Calcutta High Court
People United For Better Living In ... vs East Kolkata Wetlands Management ... on 24 December, 2008
Equivalent citations: AIR 2009 (NOC) 979 (CAL.)
Author: S. S. Nijjar
Bench: Surinder Singh Nijjar
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
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PRESENT :
The Hon'ble Chief Justice Surinder Singh Nijjar And The Hon'ble Justice Pinaki Chandra Ghose W.P. No. 106 of 2007 People United for Better Living in Calcutta Versus East Kolkata Wetlands Management Authority For the Petitioner : Mr. S. N. Mukherjee Mr. R. Bachawat Mr. Dhruba Ghosh Mr. Arabinda Chatterjee Mr. Tarun Aich.
For the K.M.C. : Mr. Anindya Mitra
Mr. Alok Ghosh
Mr. Achintya Banerjee
For the
East Kolkata
Management Authority : Mr. Bimal Chatterjee
Ms. Ila Chatterjee.
For the
Pollution
Control Board : Mr. Kallol Bose.
Heard on : 2.5.07; 11.5.07; 15.6.07; 18.9.07; 27.9.07; 4.10.07;
11.1.08; 18.1.08; 1.2.08; 13.2.08; 22.2.08; 7.3.08; 4.4.08; 5.5.08; 12.6.08; 13.6.08; 4.7.08; 18.7.08; 14.8.08; 22.8.08 and 29.8.08.
Judgment on: 24.12.08 PINAKI CHANDRA GHOSE, J. : This writ petition has been filed by the People United for Better Living in Calcutta (PUBLIC), is a voluntary non- profit, non-political citizen action group founded in 1990.
It is stated in the petition that the mission of PUBLIC is to improve the environment of Calcutta and promote sustainable urban living by working with Government Agencies, corporate citizens, other NGOs and stakeholders in a consultative and implementational capacity. The focus areas of PUBLIC are airs, noise pollution, land use planning including protection of open spaces and conservation of heritage buildings.
At the instance of the writ petitioners, the legal protection of the East Kolkata Wetlands (hereinafter referred to as EKW) were protected through Public Interest Litigation filed by petitioner No. 1. The said EKW has now been declared as the international protected site by the Indian Government under the RAMSAR Convention. The petitioner has filed this application to ensure protection of EKW.
It is submitted that respondent No. 8, Union of India is financing a project for Construction of a Water Treatment Plant within the said area through the Jawaharlal Nehru National Urban Renewal Mission (hereinafter referred to as JNNURM) of the Ministry of Urban Development. It is also stated that the EKW was originally protected by the order passed by this Court by an Order dated 24th September, 1992 which is reported in 1993 (97) CWN 142, where the Court held that an obligation has cast on the Government of West Bengal not to change the nature and the character of the land of the said area demarcated by the Court in the said judgment. Subsequently, the West Bengal Government came out with an Ordinance No. VII to protect the EKW and finally with the East Kolkata Wetlands (Conservation and Management) Act, 2006 (hereinafter referred to as the said Act) was promulgated in place of the above mentioned Ordinance and the said Act came into operation to provide for conservation and management of the East Kolkata Wetlands and for matters connected therewith and incidental thereto.
According to the petitioners, a project for construction of a Water Treatment Plant is being undertaken by the Kolkata Municipal Corporation (hereinafter referred to as KMC) over an area of nearly 100 acres in the Mouza Bonchtala, Dag No. 615-630, 633 (part), 634-636, 647 (part), 638-641, 642 (part), 643, 645, 648 (part), 649 (part), 650, 652 (part), 653 (part), 654 (part), 656, 658 (part), 673, 739, 745-757, 758 (part), 759-767, 763 (part), 768 and 770 (part) within the fringes of the boundary area of the EKW.
The petitioner also learnt that a huge Water Treatment Plant for producing 30 MGD of treated water within the said area of EKW has been undertaken by the KMC. The petitioner had been co-opted as the member of a standing committee under the said Act and petitioner No. 2 was nominated to represent petitioner No. 1 in the said Standing Committee.
It is submitted that the construction of the said Water Treatment Plant would result in release of large amount of effluence, at the time of construction, in to a very large water body creating great amount of pollution and as such the said Construction is not possible without the permission of the West Bengal Pollution Control Board.
It is further submitted that without following the provisions of Section 9 of the said Act and in violation of Section 10 of the said Act, the Authorities are proceeding in the matter. It is submitted that the Wetlands Management Authority under the said Act was empowered to grant sanction for change of character or mode of use of land. Such change can be only made for improvement and upkeepment of the local environment and its surroundings.
It is pointed out that the entire action of granting of sanction by the Management authority in respect of the said Water Treatment Plant is nothing but a colourable exercise of power and to render the provisions of the said Act nugatory.
It is further pointed out that such sanction has been granted by the Authority in violation of Section 18 of the said Act. The said Water Treatment Plant would also necessitate pipelines from the Water Treatment Plants to the different points along the Eastern Metropolitan Bypass from Garia to Ultadanga to cater the treated water from the said Water Treatment Plant to the said areas.
It is further pointed out that the said Water Treatment Plant would also require roads for ingress and egress from the said site as well as for additional covered area to house, a filter house, a chemical house, a control room, a godown and open construction for clarifloculator and a covered reservoir. The petitioner also states that the said Water Treatment Plant would also require a pump house to pump the treated water and staff housing for maintenance and operation of the said Water Treatment Plant. In these circumstances, it is submitted that such action would destroy the fragile eco-system at the said wetlands area.
Further point of submission is that effluence in the shape of sludge containing alum would be produced from the said Water Treatment Plant as a result of treatment of water for which provisions for disposal has to be made. The petitioner apprehends that the said sludge may be dumped either in the EKW or in a nearby water body or river channel further destroying the said fragile ecosystem.
It is further submitted that the Water Treatment Plant would destroy the EKW besides being in violation of the international obligations undertaken by the Government of India under the RAMSAR convention and rules framed thereunder, the order of the Hon'ble High Court dated 24th September, 1992 and the said Act of 2006.
It is further submitted that the attempt of the Government is to circumvent the spirit of the Act by using public necessity as a guise to achieve the said purpose. In these circumstances, it is submitted that the respondents are in violation of the international obligations undertaken by the Government of India. It is further submitted that the said actions are in violation of the Inland Fisheries Act and therefore, the same has to be stopped.
Mr. Soumendra Narayan Mukherjee, Learned Senior Counsel appearing on behalf of the petitioner submitted that the KMC did not obtain permission for the construction of the Water Treatment Plant from the Pollution Control Board.
He drew our attention to Section 3 of the said Act and submitted that the authority has been constituted under the said Act of 1996. The functions and the powers of the said authority have also been stated specifically under Section 4 of the said Act.
According to him, no project can come through without the Management Plan and according to him, no Management Plan has yet been finally prepared. Thereafter, applications made before the said authority and the authority granted the permission on that very day without application of mind. In this respect, he also drew our attention to the Environmental Impact Assessment (hereinafter referred to as EIA) and Environmental Management Plan (hereinafter referred to as EMP) Reports submitted by the KMC respectively.
Mr. Shakti Nath Mukherjee, Learned Senior Counsel appearing on behalf of the KMC relying on the notifications issued by the Ministry of Environment and Forests, Government of India on 27th January, 1994 which was modified subsequently on 4th May, 1994, 10th April, 1997, 27th January, 2000 and 13th December, 2000 respectively submitted that the EIA or EMP report which was required in respect of the Projects has been specifically set out in Schedule I of the Notification issued under Clause A of Rule 5(3)(a) of the Environment Protection Rules, 1986. In the said Schedule, the Water Treatment Plant is not included. Therefore, he submitted that for the purpose of construction of Water Treatment Plant the EIA or EMP reports are not required to be prepared by the KMC.
He submitted that the said project of (Water Treatment Plant) was duly submitted by the KMC before the management authority for approval and the said authority after deliberations made in the meeting, granted the approval by an order dated 14th February, 2007 subject to compliance of the six conditions mentioned therein.
He further submitted that in compliance of those conditions a supplementary EIA report was submitted before the said authority on July 4, 2008. Upon receipt of the said supplementary EIA Report the management authority on 15th July held a meeting and thereafter granted approval to the KMC.
Mr. Mukherjee further contended that the said report was prepared in consultation with the experts in the said field. He also submitted that the said area of 20 acres has been chosen on the very fringe of the wetlands area. The area chosen for the said Water Treatment Plant constitutes 0.00065% of the wetlands area and is located at the extreme end of the Western fringe of the wetlands area and is abutting a major road, E.M.Bypass. The said Water Treatment Plant is located on Dag numbers which are indicated in the supplementary EIA and EMP report and those Dag numbers are mentioned under Table 3 of the said Act of 2006 in Mouza Bonchtala and has been classified as productive framing area and not as water body or water body oriented area. According to him, the location of the Water Treatment Plant would not be on water body or even substantially on water body oriented area. The location will be on solid land which was previously used by KMC as a garbage dumping site and is a part of Dhapa.
He further pointed out that such construction of Water Treatment Plant is not likely to affect the final Management Plan as may be made by the authorities. The Management authority has already issued an outline for conservation and management of the EKW area. The said outline would show that the installation of Water Treatment Plant on the productive farming area will not interfere with the final Management Plan and the said project of (Water Treatment Plant) has been undertaken and is to be funded by the Government of India in 35%, Government of West Bengal in 35% and the rest in 30% by KMC under JNNURM. The said Project has been sanctioned under JNNURM by the Government of India. The sanction contains strict time limit and according to him, if the project is not completed within the said time limit, the amount so granted has to be refunded.
Mr. Mukherjee pointed out that the extension can be obtained under the said Scheme (JNNURM), if a major portion of the work could be undertaken. It is also true that final Management Plan should be prepared by EKW management authority but that would not be affected if the said Water Treatment Plant is constructed at the said area. The said Authority has already approved the said water treatment plant after being satisfied with the project. The installation of water treatment plant in this fringe area of the wetlands would not interfere with the final Management Plan at all. The said authority granted such approval after considering the pros and cons of the project.
He further submitted that the measure has already been taken for disposal of sludge emanating from the water treatment plant. The sludge is to be deposited in the sludge drying bed and upon being dried up the same would be sold in the form of solid cakes which are utilised for brick manufacturing and also for sanitary land filling. Similar system for disposal of sludge is being practiced at Palta and Garden Reach Water Treatment Plants. Selling of such sludge is also a source of revenue of KMC.
He further pointed out that the potable water conforming Central Public Health Environmental Engineering Organisation Standard will be produced under this project. This aspect has been considered by JNNURM authority and thereafter the fund has been allotted and sanctioned.
He submitted that this kind of facilities is in accordance with the principle of RAMSAR Convention and Section 10(5) of the said Act of 2006. The site proposed is on terrestrial area and there is no question of any fauna and flora within the site. The Water Treatment Plant will provide potable water to the various wards within the area of KMC covering Calcutta City as well as Calcutta wetlands area.
He further submitted that this Water Treatment Plant shall improve the local environment and would provide arsenic free water to the local inhabitants and also to a large number of residents of this part of Kolkata. The water would also be supplied to the arsenic prone area for the betterment of public health. More than 10 lakhs residents of the said area will be benefited by the said Water Treatment Plant.
He further pointed out that there will be no residence within the said water treatment area and no arrangement has been made for staff quarters within the said plant area since the work will be done only eight hours on each day. According to him, no underground water or surface water is involved in this plant, the water will come from the river Ganges through underground pipes running from Bagbazar Mayer Ghat to this Project Water Treatment Plant.
According to his further submission, no waste water will be disposed of or go outside the area of Water Treatment Plant, the waste will be recycled, if there is any residual alum in more than permissible limit that will also be detected through scada system and will be neutralised. He further added that alum and chlorine are normal ingredients for purifying water.
His further point of submission is that the steps have been taken to improve the living conditions of the residents, who are residing within the 14 wards of the KMC area and the KMC is bound to discharge its statutory obligation.
Mr. Mukherjee further submitted that the Act of 2006 is a complete code and 20 acres of land owned by KMC is not within the purview of Land Reforms Act, 1955 and according to him, the said Act does not apply within the limit of KMC. Section 4(c) of the said Act has no application in view of Section 1 of the Land Reforms Act, 1955.
According to him, this project has been undertaken only to supply free contaminated and arsenic free water to the inhabitants of the said area.
Mr. Jayanta Mitra, Learned Senior Counsel appearing on behalf of the East Kolkata Management Authority submitted that before approval of the Project, the application was filed which was discussed by the said Management Authority in the meeting and after discussion, the approval was granted. The said fact would be evident from the minutes of the meeting held by the said Authority.
According to him, the Committee was sure that no water body would be filled up by the KMC for this Project and the matter was discussed at length in the Meeting of the Committee and on number of occasions, the matter was discussed in the meeting time to time held by the said Authority and thereafter, the procedure for clearance of Project and Scheme followed all the terms which should have been followed by the Authority.
It is further submitted by him that the said Authority duly considered the EIA and EMP reports which were submitted by the KMC and in view of the said EIA and EMP reports comments were made with regard to the said Project by the said authority. Accordingly, the said proposal of KMC for construction of 30 MGD water treatment plant adjacent to Dhapa dumping ground, Mouza Bonchtala was approved subject to the following conditions:
1. Construction should be done in most eco friendly manner.
Construction material should be carefully chosen so that they do not cause any environmental concern and blend perfectly with the surroundings.
2. Before filling up any water body an equivalent water body may be created.
3. Construction of shed should be kept minimum and that too should be restricted for the operational purpose only.
4. Chemicals and other inventory are to be stored outside EKW area.
5. The front side of E. M. Bypass and the Basanti Road is to be covered with greeneries.
6. The project may be executed under strict monitoring of EKWMA, at the designing and implementation stages."
The said Authority by their letter dated 14th February, 2007, duly informed the KMC about the said conditions.
He further submitted that all steps have been taken by the authority and the authority after considering the facts and circumstances of this case came to such conclusion. He also pointed out that the said supplementary EIA and EMP reports submitted by the KMC would show that the same has been prepared as per requirement of law and the same has been taken care of all probable situation and thereby in granting such approval, the authority proceeded with their satisfaction.
Mr. Mitra further pointed out that the authority was constituted after taking into account the authority of the West Bengal Pollution Control Board and the Chairman of the said Board is a member of the EKW Management Authority. Therefore, he submitted that the Pollution Control Board duly represented in the said authority. Therefore, whether consent is required by the Pollution Control Board is immaterial since the permission was granted by the authority.
During the pendency of this application the KMC handed over the Environment Impact Assessment Report and subsequent thereto a further supplementary Environment Impact Assessment Report was filed before the Court. Subsequent thereto, the petitioners filed an application in the said writ petition on 21st August, 2008 and submitted that the said Reports were prepared by the KMC without consulting and/or obtaining permission from the West Bengal Pollution Control Board. It is further submitted that the said Report cannot be called as an Environment Impact Assessment or the Management Plan. The said Report so filed as EIA or EMP Report before the Court suffers from lacuna. It is also pointed out before us that the East Kolkata Wetlands Management Authority (hereinafter referred to as the said EKWMA) under Section 4(f) of the said Act of 2006 is to prepare action Plans conforming to the resolutions and recommendations made from time to time under the RAMSAR Convention and to update the land use of the said EKW.
According to the petitioner, no Management Plan has yet been prepared or finalised. Accordingly, it is submitted on behalf of the petitioners that no development should be permitted within the said area.
It is further submitted that the development work is not permissible at all within the said area. The Management Plan is still in the draft stage. The draft stage is not in accordance with the RAMSAR principles. The petitioner further approached three different persons, according to the petitioners, they are well- versed in environmental matters. According to their opinion, the proposed Project is erroneously and unjustifiedly selected the said site.
It is further submitted that the said two Reports do not comply with the Guidelines of the Government of West Bengal for Environment Impact Assessment and the Project should be kept in abeyance until the Management Plan is finalised.
Further point of submission is that the Court should appoint an independent Organisation or a Government recognised Local Organisation for the purpose of examining the proposed plan for the said Water Treatment Plant, the Environment Impact Assessment and the Environment Management Plan submitted by the respondents for ascertaining whether this provides for sufficient safeguards are otherwise accepted.
On the contrary, it is submitted that all the required norms have been followed in respect of the water treatment plan proposed to be constructed at Mouza Bonchtala and all the requirements under the Rules were considered at the primary stage, and the supplementary EIA or EMP Report was only advised at the actual execution stage of the Project. The Management Authority requested the KMC to provide the said EIA or EMP Reports for the purpose of effecting the Water Treatment Plant at the said area so that the additional precaution, if any, is required by the Management Authority, could be done.
The said EIA or EMP Reports submitted by the KMC would show that the same has been prepared as per requirement of law and the same has been taken care of all probable situation including adverse impact and beneficial situation such as air, water, soil, noise, social conditions etc. It is further submitted that the said Authority gave approval to the KMC to proceed with the said Project after satisfying themselves that the said Project would not adversely affect wetlands' environment. The said EIA report is not a statutory requirement for Water Treatment Plant under the Order or Notification issued from time to time by the Ministry of Environment and Forests, Government of India. Therefore, there is no reason to direct that the said Plan should have been prepared in consultation with or with the permission of West Bengal Pollution Board or any other independent Body.
It is further pointed out that there is no question of change in land use if the said Water Treatment Plant is constructed at the said area. There is no chance of changing the eco-system or there will be any violation of the Court's order if the said proposed Project is constructed at the said area.
Hence, it is submitted that the proposed site was chosen by the KMC to have minimal impact on the wetlands environment and at the same time cater to the needs of the local populace who face adverse impact of arsenic poisoning on their health. The said site is located on the fringes of the wetlands and not located on any water body but on solid land previously used for the disposal of garbage by the KMC.
In regard to the Management Plan for the EKW, the Court held that the Director of the W.I.S.A. submitted his draft report of the Management Plan for the said EKW at the meeting of EKWMA held on 15.7.08 when all the members of the EKWMA were present including Petitioner No. 2. The EKW system and the key issues relating to the area and the resource pool available in the area were duly described before the management authority. The background hydrology of the EKW system being the allied system of Adigana, Bidyadhari, Noal, Seenti etc. was described, and the necessity for connecting these with the present EKW system to get regular freshwater discharge into the said EKW, was stressed.
It is further pointed out that after considering the importance of the said Plant, members decided to give their feed back in writing to the EKWMA. The EKWMA will summarize these inputs and will convey the same to WISEA for integration in the final version of the Management Plan.
It is further pointed out that the area of EKW are not uniform in nature of the land use and there are a number of categories of land, and not every area of the EKW contain the kind of bio-diversity as portrayed in the opinions presented by the petitioner.
The said EIA or EMP Reports have been approved by the said Management Authority and no cogent reason has been shown by the petitioners to reconsider the same. Hence, it is submitted that the Court shall permit the KMC to go ahead with the said Project.
The further point of submission is that the impact of two hazardous chemicals - chlorine and alum have been duly considered with regard to the said Project. All steps have been taken as it would be evident from the said Plan for disposal of the products which would come out of the said Water Treatment process. It is submitted that there will be a significant benefit to the local environment and also to the local population through this Water Treatment Plant.
However, it appears that the Report has been filed by the Pollution Control Board where it has been submitted that no application has yet been filed by the KMC for granting consent to establish the said Water Treatment Plant, but the Learned Senior Counsel for the KMC pointed out that the Chairman and Member-Secretary of the Board are acting as the members of the Management Authority and they duly signed the permission granted by the said management authority. Therefore, that cannot be a ground to reject the project.
Further, it has been stated on behalf of the KMC that the part of Kolkata City and its surroundings, wetland area are now subjected to threat of serious contamination of arsenic in the ground water. It is imperative that the ground water dependence is replaced and substituted by treated surface water supply for which the 30 MGD water treatment project of Dhapa came into consideration.
It appears that the Project requires 20 acres of land of regular shape and size. Mouza Bonchtala is the only place where the KMC could locate 20 acres of structure free land of its own with regular shape and size. In no other place, KMC does have encumbrances free, bulk 20 acres of land in this way. Therefore, the said fact also to be considered when the said land is easily available to KMC without any hassle and for the development purpose.
The essence of the Project is that surface water will come from the river Hooghly by sub surface pipelines to the proposed project site at Bonchtala where the untreated raw surface water will be treated for distribution in the EKW area and other areas within the KMC area. It is submitted that after considering all the aspects of the matter, the Project was approved by the EKWMA.
It is also pointed out that a resolution was taken in the Meeting of the EKWMA and it would be evident that excepting petitioner No. 2 everybody agreed and duly accepted the decision taken in the said Meeting. The conditions and instructions as recorded in the said resolution has also been accepted by the KMC in order to go ahead to implement the Project without any further delay. The said Authority has already approved the Project to be implemented, since, there is no infirmity and illegality in the decision making process, the implementation of the Project should not be stopped on a flimsy ground.
In these circumstances, it is submitted that the whole object and purpose of the petitioners are to cause delay to the said Project of public interest on trifling causes and reasons. Furthermore, the said Project is dependent on the finance which has been sanctioned under the JNNURM. The total Project cost has already been approved by the JNNURM under the Ministry of Urban Development, Government of India. Therefore, at this stage, for the interest of public of the said area at the behest of the petitioner, carrying on of the Project should not be stopped.
We have heard the Learned Senior Counsel for the parties at a length. The following decisions were cited at the Bar:
In the decision reported in (1997) 3 SCC 715 (M. C. Mehta vs. Union of India) the Hon'ble Supreme Court held in Paragraph 10 of the said judgment that in the decision reported in (1987) 4 SCC 463 [M. C. Mehta vs. Union of India] the Court held as follows:
"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem."
The "Precautionary Principle" has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes."
In the decision reported in (2001) 2 SCC 62 (A.P. Pollution Control Board II vs. M.V. Nayudu) the Hon'ble Supreme Court held in the paragraph 44 of the said judgment as follows:
"coming to the provisions of the Water Act, 1974, it is clear that in view of Sub-sections 2(e), 2(k) read with Sections 17 and 18 of the Water Act, the fundamental objective of the statute is to provide clean drinking water to the citizens. Having laid down the policy prohibiting location of any industries within 10 km under GO No. 111 dated 8.3.1996, the State Could not have granted exemption to the 7th respondent Industry, nor to any other industry, from any part of the main GO No. 111 dated 8.3.1996. Section 19 permitted the State to restrict the application of the Water Act, 1974 to a particular area, if need be, but it did not enable the State to grant exemption to a particular industry within the area prohibited for location of polluting industries. Exercise of such a power in favour of a particular industry must be treated as arbitrary and contrary to public interest and in violation of the right to clean water under Article 21 of the Constitution of India."
It appears to us that the object of the said Act of 2006 deemed to have came into force on 16th November, 2005 to provide for conservation and management of EKW and for matters connected therewith and incidental thereto. The said Act has been enacted as regulator of water regime, source for underground water recharging, mechanism for waste water treatment, air quality purifier and store of water for fire-fighting and have great ecological significance for human life.
It is also evident from the said Act that the EKW have a very important role to play ecologically and socio-economically. The said Act is further for conservation and management of the EKW and for matters connected therewith and incidental thereto.
Under the said Act the EKW Authority was constituted under Section 3 of the said Act. Under Section 3 of Sub-section 3 of the said Act, the Authority shall have a body corporate with the name specified in sub-section (1) of Section 3 of the said Act having perpetual succession and a common seal with power to acquire, hold and dispose of property and to contract and may, by the aforesaid name, sue or be sued. Therefore, under Sub-section 3 of Section 3 of the said Act, the Authority has been empowered to acquire, hold and further to dispose of the property.
The functions and powers of EKW Authority is specifically stated in Section 4 of the said Act which is reproduced hereunder:
"Section 4 :-
a) to demarcate the boundaries of the East Kolkata Wetlands on the field as shown in the map in Schedule II;
b) to take measures or make an order to stop, undo and prevent any unauthorized development project in, or unauthorised use of, or unauthorised act on, the East Kolkata Wetlands;
c) to make an order directing demolition or alteration of any hoarding, frame, post, kiosk, structure, neon-signed or sky-sign, erected or exhibited illegally for the purpose of advertisement on any land within the East Kolkata Wetlands;
d) to make an order to prevent, prohibit or restrict any mining, quarrying, blasting, or other operation of like nature, for the purpose of protecting or conserving the East Kolkata Wetlands;
e) to take measures to abate pollution in the East Kolkata Wetlands and conserve the flora, fauna and biodiversity in general;
f) to prepare action plans conforming to the resolutions taken and recommendations made, from time to time, under the Ramsar Convention and to update the land use maps of the East Kolkata Wetlands;
g) to implement and monitor the activities specified in the action plans;
h) to promote research and disseminate findings of such research among the stakeholders;
i) to raise awareness about the utility of the wetlands in general and the East Kolkata Wetlands in particular;
j) to promote basic conservation principles like sewage fed pisciculture and eco-tourism in the East Kolkata Wetlands;
k) to enforce land use control in the substantially water body oriented areas and other areas in the East Kolkata Wetlands;
l) to detect changes of ecological character and in land use in the East Kolkata Wetlands;
m) to establish network with other Ramsar Sites in India;
n) to conduct inquiry or scientific study for any purpose of this Act;
o) to constitute expert committee for any purpose of this Act;
p) to enter any land or premises, including to collect samples of air, water, soil and other biological resources, for any purpose of this Act;
q) to call for relevant records and documents and information from any Department, organisation or local body for any purpose of this Act;
r) to do such act, or pass such order, which may be necessary and expedient for the purpose of conservation and management of the East Kolkata Wetlands.
(2) The Authority shall, before making an order under Clause (b) or Clause
(c) or Clause (d) of Sub-section 1, give the person affected thereby a reasonable opportunity of being heard."
Section 9 of the said Act deals with Maintenance and preservation of land in East Kolkata Wetlands which is reproduced hereunder:
"Section 9 - Notwithstanding anything contained in any law for the time being in force, every person holding any land in the East Kolkata Wetlands shall maintain and preserve such land in a manner that its area is not diminished, or its character is not changed, or it is not converted for any purpose other than the purpose for which it was settled or previously held, except with the previous sanction of the Authority under Section 10."
After perusing the said Act and the said Sections, it appears that the said Authority has a right to grant permission for change of character or mode of use of land in question and such permission to be granted after examining the case and after receiving the order from the Collector and the Authority has a right for granting sanction for change of character or mode of use of the land in question in accordance with the procedure for granting of such sanction.
It appears to us that the said water treatment plant as proposed to be constructed at the said extreme end of the western fringe of the wetlands area and is abutting a major road, Eastern Metropolitan Bypass.
It further appears to us that as it has been submitted by Mr. Shaktinath Mukherjee, the Learned Senior Advocate who drew our attention to Table three of the said Mouza Bonchtala and submitted that the Water Treatment Plant would not be on water body or even on water body oriented area, the location will be on the solid land which was previously used by the KMC as a garbage dumping site.
It further appears that the installation of Water Treatment Plant on the productive farming area will not interfere with the final management plan and that the project of Water Treatment Plant has been undertaken and is to be funded by the Government of India, Government of West Bengal and the rest by the KMC under a project sanctioned under JNNURM by the Government of India. It further appears that the said sanction contain strict time limit and if the project is not completed within the time limit, the amount so granted for, to be refunded.
It further appears to us that if the said Water Treatment Plant is allowed to be functioned/constructed at the said area a large section of population within the eastern part of Kolkata as well as at EKW areas would be benefitted. It is admitted that at the said area the people are suffering by using the contaminated water with arsenic causing health hazards to the people residing at the said area at large. It further appears to us if this Project is allowed to be constructed this would certainly be a help to the residents of the said area and that would help also KMC to cater arsenic free water to the said large area. The standard of the potable Water would conform the standard of the Central Public Health Environment Engineering Organisation Standard. Such supply would remove health hazards and would enable the large population at the said area to have the arsenic free potable water at the said area which would be also taken into account for the purpose of sanctioning the project by JNNURM.
Mr. Mukherjee also dealt with the disposal of the large emanating from the said water treatment plant and we are satisfied with the submissions made by him and the system for disposal of such sludge as already been practiced at Palta and Garden Reach Water Treatment Plants respectively by the KMC. Therefore, we do not have hesitation to accept his contention. The proposal of KMC for construction of the said plant as it appears was approved after discussion with certain conditions which have been imposed by the said Authority.
In our opinion, the point which has been urged before us that the permission which was granted by the said Authority to the KMC without considering the fact that KMC did not obtain a permission from the West Bengal Pollution Control Board has no merit since the Chairman and the Member- Secretary of the Pollution Control Board are party to the permission granted by the EKWMA.
The EIA Report is not a statutory requirement for water treatment plant project under the Order and Notification issued by the Ministry of Environment and Forest, Government of India, from time to time. Therefore, in our opinion, it is not necessary that the plant should be prepared in consultation with or with the permission of West Bengal Pollution Control Board or any other independent body.
Hence, in our considered opinion, the EKW Act of 2006 has been constituted the Management Authority and the said Authority has been constituted in accordance with the said Act. After proper deliberations the said authority has granted the permission to the KMC that too with certain conditions. We have also perused the said conditions and in our considered opinion, if the said conditions are strictly imposed, the basic features of the Act can not be jeopardized.
Therefore, in our considered opinion, the functions and powers of the Management Authority has been specifically stated in the said Act that when the Water Treatment Plant is to be constructed at the said area that should be under the control of the said Authority and in our opinion, the said Authority has enough power to control the environment situation at the said area.
In the decision reported in AIR 2006 SC 2893 (Mrs. Susetha vs. State of Tamil Nadu) the Hon'ble Supreme Court held that the Courts have not laid down a law that alienation of the property held as a public trust is necessarily prohibited. What was emphasized was a higher degree of judicial scrutiny. The doctrine of sustainable development although is not an empty slogan. It is required to be implemented taking a pragmatic view and not on ipse dixit of the Court.
The Court further held in paragraph 21 of the said judgment that relying on the decision reported in (2006) 3 SCC 434 [Bombay Dyeing & Mfg. Co. Ltd. Vs. Bombay Environmental Action Group] that referring to a large number of decisions, it was stated that whereas need to protect the environment is a priority. It is also necessary to promote development stating:
"... the harmonization of the two needs has led to the concept of sustainable development, so much so that it has become the most significant and focal point of environmental legislation and judicial decisions relating to the same. Sustainable development, simply put, is a process in which development can be sustained over generations. Brundtland Report defines 'sustainable development' as development that meets the needs of the present generations without compromising the ability of the future generations to meet their own needs. Making the concept of sustainable development operational for public policies raises important challenges that involve complex synergies and trade offs."
The Court further held in paragraph 22 of the said judgment as follows:
"Treating the principle of sustainable development as a fundamental concept of Indian Law, it was opined that the development of the doctrine of sustainable development indeed is a welcome feature but while emphasizing the need of ecological impact, a delicate balance between it and the necessity for development must be struck. Whereas it is not possible to ignore intergenerational interest, it is also not possible to ignore the dire need which the society urgently requires."
In the decision reported in (2000) 10 SCC 664 [Narmada Bachao Andolan vs. Union of India] the Hon'ble Supreme Court in paragraphs 123 and 124 respectively of the said judgment held as follows:
"123 - It appears to us that the precautionary principle and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or other project or industry where the extent of damage likely to be inflicted is not known. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand, where the effect on ecology or environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be an ecological disaster. It is when the effect of the project is known that the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.
124 - In the present case we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry. The construction of a dam undoubtedly would result in the change of environment but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in an ecological disaster. India has an experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost-effective or leads to ecological or environmental degradation. On the contrary, there has been ecological upgradation with the construction of large dams. What is the impact on environment with the construction of a dam is well known in India and, therefore, the decision of A.P. Pollution Control Board has not application in the present case."
The legal position relating to exercise of jurisdiction by the courts for preventing environmental degradation and thereby, seeking to protect fundamental rights of the citizens, is now well settled. The primary efforts of the court while dealing with environmental related issues, is to ensure that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The court act as the guardian of the people's fundamental rights. (see Indian Council for Enviro-legal Action vs. Union of India (1996) 3 Supreme 741).
Furthermore, the courts have repeatedly felt that the needs of environment require to be balanced with the needs of the community at large and the needs of a developing country. The development of industry is essential for the economy of the country, but at the same time, the environment and the ecosystems have to be protected. It has been held that it was necessary to strike balance between the necessity to preserve the environment on the one hand and the pressing need for the industrialization of a backward state. (see Rajiv Ranjan Singh vs. State of Bihar in AIR 1992 Pat 86). It was neither feasible nor practicable to have a negative approach to the development process of the country or of the society, since in a developing economy technological advancement ought not to be decried at all, though, however, the same does not mean without any consideration for the environment. There must be a proper balance between development and environment so that both can co-exist without affecting the other. The society must prosper but not at the cost of the environment and in the similar vein the environment must be protected but not at the cost of the development and proper environment and administrative actions ought to proceed in accordance therewith. It is necessary to recognize the danger in order to strike a balance between the quality of life to be preserved and the economic development to be encouraged. (see Cheetri Pradushan Mukti Sangarsh Samity vs. State of Uttar Pradesh in AIR 1990 SC 2060). However, the pollution created because of development must commensurate with the carrying capacity of our ecosystems. (see M. C. Mehta (supra). The Courts have explained further by saying that the needle of the balance is the right to life and personal liberty enshrined in Article 21 of the constitution. The right to life comprehends, inter alia, right to environment, right to health care and the right to adequate heath delivery system. However, the court will attempt to balance relevant consideration. (see Sachchidanad Pandey vs. State of West Bengal in AIR 1987 SC 1109).
It is further held that one of the principles underlying environmental law is that of sustainable development. Sustainable development is defined as development that meets the need of the present generation without compromising the ability of the future generation to meet their needs and this principle requires such development to take place, which is ecologically sustainable. The two essential features of sustainable development are the precautionary principle and the polluter pays principle. (see M. C. Mehta vs. Union of India (2002) 3 SCJ 11). These principles are part of environmental laws of India.
It is further held that mere violation of the law in not observing the norms would result in degradation of environment would not be correct. (see Deepak Nitrite Ltd. Vs. State of Gujarat (2004) 6 SCC 402). The basic question was whether any construction should be allowed to be raised in and around a lake in a city.
It is true that in respect of the public projects and policies which are initiated by the Government, the Court would not become an approval Committee. If a considered policy decision has been taken which is not in conflict with any law or is not mala fide and further it is not in the interest of the public at large, in those cases the function of the Court is not to sit in appeal over such a policy decision.
In the case of Narmada Bachao Andolan (supra), it has been held by the Court that for any project which is approved after due deliberation, the Court must refrain from being asked to review the decision just because a petitioner files a public interest litigation alleging that such a decision must not have been taken because an opposite view against the undertaking of the Project, which view may have been considered by the Government, is possible.
After considering the pros and cons of the said Project and the points urged before us, we hold that the said Project, if implemented, can save a part of the Kolkata city and its surroundings and also the local population from the serious threat of contamination of arsenic in the ground water, and the dependence on the ground water would be replaced and substituted by the treated surface water supply for which the Project has been undertaken.
In these circumstances, we are not in a position to stop the construction of the said plant for the interest of public at large of the said area and accordingly, we direct the said Authority to proceed with the construction of 30 MGD water treatment plant adjacent to Dhapa dumping ground in accordance with the conditions laid down by the Management Authority in their letter dated 14th February, 2007. But we make it clear that without obtaining permission from the competent authority no water body should be filled up by the KMC.
We further direct the Management Authority to keep a close watch on this Project so that there cannot be any violation of any provisions of the said Act in any manner whatsoever. The said authority is further directed to monitor the work of the said Project and to submit monthly reports month by month until the completion of the Project.
Although we have directed the Management Authority to keep a close watch over the work of the Project, we think it would be proper for us to appoint an independent Monitoring Committee who will monitor the work of the said Project until it becomes operative. The said Monitoring Committee also has to file by-monthly reports from time to time before this Court.
However, we like to monitor the following issues for controlling and maintaining the ecological balance at the said area by setting up the said Committee who shall monitor the construction of the said Project at the said area.
Mr. Sabyasachi Sengupta, Vice-Chancellor, West Bengal University of Technology, Dr. N. R. Banerjee, Vice- Chancellor, Bengal Engineering & Science University and Dr. Joydeep Mukherjee, Head of the Department, Environment, Jadavpur University are hereby appointed as the Members of the said Monitoring Committee who will monitor the work of the said Project. The Monitoring Committee would monitor the Project and would see that the following conditions are followed in carrying out the said Project;
a) the construction should be done in most eco-friendly manner and further the materials should be used for such purpose should not cause any environmental hazards in the said locale and
b) no general permission can be granted for filling up any waterbody; however if it is absolutely necessary for the proper function of the Water Treatment Plant to fill up any waterbody, the same shall not be undertaken without express permission of the Monitoring Committee and any other competent authority. In case such permission is granted, it shall be obligatory for the KMC to create an equivalent water body. The front side of the E. M. By-pass and Basanti Road should be covered with greeneries, and the Project should be under strict monitoring of the Management Authority at each and every stages.
The Monitoring Committee shall continue to monitor the said Project until it is in operation. The by-monthly report should be filed by this Monitoring Committee in respect of the said Project before this Court from time to time. All costs, charges and expenses of the said Monitoring Committee should be borne by the KMC.
For the reasons stated hereinabove, the applications are disposed of. I agree.
(SURINDER SINGH NIJJAR, C. J.) (PINAKI CHANDRA GHOSE, J.)