National Green Tribunal
Shri Hazi Arif vs State Of Uttar Pradesh on 13 May, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 16/2014
Shri Hazi Ariff Applicant
Versus
State of U.P. & Ors. Respondent(s)
Date of hearing: 13.05.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. R. Venkataraman, Advocate for Applicant
Respondent(s): Mr. Raj Kumar, Advocate for CPCB
Mr. Pradeep Misra, Advocate for UPPCB
Mr. Rachit Mittal, Advocate for GDA
Mr. Rajesh Raina, Advocate for UPSIDA
Mr. Gopal Jain, Senior Advocate with Mr. Akshat Hansaria,
Advocates for M/s Tata Steel Limited (R - 14)
Ms. Jagrati Singh, Advocate for Stonex India Pvt. Ltd. (R - 10) &
Cloud 9 Builders (R - 15)
Mr. Pawan R. Upadhyay, Advocate for M/s Country Inn & Suites
(R - 13)
ORDER
The issue:
1. The issue for consideration is legality of construction in the bed and within the buffer zone (12 meters from the edge of the drain1) of Sahibabad Drain No. 1 in Ghaziabad and prevention of pollution thereof. This involves consideration of applicable environmental norms, including the Water (Prevention and Control of Pollution) Act, 1974 (Water Act). The matter was earlier considered inter alia by orders dated 7.10.2016 and 26.2.2020. The Hon'ble Supreme Court vide order dated 22.10.2021 set aside the said 1 In terms of Functional Plan on Drainage for National Capital Region 1 orders and remanded the matter for fresh consideration, giving further opportunity to the alleged encroachers/violators. The Tribunal is to consider the matter from the stage of consideration of report dated 12.4.2014 by a Committee constituted by the Tribunal. This order is being passed, after such consideration, in continuation of order dated 16.12.2021.
Earlier order of the Tribunal dated 07.10.2016
2. The matter was earlier dealt with by this Tribunal vide order dated 07.10.2016. The Tribunal considered the factual position emerging inter alia from report dated 12.04.2014 of joint Committee (appointed by the Tribunal) comprising Ms. Parul Gupta, Advocate, Mr. N.K. Gupta, Sr. Environmental Engineer, CPCB, Mr. Parasnath, Regional Officer of UPPCB, Ghaziabad and Mr. Amit Mishra, IFS, MoEF, Regional Office, Ghaziabad, after visit to the site. It was found that the drain in question carried storm water and waste water. Large number of establishments had covered the drain in front of their respective premises or otherwise encroached it. Many of such coverings/constructions were with the permission of the Nagar Nigam which was not valid. Many establishments had encroached the land adjacent to the drain. Permanent constructions were made in green belt area. Constructions in and around the drain obstructed the flow of water. Precise finding in the said order is reproduced below:
"72. On the other hand, the applicant has produced photographs of the localities in proximity of Sahibabad drain showing massive inundation with flood water entering the premises of the local citizens. It is an admitted fact that the drain carries hazardous mixture of storm water, sewage and such other contaminants which find way to Sahibabad drain no. 1. Photographs also reveal that the constructions have been carried out in the bed of Sahibabad drain. Logically, therefore, the volume of the Sahibabad drain which promises carrying of flood waters stand reduced to that extent. Impediment to the flow of water in the said drain which falls within 2 the meaning of stream as defined under Section 2 (j) of Water Act, 1974 is therefore, obvious. As observed above the dirt filth, sewerage and the trade effluent in the drain have further compounded the problem. In absence of any study revealing the Environmental impacts of such constructions, a prudent man has necessarily to hold that such impediment to the proper flow of the water in the said drain is likely to lead to a substantial aggravation of pollution by itself or due to other causes or of its consequences such as water remaining stagnant in pools as a aftermath of the inundation giving rise to unhealthy conditions. In our view, therefore, the constructions carried out in and over the Sahibabad Drain No.1 violate the provisions of Section 24 (1)(b) of the Water Act, 1974. The issue is, therefore, answered affirmatively."
3. In the light of above finding, it was directed that no construction should be allowed in the drain without Impact Assessment Study and constructions already raised be removed. In respect of constructions, with permission granted by the Nagar Nigam, further study be carried out by an Expert Committee comprising Professor C.R. Babu, Centre for Environment Management of degraded ecosystem, Delhi, Dr. Brij Gopal, Professor JNU, Professor A.K. Gosain Professor of Civil Engineering IIT, Delhi, to ascertain whether such constructions can be allowed with or without modifications.
Order of Tribunal dated 26.02.2020
4. In pursuance of above order, report of the Committee was filed which was taken on record vide order dated 12.10.2017, recommending removal of all covers and encroachments, including those with the permission of Nagar Nigam was also recommended that the drain should be duly restored and effluents be not allowed to flow in the drain, the matter was further considered on 26.02.2020. The Tribunal directed the Nagar Nigam to take further action in the light of recommendations of the Committee. Order of Hon'ble Supreme Court dated 22.10.2021
5. The alleged encroachers/violators preferred appeals before Hon'ble Supreme Court with the plea that they did not have adequate opportunity 3 before the Tribunal, which plea has been allowed and matter remitted back to this Tribunal to be dealt with from the stage of submission of report dated 23.04.2014. The affected parties were given liberty to file objections to the report. The order of the Hon'ble Supreme Court is reproduced below:-
"The challenge in the present appeals is to an order passed by the National Green Tribunal (in short, "the NGT") on 26.02.2020. The learned NGT held that in execution proceedings, the order passed by the Tribunal on 07.10.2016 cannot be disputed.
The NGT has appointed an Expert Committee on 03.03.2014 under the Chairmanship of Ms. Parul Gupta, Advocate. The said committee submitted report on 23.4.2014. The NGT passed an order on 7.10.2016 whereby the Respondent Ghaziabad Development Authority was directed to remove all such encroachments on green belt area as per GMPD 2021 in Vaishalli Zone -5 in accordance with law. The order dated 7.10.2016 is being treated as final order though the report of Committee of Ms. Parul Gupta was accepted by NGT after giving an opportunity of hearing to the affected parties.
Another Expert Committee was ordered to be constituted comprising of Professor C.R. Babu Centre, Professor for Environment Management of degraded ecosystem, School of Environment study University of Delhi, Dr. Brij Gopal, Professor JNU, Professor A.K. Gosain Professor of Civil Engineering IIT, Delhi to carry out study of Sahibabad drain No. 1 Ghaziabad. The said Committee had given its report on 09.10.2017.
The appellant and other affected parties filed applications for impleadment in the Original Application pending before the NGT before it passed an order on 7.10.2016. Objections to the Report were also submitted. However, the NGT, in the impugned order, held that "as an executing court, the jurisdiction of the Court is limited as it cannot go behind the original order passed in respect of which execution proceedings have been initiated."
We find that the entire basis of the order of the NGT is the Report of the Expert Committee dated 23.4.2014 leading to the alleged executable order dated 7.10.2016. Such Report was never accepted on the basis of which any executable order was passed by the NGT. The argument raised that such report was taken on record does not mean acceptance of report. Still further none of the affected parties, such as the appellants were before the NGT and no order could be passed without hearing the affected parties.
Consequently, we set aside all proceedings subsequent to the submission of the Report dated 23.4.2014. The affected parties are given liberty to file objections to the report so submitted. It is 4 only thereafter, an order can be said to have been passed by the NGT, which can be said to be an executable order. Consequently, the appeals are allowed. The order passed by the NGT on 26.02.2020 is set aside. The matter is remitted back to the NGT from the stage of submission of the Report dated 23.4.2014. The NGT shall decide all questions of law and fact after hearing the affected parties in accordance with law." Order of the Tribunal dated 16.12.2021
6. The matter was then considered in the light of the order of the Hon'ble Supreme Court vide order dated 16.12.2021. Since no submissions/objections, as permitted in the order of the Hon'ble Supreme Court had been filed, further time was granted for doing so. Operative part of the order is reproduced below:-
"1to3...xxx.................................xxx..................................xxx
4. Learned Counsel for the applicant submitted that inspite of liberty given by the Hon'ble Supreme Court no objection has been filed to the reports and violations have been found, supported by tangible material. Accordingly, the report be accepted and directions issued for protection of environment under Section 15 of the NGT Act, 2010.
5. Learned Counsel for the alleged encroachers/violators seek further opportunity to file their objections.
6. In view of order of Hon'ble Supreme Court, we permit filing of any further objections/submissions/documents by 05.01.2022.
List for final hearing on 11.01.2022.
Since, the matter is to be dealt with from the stage of 23.04.2014 report, and execution application is for execution of order dated 7.10.2016, which no longer survives, O.A. be listed for consideration and final disposal. Execution application be treated as closed in the light of order of Hon'ble Supreme Court. I.A. No. 172/2021 also stands disposed of."
Objections filed by the alleged encroachers/violators - M/s. Stonex India Pvt. Ltd., M/s Tata Steel Limited and Cloud 9 Builders (Aadi Best Consortium Pvt. Ltd.)
7. In pursuance of the above, submissions/objections have been filed by the R- 10, 14 and 15 - M/s. Stonex India Pvt. Ltd., M/s Tata Steel 5 Limited (M/s Tata Steel BSL Ltd. has now amalgamated into and with Tata Steel Limited) and Cloud 9 Builders (Aadi Best Consortium Pvt. Ltd.) which are being considered hereby.
Consideration in today's hearing and final order
8. To consider the matter further, we may first refer to the earlier proceedings upto the stage of report dated 23.04.2014. OA was filed with the grievance against the encroachments and constructions, obstructing water drainage and also damaging the green belt. Prayer was to remedy and prevent pollution of the storm water drain and restoring the green belt. Averments in the application are that there is a drainage system between Sahid Nagar Colony to Khora Colony ending at Kalindhi Kunj, NCT Delhi through Ghaziabad. Illegal encroachments are next to Vaishali Metro Station. Encroachments are in the form of parking and private business establishments including marriage hall, marble units on stretch between Kaushambi and Mohan Nagar, Ghaziabad. The encroachments had disrupted the recharge of ground water, caused water depletion and diseases, affecting humans and animals. In terms of ground water, area is categorized as over exploited and critical zone. The drain starts from Loni area, Ghaziabad District and serves localities ending at Kalindhi Kunj, NCT Delhi. The obstruction causes stagnation in the entire drain canal and contaminated water enters residential premises in rainy season. The flow of the water is towards residential areas due to encroachments, illegal constructions, construction of illegal parking lots at commercial complexes affecting the water flow. The Ghaziabad Development Authority itself has destroyed the green belt beginning just next from the Vaishali Metro Station, uprooted and felled trees for parking, although the Metro Station itself has a huge parking lot within the station complex itself. The encroachments by commercial vested interests both on green belt and on 6 the drain in the entire stretch from Anandvihar-Kaushambi Metro via Dabur-Vaishali Metro up to the stretch of Mohan Nagar on one side and on the other from the site-IV industrial area Sahibabad PS Link Road up to NH-24. Many private commercial establishments make huge profit at the cost of environment, endangering public health thereby. The applicant has given following list of encroachers:-
1. Paras Milk Pvt. Ltd.
2. Country Inn Star Hotel
3. @Home (home appliances)
4. Bekaneer Wala (Eatery Food Joint)
5. Shiva Scooter Agency
6. Jain Marbles
7. Dabur India Pvt. Ltd.
8. Bhushan Steel
9. Euro Park Multiplex
10. Galaxy Multiplex
11. Pacific business Mall
12. Fast Track Car Mechanic Workshop
13. Coronation Service Station
14. Swagat Banquet Hall
15. Shivam Banquet Hall
16. Kumar Car World
17. Huyndai Show Room
18. Car Trade
19. Surya Marbles
20. R.K. Marbles
9. It was further stated that many other similar establishments are also mindlessly destroying the green belt as well as encroaching drainages for their own selfish motive of profiteering. The owner of P.T.C. Moulding Pvt Ltd plot no-54/18 site-4 industrial area had covered the small industrial waste drain, passing opposite the industry and concretized the green belt beyond the drain which choked ground water recharge and which will cause the water depletion. Owner of a private company at plot no-60/1/1/4, in Site IV Industrial Area, Sahibabad has covered the main drain of site-4, industrial area Sahibabad in connivance with the Ghaziabad Nagar Nigam, in violation of the Uttar Pradesh Municipal Act 7 1959. The owner has constructed a wall inside the sewage drain which was actually handed over to Ghaziabad Nagar Nigam by Uttar Pradesh State Industrial Development Corporation Ltd. (UPSIDC) for maintenance, cleaning and upkeep.
10. We now refer to the proceedings on the Application. On 05.02.2014, the Tribunal issued notice and also granted injunction against discharge of industrial waste in Sahibabad drain No. 1. It was further directed that no construction be put up to prevent flow of drainage. No unauthorized covering be put up on the drainage. On 03.03.2014, the Tribunal constituted a fact-finding Committee to inspect the area and to give its report. The composition of the Committee was :-
1. Ms. Parul Gupta, Learned Advocate
2. Mr. N.K. Gupta, Sr, Environmental Engineer, CPCB
3. Regional Officer of UPPCB, Ghaziabad.
4. One of the Forest Experts to be nominate by the MoEF&CC, Govt. of India
11. The terms of reference for the Committee were:-
"1. The Committee shall visit the entire area of Zonc-5 in so far as it relates to the maintenance of drainage system by the Municipal Corporation of Ghaziabad and find out the real physical position including the slabs, whether they arc put up permanently or arc removable, etc.
2. The Committee shall also find out the extent of the drainage in the area, which are covered and proposed to be covered and shall also indicate the places where constructions arc made and also used as parking area, including encroachments.
3. The Committee shall also in its report state as to whether untreated waste, either from the industry or otherwise, are discharged into the drainage System.
4. The Committee shall also find out the green belt area in the Zonc-5, Vaishali and whether they arc preserved or being destroyed by the Municipal Corporation of Ghaziabad and shall furnish proposal for preservation of the green belt area.
5. We make it clear that the MoEF, Government of India shall nominate the Forest Expert as its representative, within a period of one week from today. The learned Advocate who is 8 heading the Committee shall be paid an initial remuneration of Rs. 20,000/- by the Municipal Corporation of Ghaziabad.
6. The Municipal Corporation as well as GDA shall extend all assistance to the Committee Members so as to enable them to complete their work and file their report.
7. It will be open to the Applicant as also the Respondents to be present and express their views to the Committee at the time of inspection."
12. On 23.04.2014, the Tribunal noted that the Committee filed its report on which response of the Authority was required. Vide order dated 09.12.2014, the Tribunal impleaded some of the establishments who were reported to have made encroachments, including M/s VRS Foods (Paras Dairy), M/s Country Inn & Suits, M/s Bhushan Steels, M/s Cloud 9 Builders, M/s Swagat Banquet Halls, M/s Shivam Banquet Halls, M/s R.K. Marbles, M/s Kumar Car World and M/s Surya Marbles. Notice was directed to be issued to them. Some of them filed their replies.
13. Finally, order dated 07.10.2016 was passed by the Tribunal considering the report dated 23.04.2014 filed by the Committee constituted by this Tribunal and stand of the concerned parties. The said order considered following "points for determination":-
"Points for determination:
1. Whether this Tribunal has jurisdiction to entertain the present application;
2. Whether the present application is beyond the period of limitation as prescribed under the Provisions of NGT Act, 2010;
3. Whether construction carried out in and over the Nala/Sahibabad Drain no.1 violate Provisions of Water (Prevention and Control of Pollution) Act, 1974 in any manner whatsoever;
4. Whether construction on the green belt area Vaishali zone-5 offend environment;
5. What order?"9
14. It was held that since there were substantial questions relating to environment, particularly violation of Section 24 of the Water Act, the Tribunal had jurisdiction to deal with the application. The encroachments were ongoing since November, 2013. The application was within limitation. The encroachments in question impeded the flow of the water in the drain, resulting in stagnation of polluted water, giving rise to unhealthy conditions. All illegal and unauthorized constructions on the Sahibabad Drain No. 1 were liable to be removed. However, study was required to be carried out with regard to constructions raised with the permission/license granted by the Ghaziabad Nagar Nigam (GNN) for which a Committee comprising of Professor C.R. Babu, Centre for Environment Management of degraded ecosystem, School of Environment study, University of Delhi, Dr. Brij Gopal, Professor JNU, Professor A.K. Gosain Professor of Civil Engineering IIT, Delhi was constituted with reference to the following points:-
"
1. Whether construction carried on Sahibabad drain No. 1in pursuance to the permission/license granted by respondent no. 3- GNN namely the constructions carried out by respondent nos. 10 to 15, must be removed in environmental interest or can be tolerated with modification as required so as to beneficially integrate the same with the total scheme of Sahibabad drain No. 1 to carry the storm water.
2. The committee shall also make recommendations as they feel necessary in the interest of environment.
3. The expert Committee shall furnish its report with the recommendations to respondent nos. 2, 3, 4 and 5.
4. If the Expert Committee comes to the conclusion that the aforesaid constructions must be removed, the respondent no. 3- Ghaziabad Nagar Nigam shall take all such measures to remove the said construction/s at the expense of the concerned respondent.
5. If the Expert Committee recommends that such construction shall be allowed to be tolerated with modification as suggested, the concerned persons responsible for such construction namely, respondent nos. 10 to 15 shall carry out such modifications at their own cost and expenses within a period of three months from the date of submission of such report by the Expert Committee and the requisition made by the Respondent no.3- Ghaziabad Nagar Nigam in that regard to do so.
10
6. On submission of the report by the Expert Committee the respondent no. 3- Ghaziabad Nagar Nigam shall consider such report and make necessary requisition as suggested therein to the concerned persons. In the event of the failure to carry out such modifications as requisition the concerned structure shall be removed either by the concerned respondent or by the respondent no. 3 Ghaziabad Nagar Nigam at the expense of the concerned respondent.
7. The Respondent nos. 2, 3, 4 and 5 shall take all such measures for removal of all illegal and unauthorised constructions carried on Sahibabad drain No. 1 in accordance with law.
8. Respondent no. 3- Ghaziabad Nagar Nigam shall initially bear the cost and expense of the Expert Committee appointed for Study of Sahibabad drain No. 1and recover the same from the respondent nos. 10 to 15.
9. Respondent nos. 10, 12 to 15 shall deposit an amount of Rs. two lakhs each with Respondent no. 3- Ghaziabad Nagar Nigam towards costs and expenses of the Expert Committee.
10. Respondent no. 3- Ghaziabad Nagar Nigam and Respondent no. 4 UPPCB are directed to take all such lawful measures, both preventive and punitive for stopping flow of discharge of untreated sewage/industrial effluent in Sahibabad drain No. 1. No discharge of untreated sewage/industrial effluents, dumping of MSW or any other waste shall be allowed in Sahibabad drain No. 1.
11. Respondent no. 3- Ghaziabad Nagar Nigam shall pay cost of Rs three lakhs to the applicant and respondents shall bear their own costs.
12. O.A No. 16 of 2014 stands disposed of accordingly. M.A Nos. M.A. No.102/2014, M.A. Nos. 451, 741, 1353, 1354, 1355 and 1356 of 2015 and M.A. No. 208/2016 also stand disposed of."
15. The Committee gave its report which was taken on record vide order dated 12.10.2017. Vide order dated 26.02.2020, the Tribunal directed the Ghaziabad Nagar Nigam to execute order dated 7.10.2016 in terms of the recommendations of the Committee in the report submitted in October, 2017.
16. Report taken on record on 12.10.2017 is as follows:-
"3. The overall observations are as follows:
a. Drainage System of Sahibabad Drain No. 1 & its Maintenance i. Around 10 km stretch of the Sahibabad drain no. 1 starting from upstream to downstream, was visited. The points covered include starting from Shyam Enclave - Shaheed Nagar ( GT Road), then to Block C ( Brij Vihar), 11 Block B ( Brij Vihar), Block A (Brij Vihar) BEL Staff Quarters, Fly-over to railway crossing, M/s Paras Dairy ( Sahibabad Industrial Area Site IV), M/s IP Engineering College (SIA Site IV), M/s Country Inn ( SIA Site IV), M/s Bikanervala (Delhi Hardwar Highway), M/s Bhushan Steels ( D-H Highway), M/s Cloud 9 Builders and tapping point over the drain for diverting the flow to Indirapuram STP.
ii. It is a natural storm water drain and the average width of the drain in the Sahibabad Industrial Area Site IV is around 50-60 feet iii. It is observed that various types of discharges are made into the drain which are as follows:
o Discharge of storm water during rainy season.
o Daily and continuous discharge of sewage from the residential areas located on both the sides of the drain. Near Shaheed Nagar, a pumping station is also made which is pumping the waste-water into the drain.
o Rearing of buffaloes /other pet animals are being practiced along the banks of the drain in the Brij Vihar & some other locations and discharges of such activities along with animal dung etc. are also made into the drain.
o The drainage network of Sahibabad Industrial Area is connected with Sahibabad drain and as a result entire waste waters from the industrial area is ultimately reaching to this drain at various locations.
o The municipal (household) solid wastes (hundreds of tonnes) are thrown into the drain by the nearby residents at various points.
o Large number of Marriage Halls / Banquet Halls are in operation in and around the drain. During discussion, it was also intimated by the local people that significant quantities of kitchen wastes, food wastes etc. are thrown into the drain on regular basis.
iv. The overall maintenance of the drain is very poor. It is observed that hundreds of tons of garbage is deposited at various points in the drain which is imparting very ugly look to the drain and stagnating its flow. In a similar way, deposition of silt and growth of undesirable vegetation in the drain are also observed. As a result, foul smell & odour are generating which are creating unhygienic conditions in the entire area. In addition, 12 these foul gases in the presence of moisture are adversely affecting the functioning of the house-hold appliances like refrigerators, air-conditioners, utensils etc of the population living in the neighborhood of the drains.
b. Status of construction over the Sahibabad drain:
i. It is observed that a large number of establishments/ industries have covered the drain in front of their respective premises. The average extent of covering is varying from 100- 150 metres and average width of the drain at these locations is. around 15-20 metres. The covered portion is being used purely for commercial usages i.e. for getting the access into their premises as well as for parking of the vehicles of the employees and visitors of these establishments. These covering of drain is made-up of reinforced cement concrete (RCC) and purely permanent in nature.
ii. In almost all the cases, the covering of drain is undertaken with due permission of the Municipal Corporation of Ghaziabad (Nagar Nigam, Ghaziabad) and agreements are made. The unit-wise details of the permission granted by Nagar Nigam, Ghaziabad is attached as Annexure 2.
iii. It is also observed that in many cases, the actual covering / construction over the drain is much more than the permission granted by Nagar Nigam, Ghaziabad.
iv. Nagar Nigam, Ghaziabad is charging significant amount of annual fee but hardly monitoring the compliance of the Agreement Conditions. One of the major conditions is to develop/ maintain the green belt over the covered portion which is largely violated in almost all the cases. In a similar way, provision for cleaning & ventilation of the covered drain are also not adequate in many of the cases. Even in some cases, septic and highly unhygienic conditions are developed.
v. At plot no. 60/1 (SIA , Site IV) , the work pertaining to construction for covering of the drain has been initiated and around 60-70% of the natural flow of the drain is stopped by putting sand-bags to facilitate construction As a result, the conditions of the u/s has further worsened.
c. Status of construction/ encroachments on the land adjacent to Sahibabad drain:
Many of the establishments have encroached the land also adjacent to the drain purely for commercial purposes. These lands are initially earmarked for widening of the roads and development of green belts. The construction over these 13 encroached portions are permanent and used for parking of vehicles and putting the raw materials and finished products.
d. Major Defaulters in respect of covering of drain, improper cleaning facilities and encroachment of adjacent land i. Plot No. 60/1 (SIA, Site IV) ii. M/s VRS Foods (Paras Dairy) iii. M/s Country Inn & Suits iv. M/s Bhushan Steels v. M/s Cloud 9 Builders The unit-wise inspection report is attached as Annexure 3.
e. Status of discharge of Untreated Industrial Waste water into Sahibabad drain It is communicated by UPPCB that inspection & monitoring of industries are conducted on regular basis. Earlier some of the industries were discharging untreated industrial waste waters and their names were communicated to NGT. After joint inspection by CPCB& UPPCB and regular follow-ups such industries have rectified their pollution control practices. Recently it is observed during routine inspection by UPPCB that the ETP of M/s Shri Krishna Prints Pvt Ltd. A-47, Site IV SIA, is not being operated properly and observed as non-complying. Accordingly action has been initiated by UPPCB.
f. Status of construction in the green belt area of Vaishali Zone V i. It is observed that at many places permanent constructions are made in the green belt area of Vaishali Zone V and commercial activities are going on at such places. Some of such establishments are as follows:
o M/s Swagat Banquet Halls
o M/s Shivam Banquet Halls
o M/s R.K. Marbles
o M/s Kumar Car World
o M/s Surya Marbles and many others
ii. It is said by GDA that notices have been issued to these
parties for winding-up of such unauthorized/ illegal activities from the green belt area.
iii. On the issue of construction of multi level car parking near Vaishali metro station, it is said by GDA that this construction work is although in the green belt area but is as per the provisions of the Ghaziabad Master Plan, 2021. GDA is ready to provide further clarification/ details of this project to NGT. During inspection, the work was observed in progress 14 iv. The Eucalyptus trees along the road (in front of Vaishali Merto Station) belong to UP Forest Department. So, the remaining earthen road strip is also covered under the legal status of Forest Land. Most of this forest strip along this road is either under encroachment or has been used in unauthorized access by commercial organizations (including Vaishali Metro Station) in violation of Forest Conservation Act 1980.
4. Suggestions:
i. Discharge of MSW, animal waste and wastes generated from the activities of banquet halls / marriage halls, into the Sahibabad drain & its tributaries, should be stopped immediately. Proper system for disposal of such wastes needs to be developed by GDA and Nagar Nigam, Ghaziabad.
ii. Its thorough cleaning should be made so as to re-store the natural flow. For this purpose a special drive needs to be launched by GDA and Nagar Nigam, Ghaziabad.
iii. Major penalty needs to be imposed on the establishments, who have violated the conditions of the 'Agreement' and permission for covering of the drain be cancelled immediately.
iv. Separate systems for collection & conveyance of the following types of waste-waters/ waters need to be laid in a time bound manner sewage in the area -
a. For sewage from the nearby colonies - a trunk sewer. This will avoid discharge of sewage into Sahibabad drain.
b. Separate drainage network for industrial waste waters. This will carry the treated industrial waste waters to final disposal point subject to testing & compliance of the standards.
c. The storm water (rain water) will flow through Sahibabad drain.
v. Encroachments from the land earmarked for green-belt need to removed in a time bound manner.
vi. Since the multi-level parking near Vaishali metro station is being constructed within the Green Belt, it may only be permitted after GDA provides a complete information as to whether permission for conversion of the land use has been obtained by the Department. Further, the department shall provide the plan for compensatory afforestation giving specific details of the number and species of trees intended to be planted in lieu of the trees 15 which have already been felled or would be felled in the process of the construction. The department should also take care that the construction should involve felling of minimum number of trees.
vii. Presently only a part of the waste-water is tapped from the Sahibabad drain for further conveyance to 74 MLD STP at Indirapuram although adequate capacity is available and entire drain can be tapped. Compliance of this action point can significantly reduce the pollution load on Yamuna.
viii. The encroachment/unauthorized access through forest strip along the road (in front of Vaishali Metro Station) should be removed/regulated under the guidelines of Forest Conservation Act 1980."
17. 2nd report dated 12.10.2017 is as follows:-
"OBSERVATIONS:
Each of the five sites was visited. After interaction with the representatives of the respondents, following observations have been made.
Respondent no. 10: Stonex (Chawla) plot 60/1 The drain had been covered by laying steel girders and concrete slabs over the entire width of the drain and about 50 m length. Part of it has been demolished now. There seems to be no construction yet on the plot as visible from the road along the drain.
Respondent no. 12: VRS Foods (Paras Dairy) plots B-56 and B-33
Half of the width of the drain adjacent to the main road has been covered for about 50 m length, besides full coverage of the drain along one of the plots. The covered area is used for parking of vehicles.
Respondent no. 13: Country Inn & Suites The drain on the south and the east of the plot has been covered fully, over the entire length and width, between the Country Inn building and the roads on two sides. A 4-5 m wide strip of road on both sides has also been encroached upon. A couple of manholes (covered with steel plates) have been provided over the drain.
A steel screen with large mesh has been installed at the point of entrance of the drain adjacent to the northwest corner of the plot to prevent large floating wastes from passage through the drain. Thus a huge amount of solid waste has accumulated in the upstream part of the drain. It is probably removed once in a while. At any time, there is a waste accumulation on the land between the drain and the road 16 Respondent no. 14: Bhushan Steels The entire stretch of the drain (about 250 m) passing between the main road and the plot has been fully covered and the covered area extends right on to the road. In two rows along the length of the drain small openings have been provided. The covered area is used mainly for parking of a very large number of vehicles and a few plants have been planted there.
Respondent no. 15: Cloud 9 Builders (Adhibest) The entire drain in front of the building complex and along the road has been covered. Three large (about 2x3 m) areas, presumably for access for desiltation, have been marked as openings with about 2 feet high RCC boundary. The openings themselves are covered with thick RCC slabs. Some of the covered area is being planted with seasonal plants and grass.
General Observations
1. Almost the entire drain through the industrial area has been covered. Only few, small| stretches are open to sky particularly where the plots have not yet been fully developed. The entire area is filled with foul smell caused by high load of sewage and organic wastes that is releasing both ammonia and H2S due to highly anaerobic conditions. Huge amounts of sludge have accumulated in the drain as can be seen in open stretches. The areas are also loaded with all kinds ofsolid wastes and near the Express Building, rag pickers are at work. These wastes are a direct health hazard to the people living the area, workers in different establishments and also those doing petty business along the roads. All the people passing through the area are exposed to foul smelling gases. The natural vegetation is practically non-existent. The industrial effluents appear to be toxic and interfering with the degradation of the organic waste.
2. The natural stormwater channel of Sahibabad has been turned into a sewage drain carrying the waste from the entire area first to Hindon river and then into the river Yamuna. Only a small fraction of the wastewater from the drain is diverted to the STP in Indirapuram. Thus the drain is a major cause of pollution in River Hindon and downstream Yamuna.
3. The natural drain should have not been allowed to carry sewage and industrial wastewater in the first place. After the development of the Industrial area by the UPSIDC, the GNN allowed the industries to cover the drain after entering into a formal agreements and asking them to pay certain charges in lieu thereof. This act itself motivated by raising revenue is against the environment and the relevant provisions of the EPA.
The industries on their part, extended the covered area to suit their needs- far beyond the permissions by the GNN. In our opinion, the GNN is to be faulted for entering into agreements for covering the drain and then turning a blind eye to the extensions and violations in the covered area.
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4. It is practically impossible to clean the drain in the absence of adequate access through large openings at reasonable intervals.
RECOMMENDATIONS We recommend the following actions to be taken.
1. All covers and encroachments of the drain including those of the five specific respondents (no. 10, 12, 13, 14,15) should be removed/demolished. The entire Sahibabad drain should be restored as a natural storm water drain and no sewage or industrial effluent should be allowed to be discharged into it.
2. As a first step to restoration all concrete covers over the drain and other constructions, if any should be removed/ demolished. Then, the entire stretch of the drain should be thoroughly desilted with proper sloping banks to its natural cross sections. The banks of the drain should be protected by developing green cover with trees and tall grasses. All encroachments on to the road or the drain should be completely removed.
3. All sewage and industrial effluents should be segregated and not allowed to flow into the natural drain. We understand that the GNN is planning to implement a sewerage network in the unsewered areas of the Gaziabad also. As far as the industrial effluents are concerned, the industrial area should be provided a separate common effluent treatment plant as per CPCB norms.
4. After the restoration of the natural drain, a single access of appropriate width may be provided over the drain from the main road to each of the respective plots. The width of the access over the drain should not exceed 6 meters that shall permit proper maintenance of the drain below it
5. While the construction of a sewerage network in the area may take some time, the demolition of the cover over the drains should be undertaken immediately and the free flow in the entire drain should be restored along with desiltation and removal of all solid wastes. This demolition of the covering will help regular cleaning of the drain and unrestricted flow of storm water.
6. We take this view of restoration of the drain as a natural storm water drain in the interest of the ecology and the environment of the entire region.
a. The flow of storm water from its catchment will allow the natural drain to recharge ground water, mitigate urban flooding and support rich bio-diversity.
18 b. The green cover along the drain will also help improve the micro-climate, reduce levels of pollutants especially particulate matter and dust and toxic gases in the atmosphere. It will improve the aesthetics and serve as the lungs of the city.
c. The clean water flowing through the natural drain will also enrich the aquatic biodiversity particularly the birds. Additional Suggestions A. We note from the order of the NGT dated 7th October 2016, that the removal of the cover over certain parts of the Sahibabad drain was objected in light of an earlier judgement of the Hon'ble NGT that had spared some of the covered natural drains within Delhi. We observe that the Sahibabad drain no.1 passes through an industrial area and had been allowed to be covered by the GNN only recently and that too on a long lease against the consideration of the certain amounts to be paid annually by the lessee. Such a permission to cover the drain was against the considerations for the protection of the environment and the ecology of the area. In our view, a wrong decision on the part of the GNN is not justified under the present circumstances where almost the entire drain has been covered and getting choked with silt, sludge and solid waste creating nuisance and toxic gases in the air.
B. We suggest in view of similar situation prevailing in almost every city of the country that the Honourable NGT may issue necessary directions in this regard to all local urban bodies not to allow covering of the natural storm water drains and not to permit the entry of any kind of sewage or industrial effluent into the natural drains. Wherever, the storm water drains are covered and a receiving sewage or effluents should be restored to the extent possible."
Consideration of Objections of the some of the alleged encroachers
18. We now consider the objections filed. Submission filed on behalf of R-10, Stonex India Pvt. Ltd. is that the drain has to be covered to make approach road for use of property of the said party. It is not discharging any effluent in the drain. The Ghaziabad Nagar Nigam (GNN) has granted necessary permission. The Delhi High Court in W.P. (C) No. 2385/2011, IFS Co-operative Group Housing Society & Ors. v. GNCTD & Ors., permitted covering of a drain. Drain in question, is a man made drain to carry industrial discharge and storm runoff. Now it is carrying sewage also. Land for drain was acquired by the UPSIDC in 1970. It carries waste water from 19 Delhi Border to Hindon and to Kalindi Kunj drain. Waste of animal husbandry and MSW is also dumped into the drain, apart illegal sewage outlets by encroachers. There is no sewerage network in unauthorized area. It is an open sewer and poses a threat to the health and safety. Only a part of the drain has been covered. Total length of the drain is 13 Kms. 13% of the drain has been covered which includes bridge maintained by PWD over the GT Road, Link Road, Railway Line and metro Line, which covers the major part of the drain. Box Method use to cover the drain was suggested by IIT Roorkee. The PP was allotted land and after necessary approvals, approach roads has been constructed by covering the drain. There is, thus, no unauthorized construction.
19. Objection/submission of R-14, M/s Tata Steel Limited with reference to the report of the Committee dated 23.04.2014 is that it has taken over the project from Bhushan Steel Limited in pursuance of Insolvency and Bankruptcy proceedings before the NCLT. With reference to report with regard to maintaining the Sahibabad Drain No. 1, the said Project Proponent (PP) has submitted that it has installed its own ETP. Waste water is used within the premises and its samples are compliant with the norms. With regard to covering of the drain, it is stated that same is after approval of the Municipal Corporation on 20.08.2000. The PP undertakes cleaning of the drain after removing the covers from time to time. License for covering the drain has been granted on 18.01.2010 for use as car parking outside the premises for which payment has been made. The terms of the agreement are being followed. The extent of covering is as permitted. The drain is not a natural storm water drain but a manmade drain.
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20. Submission/objection of R-5, M/s Cloud 9 Builders, is that covering of the drain is required in the interest of public health and safety. It has been undertaken in consultation with the IIT, Roorkee and after approval of the GNN. It is a man made drain. With regard to the report of the Committee, it is stated that only 14.75% of the drain has been covered which does not cause any difficulty in cleaning of the drain. Even in past covering of drain has been allowed by this Tribunal in various orders.
21. Though no written submission has been filed, an oral submission has been made on behalf of the R-13, M/s Country Inn & Suites to the effect that the PP can make modification in the covering of the drain and use removalable slabs so that cleaning of the drain is not obstructed. Finding & directions
22. From the above narrative, it is clear that part of the drain has been covered and constructions raised within the buffer zone from the edge of the drain. This obstructs flow and maintenance of the drain against statutory mandate of section 24 of the Water Act as well as plan of the NCR Board. Further, the drain is polluted. Some of the Respondents have claimed permission for such covering while many coverings/constructions are without such permission. The objections do not in any manner show how such constructions/covering of drain is legally sustainable in view of Water Act, NCR Act and other environmental consideration which cannot be overridden merely on the basis of any permission of the Nagar Nigam or property rights of such violators. There is no proposal for remedial action. Recommendations of the fact finding/expert Committees have thus to be accepted.
23. We find that covering of a drain obstructs flow of the river and is not environmentally permissible with or without permission of a Nagar Nigam. 21 Not only drain, but reasonable buffer area from its edge has to be left free as held in Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors. (2019) 18 SCC 494 (Para 21). Preferably such buffer zone should be covered by dense forest. Section 24(1)(b) of the Water Act prohibits any obstruction of the flow of water of a stream which may add to pollution. 'Stream' is defined under Section 2(j) to include a water course, whether flowing or dry. It is, thus, clear that storm water drain falls in the definition of 'stream', whether man made or natural. Covering of the drain and constructions affect the flow and drainage. In Mantri Techzone, supra, the Hon'ble Supreme Court upheld the directions of this Tribunal to maintain buffer zone on all drains - primary, secondary and tertiary. Some of the observations therein are:
"xxx ...........................................xxx.................................xxx
21. It is evident from the above orders that the Tribunal had granted opportunity to the parties to address it "limited question", as aforementioned. The Tribunal after hearing the parties passed an order dated 04.05.2016 as under:
" General Conditions or directions:
1. In view of our discussion in the main Judgment, we are of the considered view that the fixation of distance from water bodies (lakes and Rajkalewas) suffers from the inbuilt contradiction, legal infirmity and is without any scientific justification. The RMP - 2015 provides 50m from middle of the Rajkalewas as buffer zone in the case of primary Rajkalewas, 25m in the case of secondary Rajkulewas and 15m in the tertiary Rajkulewas in contradiction to the 30m in the case of lake which is certainly much bigger water body and its utility as a water body/wetland is well known certainly part of wet land. Thus, we direct that the distance in the case of Respondents Nos. 9 and 10 from Rajkulewas, Waterbodies and wetlands shall be maintained as below:-
(i) In the case of Lakes, 75m from the periphery of water body to be maintained as green belt and buffer zone for all the existing water bodies i.e. lakes/wetlands.
(ii) 50m from the edge of the primary Rajkulewas.
(iii) 35m from the edges in the case of secondary Rajkulewas 22
(iv) 25m from the edges in the case of tertiary Rajkulewas This buffer/green zone would be treated as no construction zone for all intent and purposes. This is absolutely essential for the purposes of sustainable development particularly keeping in mind the ecology and environment of the areas in question.
All the offending constructions raised by Respondents Nos. 9 and 10 of any kind including boundary wall shall be demolished which falls within such areas. Wherever necessary dredging operations are required, the same should be carried out to restore the original capacity of the water spread area and/or wetlands. Not only the existing construction would be removed but also none of these Respondents - Project Proponent would be permitted to raise any construction in this zone.
All authorities particularly Lake development Authority shall carry out this operation in respect of all the water bodies/lakes of Bangalore.
xxx ...........................................xxx.................................xxx
24. It was also argued that buffer zone laid down by the NGT is substantially higher as compared to buffer zone which is required to be maintained as per the Revised Master Plan, 2015 issued on 22.06.2007. This is contrary to the Karnataka Town and Country Planning Act, 1961 (for short 'the Planning Act'). xxx ...........................................xxx.................................xxx
47. Section 33 of the Act provides an overriding effect to the provisions of the Act over anything inconsistent contained in any other law or in any instrument having effect by virtue of law other than this Act. This gives the Tribunal overriding powers over anything inconsistent contained in the KIAD Act, Planning Act, Karnataka Municipal Corporations Act, 1976 ("KMC Act"); and the Revised Master Plan of Bengaluru, 2015 ("RMP"). A Central legislation enacted under Entry 13 of List I Schedule VII of the Constitution of India will have the overriding effect over State legislations. The corollary is that the Tribunal while providing for restoration of environment in an area, can specify buffer zones around specific lakes & water bodies in contradiction with zoning regulations under these statutes or the RMP."
24. Mere fact that the permission has been granted by the GNN cannot be of any consequence to remedy such illegality. It is well settled that protecting and maintaining drains is covered by the doctrine of public trust under which certain environmental assets vest in the people. The State has to act as a trustee. Storm water drain has important ecological 23 functions in augmenting water supply. Discharge of untreated sewage in such drains is prohibited under the Water Act. So is obstructing its flow. The Nagar Nigam is thus not only under an obligation to prevent discharge of any pollutant into the drains (whether natural or manmade) but also prevent impeding its flow. In view of section 24 of the Water Act, it is not possible to accept that the Nagar Nigam can, in exercise of its contract making power or authority responsible for maintaining the drain, allow either impeding of flow or polluting of the drain. The Nagar Nigam is to act as a trustee in respect of the drain. The powers of the Nagar Nigam are not unlimited so as to either by itself or through anyone else violate the mandate of the Water Act. Reference may inter-alia be made to M.I. Builders (P) Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464 (Paras 45 to 50). Relevant observations are:
"xxx ................................................xxx.............................xxx
50. ..... The Mahapalika is the trustee for the proper management of the park. When the true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort case2. Public trust doctrine is part of Indian law. In that case the respondent who had constructed a motel located at the bank of River Beas interfered with the natural flow of the river. This Court said (at SCC p. 413, para 35) that the issue presented in that case illustrated "the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsivities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered in violate to change".
51. In the treatise Environmental Law and Policy: Nature, Law, and Society by Plater Abrams Goldfarb (American Casebook Series, 1992) under the Chapter on Fundamental Environmental Rights, in Section 1 [The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that "long ago there developed in the law of the Roman Empire a legal theory known as the 'doctrine of the public trust' ". In America public trust doctrine was applied to public properties, such as shore lands and parks. As to how that doctrine works it was stated:
2
M.C. Mehta v. Kamal nath, (1997) 1 SCC 388 24 "The scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests 'like the air and the sea' have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is the principal purpose of a Government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit...."
With reference to a decision in Illinois Central Railroad Co. v. lllinois3 it was stated that "the Court articulated in that case the principle that has become the central substantive thought in public mist litigation. When a State holds a resource which is available for the free use of the general public, a court will look with considerable scepticism upon any governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties".
This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution."
25. Accordingly, on admitted facts and even after considering all objections of the PP, we conclude that constructions on the drain and its buffer zone either with or without permission of the Nagar Nigam are illegal. Buffer zone has to be fixed either by the authorities or may be determined by the Tribunal. In the present case, buffer zone stands defined by the NCR Planning Board, Ministry of Urban Development, Govt.
of India, which applies to the present case.
Functional Plan on Drainage for National Capital Region
26. NCR Planning Board, Ministry of Urban Development, Govt. of India in its meeting held on 28.04.2016 approved Functional Plan on Drainage for National Capital Region (NCR)4. The issues considered in the said plan include protection of natural drainage system and allied issues. The plan has been prepared in the light of recommendations of a study group under 3 146 US 387: 36 Led 1018 (1892) 4 http://ncrpb.nic.in/pdf_files/FunctionalPlanondriangeforNCR.pdf 25 the chairmanship of Engineer-in-Chief, Department of Irrigation, Govt. of Haryana with the Chief Regional Planner, NCRPB as the co-chairman. Other members of the Study Group includes Director, Central Water Commission (CWC), Govt. of India; Chief Engineers of Deptt. of Irrigation of the NCR participating States, U.P. Jal Nigam, Delhi Jal Board; Chief Town Planners/Chief Co-ordinator Planners of the NCR participating States, etc. The plan has examined various aspects having impact on the drainage system of an area, such as geology, geomorphology, physical features, hydro-meteorology as well as the existing drainage system of various subregions, pollution, etc., besides studying various norms & standards e.g. design criteria of drainage system in the participating States, CPHEEO norms, recommendations by National Disaster Management Authority (NDMA) on Drainage, etc. In order to ensure an efficient drainage system in NCR, the Functional Plan has given important recommendations on protection of natural drainage system; promotion of recreational use along drainage channels; preparation of Master Plan of inter-state regional drainage and for individual cities/towns; segregation of sewage and drainage, etc. Some of the discussion in the report is quoted below:
"xxx ................................................xxx.............................xxx 8.2.4 Encroachment on Natural Drainage Channels in Urban Areas Natural streams and watercourses have formed over thousands of years due to the forces of flowing water in the respective watersheds. Habitations started growing into towns and cities alongside rivers and watercourses. As a result of this, the flow of water has increased in proportion to the urbanization of the watersheds. Ideally, the natural drains should have been widened (similar to road widening for increased traffic) to accommodate the higher flows of storm water. But on the contrary, there have been large scale encroachments on the natural drains and the river flood plains. Consequently the capacity of the natural drains has decreased, resulting in flooding.
Generally the drains and linear patch of land on either side of the drain are neglected due to foul smell and filthy look due to drain.26
Because of this reason the land value along drain is lower compared to other lands in the city. Local authorities also neglect the nallah land and its surroundings because this land does not provide any source of income to them. The negligence by local authorities provides an opportunity for the encroachers to carry out construction activities on the lands along the nallahs. The encroachment also reduces the effective width of the drain, which further aggravates the problem in monsoon.
xxx ................................................xxx.............................xxx
iv) Covering of Drains/Construction over the Drainage Channels A new phenomenon has been observed that in urban areas drains and natural nallahs are covered for urban activities use mainly for transportation and commercial activities due to scarcity of land in the cities. The covering of drains poses difficulty in cleaning and leads to reduction in the carrying capacity of the drains."
xxx ................................................xxx.............................xxx
vi) Silting of Drains During the rain the velocity of water is high. This high speed flowing water washes the earth and carries with it soil, leaves, wood logs, dead bodies etc. The soil carrying capacity of water decreases with the reduction in velocity of water. After reduction in velocity of water, floodwater leaves behind this material in the drain. This reduces the carrying capacity of Drain. And to carry the same quantity of water wider drain is required. Otherwise the water spread (flooding) takes place. To maintain the same carrying capacity in a limited width, the drain need to be cleaned periodically.
xxx ................................................xxx.............................xxx
(i) Mixing of Sewage and Drainage Storm water drainage is meant to carry storm water (rain water) or any other clean surface water. It is fundamentally neither suitable nor designed for carrying sewage or industrial wastewater or even septic tank effluent. Even the effluent from the sewage treatment plant cannot be discharged into drain unless it meets the norms set by the Bureau of Indian Standards (BIS) code and the Central Pollution Control Board. In urban areas it is desirable to have separate system for carrying the sewage and storm water. In accordance with this principle in cities, the drainage and sewerage systems are provided separately. The problem arises due to blockage in sewerage system resulting the back flow in houses and in nearby areas. In order to avoid back flow and immediate relief is given by puncturing the sewerage line and diverting the sewage to nearby drains. Thus in urban areas the drains also serves as a substitute to sewerage system, for which the drains are not designed. The raw sewage mixed with storm water directly flow to the major drains and ultimately to the rivers cause serious water pollution in rivers which are the major source of drinking water of supply effects the aquatic life. There is a need to plan and construct separate sewerage and drainage system 27 and necessary measures may be taken so that sewage are not punctured during floods and drained into the drains. xxx ................................................xxx.............................xxx "8.3.4 Buffer Along/Around Water Bodies Expert Committee constituted by Ministry of Home Affairs, GOI had proposed amendments to Rules and Bylaws, relating to Layout approvals and Building Permissions, to address disaster management issues. The following recommendations of the Expert Committee relating to restrictions of building activity in the vicinity of areas may be adopted which will help in conservation of water bodies and prevent them from pollution:
The water bodies and watercourses be maintained as recreational/green buffer zone and no building activity other than recreational use be carried out within;
i) 100 m from the river edge outside Municipal Corporation /Municipal limits and 50 m within Municipal Corporation /Municipal limits. No permanent construction be permitted within the buffer zone.
ii) 50 m. from the boundary of lakes of surface area for 10 ha.
and above,
iii) 30 m. from the boundary of lakes of an area of less than 10 ha/ponds/tank bed lands
iv) 12 m. from boundary of major canal, streams nallahs, canals, etc."
xxx ................................................xxx.............................xxx 8.3.10 Regulation for Covering of Drain In urban areas drains run along the roads and public is allowed to cover drains in front of their entrances for access from roads. It has been observed that the drains are covered along the property boundary especially in the commercial property. This results into covering of drains for a longer distance and cleaning becomes difficult which ultimately leads to blockage of drain and flooding on roads. A standard design for the drain for removable cover at regular interval should be incorporated in building byelaws so that the above problem can be avoided. It should be checked by the agency while granting building permission or at the time of providing occupancy certificate. A provision for recovering the demolition costs from the property owners, if any, should be integral part of Bye laws. It is recommended that the practice of covering the drains for construction of roads should be stopped. Even the bridge/elevated road running over the drain along the alignment of the drain should also be discouraged as pillars obstruct the flow and movement of cleaning machines/ equipment's."
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27. Even though the Hon'ble Supreme Court in Mantri Techzone, supra, has approved larger buffer zones ranging from 25 meters to 50 meters from the edge of the drain (depending upon size of the drain), the buffer zone laid down by the NCR Planning Board which is lesser area, must be followed in the NCR, which includes Ghaziabad. Thus, all constructions within the buffer zone of 12 meters from the edge of any drain have to be held illegal and liable to be removed. This will include constructions raised by the project proponents who have filed objections before this Tribunal. No further construction can be allowed in the buffer zone. Preferably, it should be covered by forest. There can be no estoppel against law and mere fact of construction having already been made can be no defence to need for protection of environment in the larger interest of the society.
28. However, in the peculiar facts and circumstances, we are not averse to exploring viable alternative such as laying of a proper sewer line, enabling pollution and obstruction free flow of the storm water drain. If any such plan is found viable and prepared with cost being recovered entirely or partly from the PPs or any other violators /beneficiaries within a period of one year, the demolition can be reconsidered, though not an ideal situation. Thus, while holding and directing demolition of illegal constructions, we leave it open to consider a viable alternative by a Joint Committee headed by the Member Secretary, NCR Planning Board, Ministry of Urban Development, GoI with nominee of Ministry of Jal Shakti (MoJS) not below the rank of Joint Secretary, Additional Chief Secretary, Urban Development, UP Commissioner, GNN, District Magistrate, Ghaziabad and UP PCB as members, with Additional Chief Secretary, Urban Development, UP being the nodal agency for coordination and compliance. Meeting of the Committee may be held within one month and its interim report prepared within two months thereafter. In case it is 29 found that a sewer line can be duly constructed, enabling pollution and obstruction free flow of storm water drain, with or without contribution or such private parties, a report be filed within four months. The affected parties are free to represent to concerned authorities for such consideration offering the full or part of the cost involved. The Committee is free to meet online or otherwise and associate any other individual/department/expert.
29. In case option suggested is not found workable, all coverings of drain and constructions within buffer zone of the drain may be demolished after four months and drain with buffer zones maintained free of pollution and covering/encroachments. This will be the responsibility of the Commissioner, GNN, District Magistrate, Ghaziabad and SSP, Ghaziabad. Needless to say, that in case if an alternative is found viable, the Tribunal may pass further order considering the report of the committee. Directions
30. To sum-up, our directions are:
(i) All constructions/encroachments in the bed and 12 meter buffer zone from the edge of Sahibabad Drain No. 1 in Ghaziabad and all its coverings are per se illegal and are liable to be demolished, irrespective of any permission by the Nagar Nigam.
The drain is liable to be restored and allowed to flow without obstruction and pollution which will be the responsibility of the Nagar Nigam with oversight of higher authorities and regulators.
(ii) Demolition of above illegal constructions may be carried out unless viable and acceptable alternative to restore environment and Drain by a suitable sewer line enabling free flow and unpolluted storm water open drain is worked out upto 01.10.2022 30
(iii) In case of representation in terms of direction (ii), a Joint Committee headed by the Member Secretary, NCR Planning Board, Ministry of Urban Development, GoI, with nominee of Secretary, MoJS, GoI, Additional Chief Secretary, Urban Development, UP, Commissioner, Ghaziabad Nagar Nigam, District Magistrate, Ghaziabad, and UP PCB as members may consider the matter and give its report to the Tribunal 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 on or before 15.09.2022 about a viable alternative for sewer line being laid and simultaneously storm water drain being allowed to flow unpolluted and uninterrupted. This may be with full or partial financial contribution of affected/benefited parties, to be executed within the outer limit of one year from today.
(iv) If any such report is filed, the same may be simultaneously placed on the website of the UP PCB for being accessed by any of the affected parties.
(v) The report, if filed, be placed before the Tribunal on 28.09.2022 for consideration.
Subject to above, the application is disposed of. A copy of this order be forwarded to NCR Planning Board, Ministry of Urban Development, GoI, MoJS, GoI, Additional Chief Secretary, Urban Development, UP, Commissioner, Ghaziabad Nagar Nigam, District Magistrate, Ghaziabad, SSP, Ghaziabad and UP PCB by e-mail for compliance.
Adarsh Kumar Goel, CP 31 Sudhir Agarwal, JM Prof. A. Senthil Vel, EM May 13, 2022 Original Application No. 16/2014 A + DV 32