016, the Deputy Commissioner, Hazaribagh was directed to inspect and survey the area, and, to submit a report giving details of the revenue area within which the water body would fall and to give details as regards the original area of the stream and talab (water body), its width and the present position clearly stating as to whether there was any diminution of such area. The information was also called for on the question as to whether there was any encroachment in the water body.
4. As the consequential reports filed by the Deputy Commissioner, Hazaribagh and the State PCB consequent to the above directions revealed conflicting statements in 4 respect of the Dhobia Talab, an independent person was appointed as a Court Commissioner. By order dated 21.09.2017, the State Respondents were directed to consider the various aspects indicated by the Court Commissioner in its report and to take appropriate remedial measures for mitigation recommended in the report and to suggest an action plan for a long-term solution of the vexed issue.
5. Report was also called from the State on the action taken towards compliance of the Solid Waste Management Rules, 2016, particularly to Rule 11 thereof, vide order dated 12.01.2108.
6. After a long hiatus, the matter came up before us on 10.06.2020 and then 10.06.2020, when the Court Commissioner's report filed on 11.08.2017was formally accepted and, considering the urgency of the matter and to ascertain the current factual position, a Committee was constituted comprising of (i) the Regional Office, MoEF&CC; (ii) the Regional Office, CPCB; (iii) the Jharkhand Pollution Control Board (State PCB) and, (iv) The District Collector, Harazibagh District. The committee 5 had been required to inspect the area in question jointly, assess the situation and to propose action to be taken for mitigation of the situation indicating the appropriate authorities responsible for the works. Further construction being undertaken by encroachment of the water bodies and the stream was prohibited by an order of status quo passed on the said date.
7. The report submitted by the committee pursuant to the above order was taken up on 06.08.2020 when it was observed that the report in substance completely corroborated the report of the Court Commissioner.
Dhobia talab into which the Jhinjharia nalla flows, has been found to be in grave deficit of Dissolved Oxygen (DO), Biochemical Oxygen Demand (BOD) and Total Suspended Solid (TSS) and did not conform to the prescribed standards as per the water sample analysis.
On the western and northern banks of the talab, there were many houses which indiscriminately discharged domestic effluents into the talab and, one Apartment had been constructed adjacent to the southern side of the talab in respect of which it was stated that appropriate steps were being taken in accordance with the Jharkhand 6 Land Encroachment Act. The Sub-Divisional Officer/CO is stated to have identified the encroachers and proceedings initiated against them in accordance with the said Act. Further, as per the report, the Dhobia talab is also used for immersion of idols during festivals against which appropriate directions have been issued to prevent it. The Ompuri nalla commonly called Jhinjharia nalla which flows into the Dhobia talab has been obstructed by the Raiyati land owners at several places. Water from the Talab flows into river 5 Konar at a distance of 5 km.
Survey is being conducted in respect of land falling under the Dhobia talab and, in compliance directions of the Tribunal, strict orders have been passed by the Municipal Commissioner prohibiting further constructions and encroachments of the water body. It is further stated that on 24.6.2020, the Municipal Commissioner, Hazaribagh has requested the Secretary, Urban Development and Housing Department, Government of Jharkhand to grant approval for construction of RCC nalla and culvert and to provide a consultant to prepare a Detailed Project Report (DPR) for the work.
78. We had noted that the facts set out in the report showed the situation to be extremely critical that called for the Municipal Corporation, Hazaribagh and the State Government to take serious view of the matter. The construction of RCC nalla and culvert as proposed appeared to be inadequate requiring a comprehensive action to be taken to ensure that untreated water is not discharged into the water body, encroachments are removed and the present pathetic condition of the water bodies reversed.
9. Thus, the Urban Development and Housing Department, Government of Jharkhand, the Municipal Corporation, Hazaribagh and the State PCB were directed to prepare an action plan to deal with all issues projected in the report of the Committee for prevention of untreated sewage and waste water flowing into the Dhobia Talab and the Jhinjharia stream/nalla and that solid waste are not dumped in these water bodies. It was further directed that the action plan should also include urgent steps to be taken for removal of encroachments.
810. Pursuant to the above directions, action plan has been filed by the Hazaribagh Municipal Corporation. Since the document is quite short, we may reproduce the entire report for convenience which read as follows:-
"1.1 Introduction The growing urbanization, unplanned construction, choking drains/Nalla and unavailability of sewage treatment plant, sewerage system has hampered the progress and hygienic lifestyle of people living in the city.
The water from the sewer often contaminate the ground water or surface water present in the vicinity of its command area. Currently Hazaribagh city is facing the same issue at its Dhobia Talab which is present in the vicinity of the command area of the Nalla flowing around it.
The district of Hazaribagh forms the north-eastern portion of the Chota Nagpur Division and lies between 230 25' and 240 48' north latitude and 840 29' and 860 38' east longitude. Its area is 7,016 square miles. The principal town and administrative headquarters are Hazaribagh.
Hazaribagh town is the Headquarters of the district and is located at 93 km. from Ranchi by road. The boundary of this district consists of districts of Gaya of Bihar state and Koderma in the north, Giridih and Bokaro in the easy Ramgarh in the south and Chatra in the west. The districts of Koderma, Chats, Ramgarh and Giridih have been bifurcated from this district and this district is a part of Chotanagpur plateau. 1.2 About Dhobia Talab Dhobia Talab is situated at Sadar block area near Ompuri Mohalla of Hazaribagh. One Nalla from south west corner containing sewage from nearby houses and surface runoff of St. Columbus ground and well's ground and some part of Ompuri Nalla from North West side flow into Dhobia Talab. The Nalla is located at upper gradient with respect to Dhobia Talab.
The analysis of dissolved oxygen, Biochemical oxygen demand & Total Suspended solids do not confirm to the prescribed standards as found in water sample analysis. The houses located at the western and northern side banks of Dhobia Talab indiscriminately discharge their domestic effluent into the talab.
The water of the Dhobia Talab is not used for drinking or bathing purposes. Overflow of Dhobia Talab and a portion of sewage of ompuri Nalla flow towards downside of North-east corner of Dhobia Talab from where it is named as Jhinjhiria Nalla. The sewage through Jhinjhiria Nalla flows into river Konar at a distance of about 5km from the Dhobia Talab.
Chapter 2 - Vision, Mission and Strategy 2.1 Vision for Conservation & Rejuvenation of Dhobia Talab To promote development, restoration and management of 9 Dhobia Talab in scientific manner with community participation & utilization of pond water after treatment & enhancing water efficiency.
2.2 Mission for Conservation & Rejuvenation of Dhobia Talab To prepare and implement an action plan for Conservatism & Rejuvenation of Dhobia Talab as under:
i. To identify and study the Talab area, their boundaries. ii. To take steps for regulation, control, protection, cleaning, beautification, conservation, reclamation, regeneration, restoration and construction of talab in a timebound manner.
iii. To analyze water quality of talab on regular basis for ascertaining its suitability for various uses. iv. To prepare integrated plan for development of talab as per site specific conditions and removal of encroachments. v. To promote community participation in cleaning, conservation, beautification of talab by organizing awareness programmers, workshops and seminars. vi. To develop infrastructure such as sewage treatment plant, aeration system etc. for cleaning of talab.
2.3 Strategy for Conservation & Rejuvenation of Dhobia Talab The strategy for restoration of Ponds includes i. Identification of talab & concerned stakeholders.
ii. Identification of sources of pollution.
iii. Measures for cleaning & restoration of Dhobia talab
and timelines
iv. Nodal Department
v. Monitoring and Review
2.4 Identification of the Stakeholders and their roles
Hazaribagh Municipal Corporation envisages a
comprehensive plan for Conservation & Rejuvenation of Dhobia Talab by involving following Stakeholders namely:
Urban Development & housing Department, Government of Jharkhand The Urban Development & housing Department, Government of Jharkhand will be responsible for the following:
i. Overall coordination of the Action Plan for ensuring its successful implementation ii. Regular reviews and monitoring Hazaribagh Municipal Corporation Hazaribagh Municipal Corporation has identified the talab area, provide necessary treatment facilities for their restoration and management in a scientific manner. The Hazaribagh Municipal Corporation has the following responsibilities :
i. Identification of stakeholders, restoration and management of Dhobia talab in a timebound manner ii. Finalization of appropriate technology iii. Arrangement of funds for treatment technology iv. Reuse of ponds water for any other use as per local conditions.10
v. Proper operation and maintenance of treatment facilities installed in Dhobia Talab vi. Create awareness among local population for keeping the talab pollution free vii. Any other action as directed by Government/ Hon'ble NGT from time to time.
Jharkhand State Pollution Control Board i Laying down discharge standards for talab as per CPCB Guidelines.
ii Monitoring of water quality of talab.
Hazaribagh District Administration Hazaribagh District Administrations will be responsible for identification and marking of encroachment, removal of encroachment and monitoring of the action plan at district level.
Chapter 3 Activities Involved in Conservation & Rejuvenation of Dhobia Talab The major activities involved in Conservation & Rejuvenation of Dhobia Talab are envisaged under five prominent phases, namely:
1. Recognition Phase The activities involved are • Collection and maintenance of historical information relating to the Dhobia talab.
• Collection of geographical details of the Dhobia talab. • Demarcation of encroachment • Collection of Hydrological details of the Dhobla talab. • Catchment Description of the Dhobla talab. • Digital mapping of all the collected information.
2. Restoration Phase / Gap Analysis Phase:
The activities involved are;
• Assessment of the water quality • Identification of sources of pollution, quantification and assessing detailed gap analysis (Sewage Management, Industrial effluent Management, Waste Management).
• Identification of any other associated issues which
require attention
• Removal of Encroachment
3. Protection Phase / Planning and DPR Preparation Phase:
Preparation of DPR covering following aspects:
• Waste water and solid waste management.
• De-siltation.
• De-weeding
11
• Manual, Mechanical and biological control measures.
• Prohibition of discharges or waste disposal or washing
activity and action against violators. • Stabilization of earthen bunds and the drainage channels along with silt and soil erosion control measures.
• Protection of drainage basin.
• Removal of encroachments and blockages.
• Flood control measures.
4. Improvement Phase Deals with overall improvement in the Dhobia talab:
• Adoption of in-situ techniques for in-situ remediation.
• Drainage Basin Management.
• Creation of Green or buffer zone
• Creation of Biodiversity environment.
• Monitoring the implementation of action plans.
5. Sustenance Phase/monitoring and Evaluation Phase:
• Creation of awareness among citizens groups, resident welfare associations, local organizations, activist groups, green organizations, political organizations, educational organizations and Government agencies. • Organizing periodic trainings through Identified and reputed Institutions.
• Promoting Public participation. • Dissemination of Information. • Creation of Recreational centers Chapter -4 Timeline/ Action plan Based on the CPCB guidelines, the Hazaribagh Municipal Corporation has formulated an Action Plan with specific time frame for the Conservation & Rejuvenation of Dhobia Talab as detailed below:
Sr Key Activities and Components Proposed Time Frame for No Implementation and Completion of activities (Start and End Date) Recognition Phase 1 Collection of Historical, Ongoing activity to be Geographical and completed by 31.03.2021 geological data for Dhobia Talab 12 2 Collection of catchment and lead channel pollution data, sewage disposal contamination data, industrial effluent disposal data, solid waste, plastic waste, e- waste, hazardous waste and C & D waste disposal data to talab.
3 Digital mapping of all To be completed by 31.06 202l collected Information.
(will be part of DPR preparation) 4 Details of encroachments Total 9 nos. of along with particulars encroachers have been encroachers. identified Sr. No 1 & 9 have been removed on 06.07.2020 by Sadar CO.
Hazarihag and for
remaining 2 to 8 (7 persons)
further notice have been
issued for removal and
action is under taken as
per law. Details are
attached as Annexure 1.
Gap Analysis Phase
1 Assessment of water quality To be completed by 31.03 202l
2 Reconnaissance survey to Ongoing activity to be
identify the source of completed by 31.06.2021.
pollution and prepare short
term and long term
preventive measures
through Detailed Gap
Analysis on Sewage
Management, Industrial
Effluent Management and
Solid waste Management
and other associated issues
and in-situ facility
availability for minimizing
the pollution level
Planning and DPS Preparation Phase 1 Preparation of DPR for Ongoing activity to be sewage management, completed by 31.06.2021 industrial effluent management and solid waste management and other associated issues, de-
weeding, desilting,
protection of drainage
basin, channels,
stabilization of earthen
13
bunds and preparing cost
estimation.
2 Removal of encroachments Parallel activity to be
and blockades, deciding on completed by 31.06.2021
flood control measures and
preparing Cost estimation.
3 Fund Tie up for the Parallel activity from the
implementation beginning
Implementation of Action Plan Phase 1 Tendering and To be commenced implementation immediately after obtaining financial sanction of the DPR and all construction activity to be completed within two years.
Sustenance Phase 1 Creation of awareness Parallel activity during the among citizens groups, implementation phase; to be resident welfare continued after associations, local implementation phase.
organizations, activist
groups, green
organizations, political
organizations, educational
organizations and
Government agencies.
2 Organizing periodic
trainings through Identified and reputed Institutions.
3 Promoting Public participation.
4 Dissemination of Information.
5 Creation of Recreational centers
11. Ms. Paushali Banerjee, learned Counsel for the Applicant, submits that the action plan is inadequate in respect of certain components and has pointed out Sl. No. 4 of Recognition Phase, Sl. No. 2 under Gap Analysis Phase, Sl. No. 1 in the Planning and DPR Preparation Phase and, 14 Sl. No. 1 in Implementation of Action Plan Phase under Chapter 4 of the action plan. Referring to Sl. No. 4 of the Recognition Phase, it is submitted that the Committee has not made a mention of the illegal structure of the apartment constructed adjacent to the southern side of the talab as indicated in the report of the Committee. As regards the item no. 2 of the Gap Analysis Phase and item no. 1 of the Planning and DPR Preparation Phase, it is submitted that the columns are bereft of details and the timelines prescribed are inordinately long. Finally, as regards the tendering implementation under the Implementation of Action Plan Phase, we have observed that the timeframe prescribed is vague and nebulous.
12. Today, we have Mr. Rajib Ranjan, learned Senior Advocate and the present Advocate General (AG) of the State of Jharkhand before us in connection with some other matter. We have requested the learned AG to take up the matter personally and to impress upon the concerned authority to take up the matter more seriously having regard to the fact that the Dhobia Talab is a very important water body fed by the Jhinjharia stream maintenance of which would be of paramount 15 consideration for protection of the ecology and environment of the area. The Tribunal, in some other cases has directed restoration of the water bodies as it plays an important role in maintenance of the ecology and recharge of the ground water. Reference in this regard may be made to M.A. No. 26/2019 in O.A. No. 325/2015.1 The relevant portion of the order dated 01.06.2020 reads as follows:
"Reference"
1. .....
2. The matter was last considered on 25.02.2020 in the light of the status report handed over during the hearing in pursuance of earlier directions vide order dated 10.05.2019. Order dated 10.05.2019 inter- alia is as follows:-
"2. This application was filed on 14.08.2015 before this Tribunal in the context of Gurgaon District and as per status report as on 09.03.2017 filed before this Tribunal on behalf of State of Haryana referred to in the order dated 20.07.2018, there are 1216 water bodies in the State of Haryana which are larger than 2.25 Ha and 123 water bodies which are in possession of the State in Gurgaon District while the total number of the water bodies are 641 (later corrected as
647) in Gurgaon District. The Tribunal directed that for 123 water bodies which are in possession of the State, steps be taken for their proper maintenance and restoration. An exercise be undertaken in the entire State of Haryana to identify water bodies. On such identification, water bodies be assigned Unique Identification (UID) number and steps be taken for restoration. Report was sought within six months.
3. Status report has been filed vide email dated 25.04.2019 by the Haryana Pond and Waste Water Management Authority 1 Lt. Col. Sarvadaman Singh Oberoi v. Union of India & Ors.16
(HPWWMA) stating that HPWWMA has been established under a State Act called the HPWWMA Act, 2018 notified on 23.10.2018 for development and protection of ponds and matters connected therewith. Pond has been defined as a tank or lake or any other inland water body having an area of 0.5 acre or more. The authority is to undertake survey and take steps for restoration of water bodies, PDMS (Pond Data management System) has been developed which can be accessed through "http://hpwwma.org": DPMOs (District Pond Management Officers) are appointed for each District. As per PDMS data, 16306 ponds fall under the Panchayats and 265 ponds fall under the Urban Local Bodies. The same have been given UID numbers and work of development will be undertaken by DPD (Development and Panchayat Department). The work for connecting the ponds with the nearby canal network will be executed by the IWRD (Irrigation and water Resources Department). 200 most problematic and overflowing ponds will be addressed during 2019-20. 193 model ponds which are overlapping with the said 200 ponds will be developed in first phase for which a plan has been prepared.
4. The Gurgaon Metropolitan Development Authority (GMDA) has also given a report to the effect that water bodies in the District are owned by 20 different entities. Work of restoration of 123 water bodies was taken up which has been widened to improve 647 water bodies. In all 826 water bodies, as found as per record, the task involves identification and verification of data, review and categorization of water bodies, assigning UID numbers, preparation of maps and analysis of information in regard to size, restoration potential, etc. 20% of the water bodies are at risk due to discharge of untreated sewage, industrial effluents or waste water.
5. Learned counsel for the applicant submits that not even a single water body has so far been taken up for restoration inspite of the exercise undertaken for identification of the water bodies. The steps for preventing dumping of solid waste or discharging of effluents are urgently required. The State of Haryana may take necessary steps in terms of the status report referred to in para 3 & 4 above as well as in the light of general 17 directions which we propose to issue to all the States/UTs.
6. There can be no dispute that the water bodies play significant role in recharge of ground water, preventing soil erosion, harnessing rain water and maintaining micro-climate in the area. Need for conservation and protection of water bodies is thus obvious. This requires involvement not only at the level of the State but also at the level of the community for which State needs to take initiative. The threat caused to the water bodies is by dumping of waste, discharge of effluents and encroachments. The steps required for restoration will include preparation and implementation of catchment area treatment plans, setting up of green belt and wherever viable setting up of bio-diversity parks around the water bodies, cleaning up of the garbage/debris and demarcation by the Revenue Department on identification survey and demarcation. Each water body is required to be given a geo-referenced- UID and an action plan is required for restoration and protection of each of the water bodies. In this view of the matter, need for conservation and protection of water bodies is not confined to the State of Haryana alone but extends to the whole country.
7. The Hon'ble Supreme Court in HinchLalTiwari v. Kamala Devi &Ors. (2001) 6 SCC 496 observed:
"It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is falling in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites."18
8. The above observations advance the Public Trust Doctrine which is based on the principle that certain resources like air, water and forests have such great importance to the people as a whole that the same cannot be subject of private ownership. The same are gift of the nature and should be made freely available to the people. The Doctrine requires the State to protect such resources and not to permit them to be used for private or commercial purposes.2 This concept is applicable to wetlands and all water bodies which is essential for protection of the environment. If the ponds and other such water bodies are not protected and conserved, this will in turn affect recharge of ground water, rain water harnessing and soil preservation.
9. Ground water conservation remains a challenge. This led the Hon'ble Supreme Court to direct constitution of the Central Ground Water Authority (CGWA) vide order reported in M.C Mehta v. Union of India &Ors, (1997) 11 SCC 312. The data compiled by the said authority shows that there are over exploited, critical and semi critical areas (OCS). The ground water is on the decline in the said areas. In this regard, it may be noted that vide order dated 11.07.2018 in W.P.C No. 4677/1985, M.C. Mehta v. Union of India and Ors., the Hon'ble Supreme Court noted the report of the NitiAyog on "Composite Water Management Index", June 2018, in which it is stated, inter alia:
"In fact by 2020, 21 major cities, including Delhi, Bangalore and Hyderabad will are expected to reach zero groundwater levels, affecting access for 100 million people".
10. The Tribunal has, vide order dated 07.05.2019 in O.A No. 176/2015, Shailesh Singh Vs. Hotel Holiday Regency, Moradabad &Ors., directed the CGWA to prepare a policy for conservation of groundwater with a robust institutional mechanism for surveillance and monitoring with a view to enhance access to ground water for drinking purposes in OCS areas by way of appropriate replenishment practices which can be properly accounted and measured as well 2 (1997) 1 SCC 388, M.C. Mehta vs Kamal Nath&Ors 19 as to sustain the flood plains of rivers in terms of e-flows, augmentation of subterranean flows and preservation of other water bodies. The Tribunal also considered the matter in the context of Delhi, vide order dated 30.08.2018 inOriginal Application No. 496 of 2016, Tribunal on its own Motion Vs. Govt. of NCT of Delhi &Ors., and appointed a Committee headed by the former Judge of Delhi High Court to oversee the steps for conservation of ground water in Delhi. We also note the guidelines for National Lake Conservation Plan prepared by MoEF&CC in May 2008 as well as National Plan for Conservation of Aquatic Ecosystem (NPCA) prepared by MoEF&CC in November, 2016. Irrespective of the subject being covered by a particular State statute, the protection of water bodies is an essential need for protection of environment as held in HinchLalTiwari (Supra). Such requirement is covered by the 'Precautionary' principle as well as the 'Sustainable Development' principle which are required to be enforced by this Tribunal under Section 20 of the NGT Act, 2010. The HPWWMA Act, 2018 covers only ponds having area of more than 0.5 acres. Thus ponds of lesser area have been left out of regulation under the said Act. This aspect needs to be addressed to the extent the same remains un-addressed not only in Haryana but throughout India to the extent the existing statutory framework or guidelines do not cover comprehensively the subject of restoration of all the water bodies. The definition of water body in the Haryana Act is as follows:
"the 'pond' means a tank or lake or any other inland water body having an area of 0.5 acre or more, whether it contains water or not, and mentioned in revenue records as talab, johar, tank or by any other name and includes green belt and the peripheral catchments areas, main feeder inlet and other inlets, bunds, weirs, sluices etcbut does not include wet lands as notified by the Government from time to time."
11. The above definition shows that only ponds of area of more than 0.5 acres are sought to be restored under the statutory provisions of the said Act. While in terms of the orders of the Hon'ble Supreme Court in HinchLalTiwari (Supra) even ponds of lesser area will be covered for being protected and restored. This is also 20 imperative in terms of the concern raised in the order of Hon'ble Supreme Court dated 11.07.2018 in W.P.C Nos.
4677/1985, M.C. Mehta vs. Union of India &Ors. for conservation of ground water. If all water bodies including ponds of lesser area than 0.5 acre are not covered, this will affect the environment including recharge of ground water, harnessing of rain water, prevention of soil erosion and maintaining the micro climate. We may, however, clarify that focus may be on ponds, etc. recorded in the revenue record.
12. We may note that there are 351 polluted river stretches in India identified as such by the CPCB which need remediation. The matter is being considered by this Tribunal in Original Application No.673/2018, News item published in "The Hindu"authored by Shri Jacob Koshy titled "More river stretches are now critically polluted : CPCB. In O.A. No. 148/2016, Mahesh Chandra Saxena Vs. South Delhi Municipal Corporation &Ors., vide order dated10.05.2019, it was observed that reuse of treated sewage water as well as restoration of water bodies are connected to ground water conservation, which in turn is connected to remedying the pollution of polluted river stretches.
13. Thus to give effect to 'Precautionary' principle and 'Sustainable Development' principle, we direct all the States and UTs to review the existing framework of restoration all the water bodies by preparing an appropriate action plan. Such action plans may be prepared within three months and a report furnished to the CPCB. The CPCB may examine all such plans and furnish its comments to this Tribunal within two months thereafter. The Chief Secretaries of all the States/UTs in the course of undertaking monitoring exercise in pursuance of the order of this Tribunal in O.A No. 606/2018, Compliance of MSW Rules, 2016, may also include restoration of water bodies as one of the items as the same is also incidental to waste management which are covered by orders in O.A No. 606/2018, Compliance of MSW Rules, 2016.
14. The CPCB may prepare and place on its website guidelines in the matter of restoration of water bodies in the light of above order within one month."
213. On consideration of the status report filed before the Tribunal on 25.02.2020. The Tribunal observed:-
"3. In pursuance of the above, the learned counsel for the CPCB has handed over a status report during the course of hearing to the effect that indicative guidelines for restoration of water bodies have been uploaded on the website of the CPCB on 18.06.2019 but most the States have not submitted their action plans. Out of 435 locations monitored, 357 locations were not complying with the primary water quality criteria for bathing. CPCB constituted an expert committee vide order dated 28.08.2019 under the Chairmanship of MS, CPCB comprising, representatives of MoEF&CC, MoJS, MoHUA, IIT Delhi, officials of CPCB and DH-WQM-I as member convener. First meeting of the expert Committee was held on 16.09.2019. The Tribunal has suggested following actions:
S. Activity Organization
No proposed Responsible
.
1. Identification NRSA, State Space
and Geo-Tagging Application Centre and
of Ponds or Concerned State
Lakes in the Departments
Country
2. Assessment of Through Laboratories
Water Quality of approved under E(P) Act,
Ponds or lakes. 1986 by the Concerned
State
Department/ULBs/State
Environment
Dept./SPCB/PCC.
3. Prioritization of State Environment Ponds or Lakes Dept./SPCB/PCC. for restoration in consultation with the respective SPCB.
4. Preparation and State Environment submission of Dept./SPCB/PCC. action plans for restoration of prioritized Ponds or Lakes to CPCB for random scrutiny of proposed action plans.
5. Execution of State Environment approved action Dept./SPCB/PCC under plans. the overall supervision of Principal Secretary, Environment Department.
The CPCB conducted a workshop on the subject on 30.01.2020.
4. Learned counsel for the CPCB states that further progress in the matter is being monitored and a status report will be filed before the next date. It is stated that only 22 14 States/UTs have furnished information which is not complete while 22 States/UTs have not furnished any information.
5. Having regard to the significance of the issue and unsatisfactory response of the States as shown above, we direct that the information may be furnished by all the States/UTs by March 31, 2020 positively to the CPCB failing which the States will be liable to pay compensation at the rate of Rs. 1 lakh per month till information is furnished. Payment of compensation will be the responsibility of the Chief Secretaries of the respective States/UTs. Since we are informed that plans for restoration furnished by some of the States run even upto ten years, we direct that the action plans should provide for commencement of the work by 01.04.2020 and conclusion by 31.03.2021. The CPCB will be at liberty to issue appropriate directions to all the States/UTs by for compliance. The Ministry of Jal Shakti is also at liberty to take further remedial action in the matter.
6. A copy of this order be sent to the CPCB and Chief Secretaries of all the States/UTs and Ministry of Jal Shakti by email for compliance."
4. Accordingly, CPCB has filed its further response on 22.05.2020 seeking further time on account of Covid-19 Pandemic. The State of Assam has also filed an application seeking further time by the States in furnishing information in terms of the paragraph 5 of the order dated 25.02.2020 quoted above. The Report dated 22.05.2020 inter-alia states as follows:-
"2.2 Response received from State/UTs:
After the latest NGT order dated 25.02.2020, CPCB has circulated a detailed format seeking information on no. of identified water bodies, location details, water quality status, compliance status w.r.t. designated best use, identified water bodies which require restoration, prioritization of water bodies requiring restoration, detailed action plans for restoration of identified polluted water bodies in light of the indicative guidelines circulated by CPCB to all the States/UTs.
Till 21.05.2020, 20 States (viz. Arunachal Pradesh, Jammu & Kashmir, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Meghalaya, Mizoram, Odisha, Punjab, Sikkim, Telangana, Tripura) and 03 UTs (viz., Delhi, Puducherry and Lakshadweep) have responded out of which 23 only 09 States viz., Bihar, Haryana, Himachal Pradesh, Jharkhand, Kerala, Maharashtra, Meghalaya, Odisha and Tripura and 02 UTs viz., Puducherry and Lakshadweep have provided information as per the format circulated by CPCB. State-wise status of information received by CPCB as on 21.05.2020 is detailed in the table below:
"Sl. Name of Date of Whether Remarks
No. the State / receipt of received
UT response from informati
the States / on is as
UTs per the
subsequent to format
the order circulated
dated by CPCB
25.02.2020 (Yes/No)
and a format
circulated by
CPCB vide
letter dated
06.03.2020
1. Arunachal 21.05.2020 No
Pradesh
2. Bihar 15.05.2020 Yes
3. Delhi 14.03.2020 No Sought
and time for
27.03.2020 submissi
on of
informat
ion
4. Goa 06.05.2020 No Informat
ion 'Nil'
5. Gujarat 19.03.2020 No Sought
and informat
11.05.2020 ion from
the
concerne
d
departm
ents in
the
State
6. Haryana 20.05.2020 Yes
7. Himachal 20.03.2020, Yes
Pradesh 27.04.2020
and
20.05.2020
8. Jammu & 20.05.2020 No Sought
Kashmir time for
submissi
on of
informat
ion
9. Jharkhan 19.05.2020 Yes
d
10. Karnatak 11.05.2020 No Karnata
a ka SPCB
vide
letter
dated
16.03.20
20
submitte
d
informat
ion
submitte
d by
BWS &
SB,
Cauvery
Niravari
24
Nigama
11. Kerala 19.05.2020 Yes Kerala
SPCB
vide
letter
dated
17.03.
2020
submit
ted
inform
ation
as per
guideli
nes of
CPCB
12. Laksha 21.03.2020 Yes
dweep
13. Madhya 06.05.2020 No Sought
Pradesh time
for
submis
sion of
inform
ation
14. Mahara 31.03.2020 Yes
shtra
15. Manipur 30.03.2020 No Sought
time
for
submis
sion of
inform
ation
16. Meghal 18.05.2020 Yes
aya
17. Mizora 22.05.2020 No
m
18. Odisha 14.05.2020 Yes
19. Punjab 31.03.2020 No Sought
and time
06.04.2020 for
submis
sion of
inform
ation
20. Puduch 21.05.2020 Yes
erry
21. Sikkim 23.04.2020 No But
provid
ed on-
going
activiti
es with
regard
to
wetlan
ds
22. Telanga 23.03.2020 No
na
23. Tripura 27.03.2020 Yes "
25
5. Having regard to the fact situation noted above,we extendthe time for the States to complete action in terms of order dated 25.02.2020 till 31.07.2020. The CPCB may thereafter file its report by 31.10.2020 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.
6. However, we wish to add a further direction having bearing on the subject. We have already noted the significance of protection and restoration of water bodies for the environment. The protection of water bodies not only add to availability of water for different purposes, it also contributes to recharge of ground and maintaining e-flow in the rivers, is congenial tomicro climate in sub-watersheds as well as enhancing the natural aesthetics. While the rain water harvesting is certainly important, harvesting surplus water during excessive rains from any areasof catchment needs to be optimized by enhancing the capacity of the existing ponds/water bodies, creation of water harvesting structures in the sub-watersheds to the extent possible, apart from setting up of additional water bodies/water harvesting structures wherever viable, utilizing available funds including under MGNREGA and involving the community at large at every level. Gram Panchayats can certainly play a significant role in the matter. Once adequate capacity enhancement of waterbodies takes place, excess flood/rain water can be channelized by using appropriate water harvesting techniques. This action needs to be coordinated by the District Magistrates in coordination with the Department of Irrigation and Flood Control or other concerned Departments such as Department of Rural Development/Urban Development/Local Bodies/ Forests/Revenue etc. The District Magistrate may as far as possible hold a meeting of all the stakeholders for the purpose as per the District Environment Plan or Watershed Plan within one month from today. The District Magistrates may also ensure that as far as possible atleast one pond/water body must be restored in every village, apart from creation of any new pond/water body.
7. Action taken in this regard may be compiled at State level and reports furnished to the Chief Secretaries of the States by the concerned District Magistrates. Consolidated report of the State may thereafter be forwarded to the CPCB preferably by 31.08.2020 and CPCB may cover this aspect also in its meeting.
A copy of this order be sent to CPCB, Chief Secretaries, State PCBs/ PCCs of all States/UTs for being forwarded to all the District Magistrates and other concerned Departments and further action in above terms. The District Magistrates may thereupon forward this order to all the levels of Panchayati Raj in their respective Districts.
26The Chief Secretaries may also forward this order to their respective Extension/ Public Relation Departments for awareness and publicity."
13. It would thus appear that even under the orders passed in M.A. No. 26/2019 in O.A. No. 325/2015, as per the above directions which are applicable PAN India, the State Respondents are obliged to protect and restore the water bodies.
14. Having regard to the above facts and circumstances, let the State complete the process of preparation of the DPR by 31.12.2020 and the tendering process be commenced with immediately after completion of the DPR and its approval. We expect the Government to consider and approve the DPR expeditiously in order to enable the Municipal Corporation to adhere to the timelines set out in the action plan.
15. The other aspect which requires to be dealt with, as pointed out by the learned Counsel of the Applicant, is the unauthorized structures on the southern side of the Dhobia talab as reported by the Court Commissioner which we direct be acted against strictly in accordance with law. Next, the primary source of pollution as 27 contained in the Gap Analysis Phase should be identified and remedial action taken for diversion of all the sewage and effluent away from the Jhinjharia nalla/stream and the Dhobia talab. Pending the long term action of diversion of the sewage and the effluent to the STPs and the ETPs, the Municipal Corporation shall implement a short term measure of Phyto-remediation/Bio-
remediation, as may be advised by the experts in the field.
It may be mentioned that Phyto-remediation/Bio-
remediation does not involve much expenditure. In this regard, the Urban Development and Housing Department State of Jharkhand, the State Pollution Control Board and the Municipal Commissioner Hazaribagh, shall look into the compendium prepared by the CPCB with regard to Phyto-remediation.
16. Let a revised action plan be prepared in terms of the observations made above. Revised action plan shall be more elaborate providing specific information not as vague and nebulous as in the present action plan.
17. On the basis of the action plan prepared by the State Government and the Urban Development and Housing 28 Department and the Hazaribagh Municipal Corporation, shall ensure that the timelines prescribed shall not spill over beyond 31.12.2020.
18. With the above directions, this O.A stands disposed off along with connected M.A. However, a report of compliance shall be filed on 31.01.2021 by the Urban Development Department and the Hazaribagh Municipal Corporation.
19. We also grant liberty to the applicant to approach the Tribunal, if there is failure on the part of the authorities to comply with the directions.
S.P. Wangdi, JM Dr. Nagin Nanda, EM 25 September, 2020 O.A. No. 99/2016/EZ avt