National Green Tribunal
Kishore Samrite vs Union Of India on 11 July, 2023
Item No.05 (Bhopal Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Execution Application No.06/2022(CZ)
in
Original Application No.04/2015(CZ)
Kishore Samrite ...Applicant
Versus
Union of India& Ors. ...Respondent(s)
Date of hearing: 11.07.2023
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant: Mr. Dharamvir Sharma, Advocate
For Respondents: Mr. Sachin K.Verma, Advocate for State
ORDER
1. Heard counsel of the applicant and Mr. S.K. Verma, standing counsel for the respondents.
2. This Execution Application 06/2022(CZ) has been preferred by the applicants Kanchan Kochar, Yatharth Kochar, Niswarth Kochar and Chintan with a prayer that order dated 13.12.2021 passed by this Tribunal in OANo. 04/2015(CZ) be directed to be obeyed by the respondents and for non-compliance appropriate action under Section 26 and 28 of National Green Tribunal Act, 2010 (herein referred to as 'NGT Act, 2010') be initiated against the said officials.
3. Original Application no. 04/2015(CZ) was filed by two applicants namely Kishore Samrite and Suresh Kochar, alleging that Balaghat district is situated at the boarder of Maharashtra and there is a big forest area. Within 3 kms from the Balaghat City, there are 7 water bodies 1 namely Motil Tal, Devi Ka Talab bearing Khasra No. 319 having area 6.43 hecatre, Darri Talab Kh.P.H. No.13/2, Kh. No. 257/1-8, area 1.55 hec.P.H.; one Talab situated at village Yagkhuri at P.C. No. 13/1 bearing Kh. No. 12/1, 12/2 having area 3.85 hectare; Talab situated at village Budi at P.H.No.13/1, Kh. No.115/1-2,3,4 having area 3.403 hectare; River situated at village Budi, Kh. No. 137 having 9.255 hectare; Talab situated at village at Nazul Block P.C. No. 13/1, bearing no. 26 having area 1.238; and, Dhobi Talab situated at Nazul Block at P.C. No. 13/1 bearing Kh. No. 354 having area 2.367 hectare.
4. It is further said that maximum parts of the aforesaid talab are encroached upon by the encroachers. With the manipulation in the revenue entries and in connivance with Revenue officers, plots are being sold on the land which is part of talabs. Despite there being National Policy 2022 for restoration of water bodies and maintenance, the talabs have been allowed to be encroached upon and got damaged.
5. There is also discharge of untreated effluent in talab causing pollution in violation of provisions of Water (Prevention & Control of Pollution) Act, 1974.
6. Original Application was considered on various dates by Tribunal and finally decided vide order dated 13.12.2021.
7. Order dated 13.12.2021 considered the earlier proceedings. It shows that on 06.02.2015, Tribunal admitted the petition and issued notices to respondents -UOI, CGWB, State of MP, MP State PCB, Collector, Balaghat, Municipal Corporation, Balaghat, Town and Country Planning Department, MP. Tribunal also added Chief Secretary and Principal Secretary, Housing and Environment, M.P., as parties. The 2 authorities were directed to submit a report with regard to status of environmental damage and steps taken to protect the environment.
8. State of MP in its reply filed on 30.03.2015 gave details of seven water tanks. It was stated that in four water tanks, there was no discharge of sewage and water quality was good but in three water tanks, there was construction of police quarters since 2000. In Devi Talab, there was permanent construction on a part and construction was being made on the remaining for which proceedings were taken by Revenue Department. Permission for backfilling of talab was granted in the interest of general public on 09.11.2001.For Darri Talab, there was encroachment by jhuggi jhopadies and State Government has given lease (patta) as per Rajeev Gandhi Mission. The water bodies are shown as per Master Plan dated 23.05.2006. Possibility of discharge of sewage in the remaining area of Devi and Darri water tanks was not ruled out as there was human settlement in the area where sewage is generated. Details of the tanks are as follows:
" Sr. Name of Tank Khasra No. Area Described in
No. Revenue records
as
1 Ama Talab 115/1, 2, 3, 4 8.41 Below the water
(M.P. Govt.)
2 Police Line Talab 26 3.05 Below the water
(M.P. Govt.) Police
Quarters
constructor
3 Mehra Talab 43 3.85 Below the water
(M.P. Govt.)
4 Moti Talab 310 52.16 Below the water
(M.P. Govt.)
5 Dhobi Talab 354 5.85 Below the water
(M.P. Govt.)
6 Devi Talab 319 16.14 Rishap Developers
& others, the
diversion has been
carried out with
favour of builders.
7 Darri Talab 257/1 4.23 Below the water
(M.P. Govt.) "
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9. Vide order dated 11.08.2015, Tribunal impleaded Environmental Planning and Co-ordination Organization (EPCO) as party as the said organization was concerned with protection of water bodies in State of MP.
10. On 17.12.2015, Tribunal dealt with M.A. No. 714/2015 in OA 04/2015(CZ) filed by 73 persons to intervene in the matter objecting the proceedings initiated by Municipal Council, Balaghat against the said persons. However, Tribunal directed Collector, Balaghat to proceed in accordance with the directions of Supreme Court in Jagpal Singh & Ors. Vs. State of Punjab1 and order of MP High Court, Gwalior Bench in Shri Rinkesh Goyal Vs. State Government, reported in 2011 (2) M.P.H.T 519 (DB) directing as follows:
"(1) That, in each divisional level a Committee be constituted under the Chairmanship of Revenue Commissioner of the division to monitor the effective implementation of the water conservation schemes introduced by the Government for the aforesaid purpose.
(2) The Committee shall also ensure that there should not be any encroachment over the land of ponds, tanks and lakes, and if, there is any encroachment that be removed immediately. (3) The State Government shall take effective steps in regard to water harvesting and ground water level management so the problem of reducing the level of ground water could be tackled.
(4) A copy of the order be sent to the Chief Secretary of the State and also the Secretary, Revenue Department of the State."
11. Reply of EPCO was considered vide order dated 22.04.2016 wherein list of 270 water bodies was given. Tribunal directed EPCO to submit district-wise report. Vide order dated 01.10.2016, Tribunal considered the grievance of illegal conversion of pond land by District Collectors and directed as under:
"We make it clear that notwithstanding any ownership in the area of the lake no construction or land conversion shall be permitted by the District Collector/State Government."1
(2011) 11 SCC 396 4
12. On 16.11.2016, Tribunal noticed general problem of encroachment of catchment areas of water bodies in rural areas, contrary to the mandate of Functioning of Lake Conservation Guidelines 2010 of MoEF&CC. Accordingly, Tribunal directed State of MP as well as UOI to follow the said guidelines.
13. Vide order dated 10.04.2017, after noting the orders of Supreme Court and MP High Court, and also orders for survey of all water bodies in the State, Tribunal directed Chief Secretary, MP to coordinate with Collectors for compliance of law. Tribunal also referred to the directions of Supreme Court in M.K. Balakrishnan and Ors. vs. Union of India, (2017) 7 SCC 805, directing that Wetlands (Conservation and Management) Rules, 2010 will apply to the wetlands compiled in the Atlas for protecting wetlands and areas adjacent thereto, even in absence of notification of a wetland. Vide order dated 19.02.2019, State Government was directed to give information about water bodies in the State and status of compliance of environmental norms in relation thereto.
14. On 25.05.2017, District Collector, Balaghat filed a compliance report about demarcation of water bodies. As per reply dated 29.11.2017of Municipal Council, Balaghat, no construction is permitted within 30 meters from FTL point of the pond but 147 buildings had been constructed near Devi Talab since many years, demarcation report in respect whereof was also annexed.
15. EPCO in its report dated 28.03.2019 has furnished information received from 26 districts.
16. To complete the record, we may also note that original applicant SureshKochar was replaced vide order dated 04.02.2016, who died on 5 27.08.2020. IA No. 76/2021 was filed seeking substitution of his legal heirs, Yatharth Kochar, son of Lt. Mr. Suresh Kochar, Niswarth Kochar, son of Lt. Mr. Suresh Kochar, Chinta and S. Matta daughter of Lt. Mr. Suresh Kochar, all residents of Ward No. 20, Main Road, Balaghat, M.P.- 481001 as applicants. The said application was allowed.
17. M.A. No. 823/2015 was filed on behalf of applicant for taking on record documents filed which are orders of different courts about rival disputes of private individuals in respect of land around Devi Talab.
18. M.A. No. 824/2015 was filed on behalf of M/s Rishabh Developers and Builders who was aggrieved with the direction of stopping constructions within the pond and adjoining lands as that the said pond was having contaminated water and it was a health hazard.
19. Master Plan was amended on 26.05.2006 changing land use of pond against which W.P. No. 1821/2010 was dismissed by MP High Court on 28.04.2010 which was upheld by Division Bench of High Court in W.A. No. 646/2010. Thus, change of land use has attained finality.
20. Title dispute of one Umrao Bi was decided by Civil Court and finally by High Court vide judgment dated 17.11.1980 against which SLP was dismissed by Supreme Court on 09.12.1993.
21. Reference was also made to judgment of M.P. High Court dated 22.08.2002 in W.P. No. 4434/2003 deciding a second appeal between rival claimants and further orders in the said matter. It was also observed that State Government was not owner of the land in respect of 16.14 acres in khasra no. 319 of Balaghat town.
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22. It was further stated that W.P. No. 6645/2002 filed by Suresh Kochar against order of Board of Revenue, MP dated 24.08.2002 was dismissed by High Court on 13.10.2010.
23. Master Plan was prepared under provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 as land of the water body was unfit for human activities and water was unfit for consumption as drinking water, vide notification dated 03.05.2006.
24. In the backdrop of the above proceedings, Tribunal considered the issue and observed in para 15 that Tribunal is not a forum to go into correctness or otherwise of the decisions already taken in any other judicial proceedings. Scope of proceedings before Tribunal is to deal with the environmental issues. With regard to individual issues, parties are free to take remedies in accordance with the law.
25. In the OA, the issue in general, was for protection of water bodies. This issue was already considered by Tribunal in O.A. No. 325/2015,Lt. Col. Sarvadaman Singh Oberoi vs. Union of India & Ors. decided on 18.11.2020 and O.A. No. 351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors.
26. The directions were issued in the said orders with regard to role of water bodies in eco-system and the same had to be protected by State under Public Trust Doctrine. Tribunal quoted relevant extract of order dated 18.11.2020 in O.A. No. 325/2015 in para 16 of the judgement dated 13.12.2021. Similarly, relevant extract of order dated 25.11.2021 passed in O.A. no. 351/2019 were quoted in para 17 of the final order dated 13.12.2021.
27. In the backdrop of the aforesaid directions reproduced in the order, Tribunal at para 18,19 and 20 said as under:
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"18. We also note that the Ministry of Urban Development, Government of India, Central Public Health and Environmental Engineering Organization (CPHEEO) has issued an advisory on "Conservation and Restoration of Water Bodies in Urban Areas" in August, 2013 which need to be followed. The matter was also considered by the Standing Committee on Water Resources (2015-16), Sixteenth Lok Sabha. Its Tenth Report has been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation under the heading "Repair, Renovation and Restoration of Water Bodies-Encroachment on Water Bodies and Steps Required to Remove the Encroachment and Restore the Water Bodies" in August, 2016. Further, the "Guidelines for the Scheme on Repair, Renovation and Restoration (RRR) of Water Bodies under PMKSY (HKKP)" have been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation, Govt. of India in June, 2017. The said report also provides useful material to be looked into by the enforcement agencies.
19. As regards, report of the CPCB on the subject of rain water harvesting, it appears that CPCB has not appreciated the direction of this Tribunal on the subject. While rain water harvesting may be required in all buildings and other places in urban areas, in the present context, the Tribunal has directed setting up of such facilities in sub water sheds along ponds for utilization of surplus rain water for restoration of the ponds which have become dry and for augmenting other ponds.
20. There is, thus, need for continuous planning and monitoring at National, State and District levels. Suggestions and observations of CPCB and the Oversight Committee need to be acted upon."
28. Neither any specific direction was issued in respect of any individual concerned nor there is any particular direction for removal of encroachment of any particular person.
29. Tribunal simply disposed of application directing that compliance of environmental norms for protection of water bodies may be monitored in every district by District Magistrate at regular intervals which may also be monitored by Chief Secretary of State in accordance with the direction of Tribunal on the subject, quoted above. Any decision of State Authorities has to be compliant with the Central Environmental Laws on the subject that is Water (Prevention & Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) act, 1981 and Environment Protection Act, 1986 and rules and orders framed there under including Wet Land Notice. 8
30. The present application has been filed alleging that encroachment is continuing but no action has been taken but who has made these encroachments is not stated nor anyone has been impleaded where against any action could have been taken by this Tribunal.
31. In the absence of any parties impleaded, who have allegedly encroached water bodies land, we do not find that any effective order can be passed by this Tribunal in execution application.
32. Moreover, the applicant is seeking action under Section 26 and 28 of NGT Act, 2010. Section 26 declares failure of compliance of Tribunals order to be an offence and cognizance of such offence can be taken under Section 30 by a Metropolitan or by a First Class Magistrate and not by this Tribunal. Therefore an application under Section 26 and 28 is maintainable before concerned Magistrate who is competent to try the offence under NGT Act, 2010 and such application is not maintainable before this Tribunal.
33. In view of the above discussion, the application is dismissed.
Sudhir Agarwal, JM Dr. Afroz Ahmad, EM July 11, 2023 Execution Application No.06/2022(CZ) In OA No.04/2015(CZ) N 9