National Green Tribunal
Swarup Kumar Rath vs Union Of India Ministry Of Environment ... on 28 September, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 20/2021/EZ
(I.A. No. 17/2021/EZ)
IN THE MATTER OF:
1. Swarup Kumar Rath,
Aged about 38 years,
Son of Bibhuti Bhusan Rath,
At P.O.- Bodhapur, P.S. - Kissannagar,
Dist.: Cuttack, Odisha
2. Sudhir Ranjan Acharya,
Aged about 50 years,
Son of Bichitrananda Acharya,
At Ishani Berhampur, P.O. - Khentalo,
P.S. - Kishannagar, Dist.: Cuttack, Odisha
3. Hrushikesh Jena,
Aged about 62 years,
Son of Banshidhar Jena,
Vill.: Bramhanbada, Damodarpur,
P.O. - Kandarpur, Dist.: Cuttack, Odisha
4. Lily Sahoo
Aged about 49 years,
W/o Laxmi Narayan Sahoo,
Vill/P.O. - Sirlo, P.S. - Kishannagar,
Dist.: Cuttack, Odisha
5. Abhimanyu Behera,
Aged about 61 years,
S/o Kumar Behera,
Vill./P.O.- Bodhapur, P.S. - Kishannagar,
Dist.: Cuttack, Odisha,
6. Bhaskar Chandra Senapati,
Aged about 65 years,
S/o Satyabadi Senapati,
1
Vill.- Nanpur, P.O. - Gadama,
P.S. - Kishannagar, Dist.: Cuttack, Odisha,
7. Syed Sajid Ali,
Aged about 48 years,
S/o Syed AbdurRazaque,
At P.O. - Praharajpur, P.S. - Kishannagar,
Dist.: Cuttack, Odisha
....Applicant(s)
Versus
1. Union of India,
Represented through its Secretary
Of Environment, Forest and Climate Change,
Jorbagh, Aliganj, New Delhi,
Pin - 110003,
2. State of Odisha,
Represented through its Chief Secretary,
At Lok-Sebha Bhawan, Bhubaneswar,
Dist.: Khurda, Odisha,
3. Secretary to Government,
Water Resources Department,
At Lok-Sebha Bhawan, Bhubaneswar,
Dist.: Khurda, Odisha,
4. The Secretary to Government,
Revenue and Disaster Management Department,
At Lok-Sebha Bhawan, Bhubaneswar,
Dist.: Khurda,
5. Engineer-in-Chief,
Water Resources Department,
At Heads of Department Building,
Bhubaneswar, Dist.: Khurda, Odisha
6. Chief Engineer Drainage Division, Gandarpur,
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Dist.: Cuttack, Odisha,
7. Executive Engineer Drainage Division, Gandarpur,
Dist.: Cuttack, Odisha,
8. The Collector, Cuttack,
At Collectorate Building,
P.O./Dist.: Cuttack, Odisha
9. Tahasildar, Kishore Nagar Tahasil,
At P.O.-Kishore Nagar,
Dist.: Cuttack,
10. Tahasildar, Cuttack Sadar,
At Chandni Chouk, Cuttack, Odisha,
11. State Pollution Control Board,
Represented through its Member Secretary,
Paribesh Bhawan, A-118, Nilakantha Nagar, Unit-8,
Bhubaneswar - 751 012, Dist.: Khurda, Odisha,
12. State Environment Impact Assessment Authority,
Represented through its Chairman,
At SRF-2/1, Acharya Vihar, Unit IX, OPTCL Colony,
Bhubaneswar - 751 022,
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Sisir Das, Sr. Advocate a/w Mr. Prabhu Prasanna Behera,
Advocate,
COUNSEL FOR RESPONDENTS :
Mr. Shakti Panda, AGA for R-2 to 7 & 10,
Mr. Janmejaya Katikia, AGA for R-8 & 9,
Mr. Dipanjan Ghosh, Advocate for R-11,
Mr. Gora Chand Roy Choudhury, Advocate for R-12,
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JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- September 23rd, 2022 Pronounce On:- September 28th, 2022 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes __________________________________________________________________ JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. The allegation in this Original Application is that the Respondents have closed the mouth of river Sukapaika (a branch of river Mahanadi) obstructing the free flow of perennial water source of river Sukapaika by creation of a dry island by way of encroachment of the river bed by land grabbers. It is also alleged that sand is being collected illegally by the encroachers and the entire bed has also become a dumping ground for garbage and solid and liquid waste, thereby polluting the entire area.
3. The submission of the learned Counsel for the Applicant is that in this regard the matter had been raised with the Government and a report had also been submitted by the Chief Engineer, Government of Odisha, Department of Water Resources (Project 4 proposal on Rejuvenation of Sukapaika Drainage Channel Annexure-5) giving certain recommendations. It is alleged that in spite of the recommendations/report of the Chief Engineer, no action has been taken by the Respondents till date.
4. Notices were issued to the Respondents and responses have been filed.
5. The Chief Engineer, Drainage, Gandarpur, Cuttack, in his affidavit dated 03.08.2021 has stated that the Sukapaika River is a dead river originating from Mahanadi River, having its mouth at Village-Ayatpur at RD 12.50 kilometers. It traverses a length of 27.50 kilometers and then falls at Bankala in the same Mahanadi River at RD 27.50 kilometers in the Mahanadi right embankment. It covers three Blocks, namely, Cuttack Sadar, Raghunathpur and Nichintakoili of Cuttack District, Odisha.
6. It is also stated that the mouth of the river was closed during the year 1950 for development of Taladanda Canal System and for flood protection in the delta of Sukapaika. It is also stated that people have started residing in the nearby areas and encroaching upon the river at many places thereby obstructing storage and free passage of water to its tail end. It is stated that a decision was taken to close the mouth of river Sukapaika as it would not create any water crisis because the area is covered with many water bodies and tanks having sufficient ground water reserve. It is, however, stated that a Joint Inspection comprising of officials from the Water Resources and Revenue Department was made on 5 18.01.2020 and a public hearing was also held at Kishannagar Tahasil Office and it was decided to take up the matter as a Project. The Project Report has been approved by the 133rd State Technical Advisory Committee of Flood Control Board for Rs. 44.04 crores. The opinion of the people was also taken and a decision was taken to re-open the mouth of Sukapaika River near Village-Ayatpur on Mahanadi right embankment and the Revenue Authorities as well as the Authorities in the Department of Water Resources are also quite active for the said Project and the Detailed Project Report of the said Project has been approved by the 133rd State Technical Advisory Committee in its meeting held on 29.04.2021. It is stated that the detailed survey of the area is under process and following instructions have been given by the Collector & District Magistrate, Cuttack, on 02.07.2021 which are as under:-
1. River bed to be free from encroachment. (Action-
Tahasildar Cuttack Sadar & Kishannagar).
2. Small ponds are to be created for the management of water course.
3. Detailed Project Report to be submitted and a synopsis of the DPR to be made in 'Odia' language to aware public about the work to be under taken for the Rejuvenation of the dead river "Sukapaika". An organization to be given the responsibility for the said purpose. (Action- Superintending Engineer, Drainage Circle, Cuttack/Executive Engineer, Drainage Division, Cuttack/Superintending Engineer, Eastern Circle, Cuttack/Executive engineer, Mahanadi South Division, Cuttack).
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4. Possible impact to be highlighted on DPR by making the Social assessment where human cost to be taken care of.
5. Socio-Economic survey to be conducted and benefits must be highlighted in the DPR.
6. As in the Project, affected people will be displaced, they would be rehabilitated and an agency to be involved to make the cost benefit analysis.
7. Eco-tourism spot to be identified and to be developed for promotion of tourism. (Action-Superintending engineer, Drainage circle, Cuttack & Asst. Director of Tourist, Cuttack).
8. As the project would change 50 years history of an area; the following components should be integral part of the project.
∗ Compensation (RR package) ∗ Project evaluation ∗ Cost benefit analysis ∗ Project documentation ∗ Inter-department co-ordination ∗ Checking of water level during lean & non-lean season. Steps are being taken to carry out the instructions of the Collector & District Magistrate, Cuttack regarding Sukapaika Channel."
7. The Collector & District Magistrate, Cuttack, in his affidavit dated 05.08.2021 has stated that since the mouth of the river was closed, the local people started using the dead river area and its bed for cultivation purpose but there was no pucca construction either over the dead river or over the river bed. It is also stated that the mouth of the river was closed as far back as 1951. 7
8. The Ministry of Environment, Forests and Climate Change ('MoEF&CC' for short), Respondent No.1, in its affidavit dated 23.09.2021 has only stated that the Government of India has allocated the business relating to conservation, development, management and abatement of pollution of rivers to the Department of Water Resources, River Development and Ganga Rejuvenation under Ministry of Jal Shakti.
9. The Chief Engineer, Drainage, Cuttack, has filed a further affidavit dated 10.03.2022, stating therein that after approval of the Detailed Project Report for Rejuvenation of Sukapaika Drainage Channel in the 133rd meeting of the State Technical Advisory Committee held on 29.04.2021, following recommendations have been made:-
"1) Construction of one sluice on Mahanadi Right Embankment.
2) Construction of Cross Drainage work over distributary No.1 of river Taladanda Canal.
3) Construction of 4 nos. of Village Road Bridge.
4) Renovation of entire Drainage Channel.
5) Land Acquisition"
10. It is also stated that regarding encroachment, there is no permanent construction within 60 meters of the corridor/passage way as it has been proposed for renovation of the Drainage Channel. It is also stated that the natural flow from Mahanadi River to the Drainage Channel had been stopped long back but to revive the Sukapaika Drainage Channel one sluice kept at river embankment near Ayatpur and one drainage sluice below the Ditsy 8 No.1 of Talandanda canal for intake of water from the Mahanadi River and rejuvenation of the Drainage Channel has been approved to develop the water table/ground water level of the locality and after completion of the Project, the storage water in this Drainage Channel will be used for drinking purpose and for supply to the rural people.
11. It is also stated that the State Government has approved an amount of Rs. 49.67 crores for rejuvenation of Sukapaika Drainage Channel which will be submitted to the Government for budgetary provisions for the year 2022-23.
12. The State Environment Impact Assessment Authority (SEIAA), Odisha, Respondent No.13, in its affidavit dated 17.05.2022 has stated that an affidavit was filed by the SEIAA, Odisha, before the Human Rights Commission, Odisha, in OHRC No. 2147 of 2020, stating therein that the SEIAA, Odisha, has neither granted any Environmental Clearance nor the Project Proponent has submitted any application form for lifting of sand and brick earth from Sukapaika riverbed and the order of the Human Rights Commission has been forwarded to the Collector & District Magistrate, Cuttack, vide its letter dated 14.10.2020.
13. The Applicant has filed rejoinder affidavit dated 15.01.2022 stating therein that the local people are adopting large scale aquaculture in the river bed but it is not known whether any lease has been granted for the same in their favour by the Government 9 Authorities and the River Sukapaika has dried and become dead creating huge scarcity of drinking water in the area.
14. Another rejoinder affidavit dated 23.04.2022 has been filed by the Applicant, stating therein that the mouth of the Sukapaika River was closed during the construction of Right Flood Embankment of Mahanadi River which has caused the river to be silted up and has almost died now. It is also stated that the Government has not given any administrative approval to the Project for rejuvenation of the Sukapaika River and financial sanction has also not been accorded so far. It is also stated that there are encroachments on the river bed which need to be removed since encroachments in the river bed cannot be legalized in the name of encroacher.
15. Additional affidavit dated 21.09.2022 has also been filed by the Appellant wherein it is stated that the budgetary sanction for an amount of Rs. 49.67 crores for Project Rejuvenation of Sukapaika River Drainage Channel has not yet been submitted to the Government for budgetary allocation for the year 2022-23 and, therefore, the claim of the State Respondents is only an eyewash.
16. The Chief Engineer, Drainage, Gandarpur, Cuttack, in his affidavit dated 26.08.2022 has, however, placed on record the proceedings of the Technical Committee held on 06.06.2022 wherein it has been stated that the rejuvenation proposal has been approved for an estimated cost of Rs. 4967.13 lakhs i.e., Rs. 49.6713 vtptrd in 136th Technical Advisory Committee of State 10 Flood Control Board held on 14.12.2021.The relevant extract of the proceeding reads as under:-
"PROCEEDING OF THE TECHNICAL COMMITTEE MEETING HELD ON 06.06.2022 AT 4:30 PM REGARDING REJUNVEATION OF SUKAPAIKA DRAINAGE CHANNEL ************************************************************ The rejuvenation proposal has been approved for an estimated cost of Rs.4967.13 Lakhs in 136th TAC of State Flood Control Board held on 14.12.2021 with the following scope of work including land acquisition:-
i. Construction of a Sluice on the right capital embankment at RD 12.00Km of River Mahanadi near village Ayatpur i.e., originating point of Sukapaika Drainage Channel.
ii. Construction of a Syphon on existing road from
Ayatpur to Kandarpur at RD 1.08 Km of
Distributary No.01 of Taladanda System.
iii. Renovation of Sukapaika Drainage Channel for a length of 30.850 Km from the originating point at Ayatpur to the outfalling point at Bankal Sluice with a bed width of 20 metre.
iv. Construction of 04 nos. of VRBs The discussion was held regarding construction of Sluice and Syphon which are the key factor for the success of this rejuvenation proposal. It was intimated to the committee that the site was visited by Director, Canal along with Director, Flood Control & Coastal protection and Additional Director, Flood Control under Chief engineer, Designs on 12.05.2022. As per the suggestion of the Design team and the feasibility study report intimated by Chief Engineer, Planning with the desired Bed Level of 13.50m at proposed sluice at Ayatpur the approximate minimum discharge in 11 Mahanadi at that point should be 1,14,240 Cusec which will allow flow into Sukapaika.
The Chief Engineer, Drainage suggested that the flow for around one month in monsoon season with design crest level of the sluice at 13.00 m and a Design Discharge of 11.00 Cumecs will solve the purpose looking to the Design Discharge of Bankala Sluice with is 58.52 Cumecs.
Chief Engineer, Designs raised apprehension for success of the rejuvenation proposal due to the expected flow for a less duration in the year. He suggested to lower the crest level to 1.0m to 1.50m above the river bed level for allowing flow in the channel for a longer duration, if feasible.
After debate and discussion among all the members, it was directed by the Engineer-in-Chief, Planning & Design that the sluice is to be designed with the crest level of RL 13.00m which will resolve the purpose of rejuvenation for the larger interest of the villagers of Cuttack Sadar, Kishannagar and Nischintakoili Block of Cuttack District.
In the meeting, the CE Drainage was asked to furnish the levels of the existing structures for fixation of the proposed sluice level. The same was furnished to the EIC, WR under intimation to all concerned vide CE's Letter No. 2978(WE)/ dt. 23.06.2022. Basing on the said letter, the CE Planning vide his Letter No.1184/dt 13.07.2022 recommends to fix the level at RL 13.0M.
The observations at Gauge site on River Mahanadi at Kisan Nagar from the year 2017 and 2021 shows that the flood water level at the site is above 13.00m for 13 to 44 days in a year in the monsoon period. As the proposed sluice site at Ayatpur is situated at 9.00 Km up stream of the gauge site, the 12 corresponding flood water level at the intake sluice point will be about 14.50 m to 15.0 m during this period. This will facilitate entry of Mahanadi flood water to Suka Paika DC for more no's of days in a year then those observed at Kisan Nagar. This will be helpful for rejuvenation of the dead channel to a greater extent.
Besides rejuvenation, water can also be stored in the channel at the already constructed check dam site and more such structures can be constructed in future for storage of water in the channel at suitable locations which can be utilized for pisciculture, drinking water, ground water recharge and other purposes.
As such, it is approved to take up the design with crest level of the sluice at RL 13.0 m."
17. It is also stated that the site was visited by the Director, Canal along with Director, Flood Control & Coastal Protection and Additional Director, Flood Control under Chief Engineer, Designs, on 12.05.2022 and it has been proposed that the desired bed level of 13.50m at proposed sluice at Ayatpur and approximate minimum discharge in Mahanadi at that point should be 1,14,240 Cusec which will allow flow into Sukapaika River. It is also stated that the flow for around one month in monsoon season with design crest level of the sluice at 13.00m and a design discharge of 11.00 Cumecs will solve the purpose of Bankala Sluice which is 58.52 Cumecs.
18. It is also stated that the Chief Engineer, Design, suggested to lower the crest level to 1.0m to 1.50m above the river bed for allowing flow in the channel for a longer duration. Finally it was 13 directed by the Engineer-in-Chief, Planning & Design, that the sluice be designed with the crest level of RL 13.00m which will resolve the purpose of rejuvenation for the larger interest of the villagers of Cuttack Sadar, Kishannagar and Nischintakoili Block of Cuttack District.
19. The Committee also noted that the observations at gauge site on Mahanadi River at Kisan Nagar from the year 2017 and 2021 show that the flood water level at the site is above 13.00m for 13 days to 44 days in a year in the monsoon period. As the proposed sluice site at Ayatpur is situated at 9 kilometters upstream of the gauge site, the corresponding flood water level at the intake sluice point will be about 14.50m to 15.0m during this period. This will facilitate entry of Mahanadi flood water to Sukapaika Drainage Channel for more number of days in a year than those observed at Kisannagar. This will be helpful for rejuvenation of the dead channel to a great extent. The proposal was finally approved to take the design with crest level of the sluice at RL 13.0m.
20. From the facts stated and brought on record by the Respondents, it is found that for purposes of rejuvenation of the Sukapaika River, a Sukapaika Project Report for rejuvenation of Sukapaika Drainage Channel has been formed which has been approved for a budgetary requirement of Rs. 4967.13 lakhs i.e., Rs. 49.6713 crores on 14.12.2021 and the said proposal needs to be executed in all seriousness and alacrity by the State Respondents in order to ensure rejuvenation of the Sukapaika River to ameliorate 14 the drinking water crisis of the residents of the area as well as rejuvenation of ground water and other water bodies in the area. No timeline has been mentioned in the affidavits filed by the Chief Engineer, Drainage, Gandarpur, Cuttack, since the proposals were finalized on 14.12.2021 and were supposed to have been placed for budgetary allocation in the financial year 2022-23. The affidavits do not clarify as to whether the budgetary allocation has been granted by the State, however, more than nine months have passed since the rejuvenation of Sukapaika Drainage Channel Project was approved and financial requirements determined.
21. We are in agreement with the anxiety of Mr. Sisir Das, learned Senior Counsel appearing for the Applicants, that the Sukapaika river has been dead for several decades causing grave hardship to the local people who are dependent on the river for drinking water as well as for agricultural purposes and that the said river must be rejuvenated. This will also help in recharging the ground water as well as in maintaining the water level in the natural water bodies around the area.
22. We, therefore, direct the State Respondents that in case the proposed budgetary allocation of Rs. 4967.13 lakhs for rejuvenation of Sukapaika Drainage Channehas not been made by the Government, the same shall be made within a period of one month for which purpose a copy of this judgment shall be placed before the Chief Secretary, State of Odisha for appropriate orders. 15
23. We also direct the State Respondents to complete the entire Project for rejuvenation of Sukapaika River Drainage Channel by 13.03.2023 and file an affidavit of compliance in this regard.
24. With the aforesaid directions, the Original Application is disposed of.
25. The I.A. No. 17/2021/EZ is also disposed of.
26. There shall be no order as to costs.
.......................................... B. AMIT STHALEKAR , JM .....................................
SAIBAL DASGUPTA, EM Kolkata, September 28th, 2022, Original Application No.20/2021/EZ (I.A. No. 17/2021/EZ) AK 16