Punjab-Haryana High Court
Maharishi Markandeshwar Developers ... vs State Of Haryana And Ors on 13 February, 2025
Author: Sureshwar Thakur
Bench: Sureshwar Thakur, Vikas Suri
Neutral Citation No:=2025:PHHC:021129-DB
CWP No. 1101 of 2013 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
CWP No. 1101 of 2013 (O&M)
Reserved on: 16.1.2025
Date of Decision: 13.2.2025
Maharishi Markandeshwar Developers Private Ltd. ......Petitioner
Versus
State of Haryana and others .....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE VIKAS SURI
Argued by: Dr. Pankaj Nanhera, Advocate with
Mr. Rahul Gautam, Advocate and
Mr. Yogesh Vashista, Advocate
for the petitioners.
Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. Pardeep Prakash Chahar, Sr. DAG, Haryana and
Mr. Saurabh Mago, DAG, Haryana.
Mr. Sunil K. Dhanda, Advocate
for respondent No. 8.
Mr. Ashish Rawal, Advocate
for respondent No. 9.
****
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioner seeks a writ in the nature of certiorari, thus for quashing the notification bearing No. CCP (NCR)/AMB/FDP/2012/2916 dated 6.9.2012 (Annexure P-30), wherebys the respondent-State has notified the Final Development Plan 2025 AD for Ambala, and, also seeks the quashing of Drawing No. DTP (A) 2923/2012 dated 3.9.2012 (Annexure P-31), wherebys the classification of the land belonging to the petitioner, has been changed from 'residential' to 'agricultural' and has been brought under 'agriculture operations, wherebys, it has been declared that theretos no change of land use/licence shall be 1 of 33 ::: Downloaded on - 14-02-2025 05:27:05 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -2- granted'.
2. Furthermore, the petitioner has sought a relief that the respondents concerned, be directed to decide his application for the grant of licence to develop a residential plotted colony over the petition land measuring 95.431 acres, falling within the revenue estate of village Sarsehri/Rampur, Tehsil and District Ambala.
Brief facts of the case
3. It is averred in the instant petition, that the petitioner is an infrastructure development company having its registered office at Ambala city. The petitioner is the owner in possession of the land measuring 95.431 acres situated within the revenue estate of village Sarsehri/Rampur, Tehsil and District Ambala. The petitioner under Section 3 of the Haryana Development and Regulation of Urban Areas, 1975 (for short 'the Act of 1975') applied for the grant of licence on 21.11.2008, thus for setting up a residential colony over the land measuring 95.431 acres, and, also submitted the prescribed Form LC-1 along with the required documents along with a sum of Rs. 3,35,07,057/- through demand drafts. On 8.12.2008, the respondent No. 4 served a letter upon the petitioner wherebys it was asked to complete the shortcomings, as mentioned in the letter. On 8.1.2009, the petitioner again submitted an application along with Form LC-1, after completing the list of documents, as required by the respondent concerned. Subsequently another letter dated 27.2.2009 was served upon the petitioner to complete the shortcomings i.e. Takseem Intkal as the same became not submitted earlier, besides some other shortcomings were also asked to be overcome by the present petitioner. The petitioner vide its letter dated. 1.6.2009 submitted the requisite documents, and, also clarified that the case 2 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -3- for takseem is pending adjudication before this Court.
4. It is further averred in the instant petition, that vide letter dated 26.5.2009 (Annexure P-7), respondent No. 4 sought a report rather from the Engineer-in-Chief, Irrigation Department-respondent No. 5 appertaining to the vulnerability of the subject lands to flood actions. The contents of the letter (supra) become extracted hereinafter.
"2. M/s M. M. Developers (P) Ltd has applied for grant of Iicence to develop a residential plotted colony on the land measuring 95.431 acres revenue estate of village Sarseri/Rampur, Tehsil & District Ambala. As per development plan 2021-AD of Ambala, the site falls in residential sector 43. A part of site falls in river Tangri, therefore, the comments in respect of ability is required from you. While sending a copy of development plan showing the location of the site applied for grant of Iicence, you are therefore requested to send your comment/report in respect of floodability for the applied land to this office at the earliest, so that further action will be initiated on the case."
5. Subsequently, vide letter dated 27.9.2009 (Annexure P-8), issued by respondent No. 5 to the Superintending Engineer, SYL, W/S Circle, Ambala, a report was sought qua whether the area gets flooded owing to heavy rain, whereupon respondent No. 4 received reply (Annexure P-9) from the department concerned, stating thereins, that the said area has natural drainage to the river and that the area does not get flooded. In response to the letter dated 27.7.2009, the petitioner furnished its undertaking that the untreated sewerage water will not be released in Tangri river. The contents of the letters (supra) become extracted hereinafter.
"Annexure P-8 The subject cited case IS returned with remark, that area should be marked on GTS contour sheet and check up whether the area has natural Drainage to Tangri. Whether the area get flooded due to the 3 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -4- Iocal rain water. If so, state clearly the extent of flooding. Part flood event, especially of the year 2004 flood event be depicted after local enquiry. In case where flood ability is detect up, that should be clearly mentioned alongwith suggested measures etc. A condition should also to put that the developer would not put untreated sewerage to Tangri."
"Annexure P-9 x x x x IV. The Irrigation Department acquired land for the construction of Rampur Sarsheri Bund in village Rampur and Sarsheri. After acquiring of land and announcement of Award by the Land Acquisition Officer, Ambala, the bund was constructed at site and accordingly the same is under the possession of Irrigation Department. In the endorsed reference the Killa No. of the area has not been rnentioned as applied by the developers, so the office of Executive Engineer Water Services Division, Ambala is unable to locate the overlapping. Therefore, this aspect is to be looked after by the Director, Town and Country Planning at the time of grant of license that no Government land is allowed. XI The flood availability report as received from Executive Engineer, Water Services Division, Ambala was further submitted to your office vide this office Ietter No 1631/17W dated 17.7.2009. In reference to this certain observations were received from your office vide letter quoted under reference to which the report was asked from Executive Engineer, Water Services Division, Ambala vide this office letter No 6354/17-W dated 28.7.2009. Executive Engineer, Water Services Division, Ambala has submitted the reply which is reproduced as under:-
The area applied by the developer falls in village Rampur and Sarsheri. The GTS Contour Sheet of these villages is enclosed herewith, the marking of the area on the GTS Sheet is not feasible being variation of the scale of the Shazra and GTS Sheet. Hence a Shazra Plan depicting the area as supplied by the developers is enclosed herewith for ready reference. However the location of site has been marked on the GTS Sheet.
The area has natural drainage to the river and the area do not get flooded as gathered from the Local Panchayat of Village 4 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -5- Rampur and Sarsheri. The report of the village Panchayat of village Rampur and Sarsheri is enclosed herewith for ready reference please. It is further added that the developers have given an undertaking to the effect that there will be no outlet passage and vent of sewerage water towards River Tangri. The undertaking is also enclosed herewith in original for ready reference. It is further suggested that the developer may be advised to take all the precautionary measures for the safely of the colony with respect to floods, Sub Surface Water Level drainage of storm water etc"
6. It is further averred that respondent No. 4, sent a letter (Annexure P-11) to the Engineer-in-Chief, Haryana Irrigation Department, to re-examine the subject matter. Respondent No. 4 also issued letters dated 28.8.2009 and dated 24.11.2009, to the petitioner asking him to submit the required revenue documents, and, to deposit the balance amount of licence fee. The petitioner vide its letter dated 24.11.2009, gave a detailed reply to the letter dated 28.8.2009, and, thereafter the petitioner vide its letter dated 27.11.2009, submitted the required layout plans of the proposed colony.
7. Thereafter the Superintending Engineer, SYL Water Services Circle, Ambala vide letter (Annexure P-16) gave the statement showing the maximum discharge of Tangri river. The contents of the letter (Annexure P-
16) become extracted hereinafter.
"On the above cited subject and reference, it is submitted that the Executive Engineer, Water Services Division, Ambala has inspected the site on dated 25.6.09 and reported that as per site condition, the land in question is situated on the left bank of river creak. As per record, max discharge of 37186 Cs passed in the year 1988. Statement of maximum discharge passed in a particular year as available in the office is enclosed herewith. This is a seasonal river and under normal circumstances water generally flows in the river creak.
8. It is further averred, that vide letter dated 14.12.2009 (Annexure P-17), sent by the petitioner to respondent No. 4, the petitioner submitted that the subject land did not face the scourge of flood in the last 20 years, 5 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -6- and, that there would be no outlet discharge and vent of sewerage waters river Tangri. It is further averred in the instant petition that vide letter dated 28.12.2009 (Annexure P-18), respondent No. 7 asked the petitioner to demarcate the subject lands by raising boundary pillars. On 8.3.2010 respondent No. 5 sent a letter (Annexure P-19) to respondent No. 4 to the effect, that no habitation should be allowed within the marginal bandhs of river Tangri.
9. Vide letter dated 20.5.2010 (Annexure P-20), issued by respondent No. 4 to the petitioner, it was informed, that its licence application for the development of residential plotted colony, rather cannot be processed, as the subject lands are vulnerable to flood action arising from high discharge from river Tangri. The contents of the letter (Annexure P-20) become extracted hereinafter.
"A report has been received from Irrigation Department, Haryana (copy enclosed), vide which very serious objections with reference to proposing any habitation within the existing marginal bunds along the Tangri river has been raised. It has been categorically stated that:
1. The proposed area for development of residential plotted colony was vulnerable to floods during high discharge in the river, and,
2. Any extension of Development Plan inside the left marginal bund, in which, the licenced plotted colony has been proposed by you, would require adequate protection measures for both the bunds with proper consultancy, which would involve huge costs.
It may be noticed that any such measure as per Sr. No. 2 would inflate the EDC rates very disproportionately, making all residential/commercial development activities under the Ambala Development Plan financially unviable.
Under these circumstances, it may be appreciated that since the matter involves security of life of the citizen, it neither 6 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -7- appropriate nor desirable to go beyond the technical advice rendered by the Irrigation Department, Haryana. Your license application thus cant be processed at this stage, till any alternate technically and financially viable solution emerges."
10. Subsequently, the petitioner submitted a detailed representation dated 21.6.2010 to respondent No. 4 to the effect that the area near river Tangri has a large habitation and other commercial activities are also undertaken at the banks of river Tangri.
11. The respondent-State vide notification No. CCP(NCR)/ AMB/FDP/2008/2286 dated 14.8.2008 (Annexure P-26) issued under the provisions of Section 5(7) of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (for short 'the Act of 1963'), notified/published the Final Development Plan-2021 AD for Ambala. Moreover, a Final Development Plan Drawing No. DTP(A) 2883/2008 dated 28.2.2008 (Annexure P-27) was also issued.
12. Since the application (supra) filed by the petitioner for grant of lience was not decided, therefore, the petitioner approached this Court by way of CWP No. 1547 of 2012. During the pendency of the said petition, respondent No. 1 vide notification dated 4.7.2012, issued a Draft Development Plan 2025 AD for Ambala, whereins, the classification of the land belonging to the petitioner was proposed to be changed from the category of 'residential' to 'agricultural'. The petitioner sent its objections dated 25.6.2012 (Annexure P-29) against the above proposed change in the classification of its lands. However, no opportunity of hearing became granted to the petitioner.
13. It is further averred in the instant petition, that without considering the objections filed by the petitioner, the respondent No. 1 vide 7 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -8- the impugned notification dated 6.9.2012 (Annexure P-30) rather notified the Final Development Plan 2025 AD for Ambala along with the restrictions and conditions mentioned thereins. Moreover, along with the said notification, the drawing of Final Development Plan 2025 AD for the controlled areas 1 to 5 under Section 5 (7) of the Act of 1963 bearing DRG No. DTP (A) 2923/2012 dated 3.9.2012 (Annexure P-31) became also notified. Subsequently, the petitioner withdrew the petition (supra) filed before this Court with a liberty to file a fresh one challenging the Final Development Plan 2025.
Submissions on behalf of the learned counsel for the petitioner
14. The learned counsel for the petitioner submits-
(i) That in the Final Development Plan, the land of the petitioner was reclassified as agricultural without conducting any survey or without taking any opinion from the expert concerned.
(ii) That the petitioner has been singled out, as the entire apposite surrounding area is still classified as either residential or industrial area. Moreover, the land along the river concerned, is also classified as residential, as is evident from the apposite drawings borne in Annexure P-31.
(iii) That with IIT Roorkee recommending the development of the colony with a minimum of 185m width of the river from chainage 850 m to 2250 m, therebys the said recommendations are to be borne in mind before passing the espoused mandamus upon the respondents concerned.
(iv) That the petitioner had submitted the application (supra) in the prescribed form along with all the requisite documents and therewith became appended a demand draft of Rs. 3,35,07,757/-, which has never been 8 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -9- refunded to it by the respondents, and, the non refund of the amount (supra) displays the acquiescence(s) of the respondents to the espousal made in the application, besides he submits that the impugned notification is malafidely drawn.
15. Therefore, it is prayed that the impugned notification (Annexure P-30) and the impugned drawing (Annexure P-31) be quashed and set aside, and, that the respondents concerned be directed to consider the application of the petitioner on the same terms and conditions, as prescribed at the time of submission of the said application.
Submissions on behalf of the learned counsel for the respondents-State
16. The learned State counsel submits, that though the petitioner has submitted the application dated 21.11.2008 for the grant of licence to him. However, after the receipt of reports from the field offices, it was observed that since the site of the petitioner is located on the riverside of the left marginal bandh of river Tangri i.e. Rampur/Sarseri bandh. Therefore, the Engineer-in-Chief, Irrigation Department, Haryana was requested to give his report with respect to the floodability of the applied for land. Thereupon, the Engineer-in-Chief, Irrigation Department after taking the field report has pointed out that the proposed area for the development of residential plotted colony rather was vulnerable to floods during high discharge in the river, and, that any kind of construction within the bandh should be avoided.
17. Subsequently, on a fresh representation filed by the petitioner, the matter was again referred to the Irrigation Department, and, the said department vide office memo No. 1325/4-BWS dated 8.3.2010, again pointed out, that the proposed land for development of a residential colony lies on the riverside of the left marginal bandh on river Tangri. Moreover, it 9 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -10- has also been suggested thereins, that the development plan of Sector-43, Ambala, was intervening the marginal bandhs, and, that no habitation should be allowed within the marginal bandhs. The learned State counsel further submits, that the security of the life of the citizens and also to their properties but cannot be put to risk by granting licence to the petitioner for development of a residential colony on the proposed land, and, by ignoring the technical advice of the Irrigation Department. It is further contended by the learned State counsel, that the State Level Committee in its meeting held on 23.5.2002 under the Chairmanship of the Hon'ble Chief Minister, Haryana, had also taken a decision that considering the fact, that the area around bandh in Sector-43 is prone to floods from river Tangri. Therefore the said area has been exclusively reserved for agricultural operations with use code of 820, where no habitation will be allowed. Moreover, the report of the survey conducted by the Central Water Commission also shows that the land in question is lying between the marginal bandhs.
Submissions on behalf of the learned counsel for respondent No. 8
18. The learned counsel for respondent No. 8 submits, that in the instant writ petition, no substantive relief has been claimed against respondent No.8 -Municipal Corporation, Ambala, and only pursuant to the notification dated 17.3.2010 issued under Section 3(2) of the Haryana Municipal Corporation Act, 1994, wherebys the land in question has been subsequently brought within the Municipal Limits, rather thereupons, the Municipal Corporation, Ambala has been arrayed as a respondent in the instant petition. He further submits, that since the petitioner has not applied for grant of any licence with respondent No. 8, therebys the instant petition is misconceived, and, is required to be dismissed as such. Moreover, since 10 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -11- the Draft Development Plan-2025 AD Ambala became published in the Haryana Official Gazette vide notification dated 4.7.2012. Therefore, sanctity is to be assigned to the supra.
Inferences of this Court
19. Before this Court proceeds to draw any inference, thus either accepting or rejecting the supra contentions respectively addressed before by this Court by the learned counsels concerned, it is appropriate to refer to the orders passed by this Court on 8.7.2014, and, on 9.5.2022, wherebys this Court had ordered for the conducting(s) of survey(s) of the site concerned, by the departments concerned, and, whereupons the apposite reports became submitted.
20. The order (supra) passed by this Court on 8.7.2014 becomes extracted hereinafter.
"In deference to the order dated 25.04.2014, the Director General, Department of Town and Country Planning, Haryana has filed an affidavit dated 08.07.2014 which is taken on record. In the said affidavit, he has given a proposition that the petitioner may get the study conducted in respect of the technical-cum- financial feasibility jointly by IIT Roorkee and Irrigation Department, Haryana for construction of the proposed bundh in order to prevent any flooding.
Let the petitioner, if there is no serious impediment, get the needful done and produce the joint report by the IIT Roorkee and Irrigation Department, Haryana before the next date of hearing.
List on 16.09.2014."
21. Pursuant to the said order, the IIT Roorkee, submitted its report dated 18.6.2015. The relevant paragraphs of the report (supra) become extracted hereinafter, and, are also underlined, as thereins are the hereinafter ameliorative recommendations, thus based upon an intensive scientific study 11 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -12- being made of river actions, beides therebys there appears to be reconciliations inter se the safety concerns of the inhabitants who would become housed in the dwelling units to be raised over the subject lands, thus with the right of property of the present petitioner to utilize the subject property.
"17. Conclusions and Recommendations Based on the study carried out herein, the following are concluded/ recommended:
a) The return period for the flood in the Tangri river for the development of the colony has been taken 100 years as per guidelines of IS 12094:2000. The 100 years flood discharges estimated by Gumbel's Extreme Value Distribution method and Log-
Pearson Type III Distribution method are respectively 1372 and 1298 m³/s, which are close to 1400 m³/s i.e., design discharge of the road bridge. A conservative value of design discharge equal to 1400 m³/s has been considered for studying the technical feasibility of the residential plotted colony.
b) Analysis of past images of Tangri river reveal that the river does not show any trend of shifting near the land to be developed, thus no river training works is required at this site for training the river.
c) With the consideration of Lacey's perimeter and existing section of the Tangri river, it is proposed to keep a minimum width of the Tangri river equal to 185 m from chainage 850 m to 2250 m noted that the land is to be developed along left side of the river in this reach.
d) Hydrodynamic modeling of the river has been carried out for its existing condition and also with development of the land to compute the flow parameters and morphological changes in the river.
(e) The simulated water surface profile with colony is higher than the water surface profile without colony from chainage 1250 m to 4000 m. However, it is still below the top level of the Babyal bund and higher than top level of the Rampur Sirsheri bund. Be noted that even in the existing condition of the Tangri river, the simulated 12 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -13- water level is higher than the Rampur Sirsheri bund
(f) Development of colony shall induce a maximum afflux of the order of 2.5 ft (0.76 m) in the upstream of the proposed colony between chaingage 1250 to 4000 m. No noticeable changes in the bed levels of river shall occur due to development of the plotted colony. The maximum aggradation or degradation would be of the order of 20 cm in some reaches.
(g) Simulation of flow was also carried out with and without the planned colony for 25 years flood discharge of 1000 m³/s. The simulated water level with proposed colony is higher than without colony from Chainage 1250 m to Chainage 4000 m, however, it is below the top levels of the bunds. The maximum induced afflux would be of the order of 1.75 ft at chainage 2500 m. Changes in the bed level is negligible.
(h) It may be concluded that for flood of 25 years return period, there is no appreciable changes in the water level and morphological parameters of the river. The top levels of both the bunds are adequate to contain the flood between the bunds. Thus it is unlikely that the planned colony would bring remarkable changes in the river morphology and highest flood level.
(i) To ensure a minimum free board over the HFL corresponding to 100 year return period, it is suggested to raise Rampur Sirsheri bund height to accomplish the desired free board even in the existing condition. No additional raising of this bund is required under development of the planned colony. No raising of the Babyal bund is required even under the development of the planned colony.
(j) Development of the planned plotted colony would not affect the flow scenario at the bridges thereby does not affect the safety of the bridge.
(k) Design of the boundary wall is carried out with the consideration of 4.4 m scour the bed level. To provide additional cushion to the safety of the wall a launching apron of width 3000 mm and thickness 700 m shall be provided along the wall towards the river side. Boulders of size 300 mm and above shall be used in the apron in form of wire crates.
(l) The boundary line of the planned colony from Chainage 850 m to 2250 m is marked in the attached topo sheet.
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(m) Any sort of development in 185 m width of the river that will cause obstruction to the flow is strictly prohibited.
At outset, it is concluded that boundary wall of the planned colony from Chainage 850 m to 2250 m shall be aligned such that a minimum width of the river of 185 m be ensured. Provision of this width does not bring the noticeable changes in the morphology of the river. Induced afflux form chainage 1500 to 4000 m shall be contained between the bunds thus raising of level of bunds due to planned colony is not needed. The safety of the road bridge shall not be affected due to development of the colony. There would not be any backwater effect in any nala and also upstream of Chainage 4000 m in the Tangri river. In the view of the above, development of colony with a minimum 185 m width of the river from Chainage 850 m to 2250 m is recommended."
22. The relevant paragraphs of the order passed by this Court subsequently on 9.5.2022 also become extracted hereinafter.
"x x x x Pursuant thereto, a survey is admitted by both sides to have been conducted by the IIT, Roorkee, with learned senior counsel appearing for the petitioner stating that the said report is actually "in favour of the petitioner", to the extent that if an earthen bandh is constructed, the problem of water logging (due to which the change of land user from residential to agriculture has been recommended), would not arise.
However, thereafter as recorded in the order dated 27.02.2020, the respondent-State had raised an objection to the aforesaid report by the IIT, Roorkee, as the State's Irrigation Department had not been involved in the survey conducted by the Institute. Mr. Mittal, learned counsel appearing for the respondent-State, submits that in fact a status report (notarized on 04.07.2019) has been submitted to this court, giving therein the details of the objections raised by the Irrigation Department of the respondent-State qua the report of the IIT, Roorkee.
Consequently, this application has been filed by the 14 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -15- petitioner, seeking a direction from this court that a fresh study be conducted by the IIT, Roorkee, in association with the respondent-State, to determine the technical-cum-financial feasibility for the construction of the aforesaid bandh.
x x x x Mr. Mittal further submits that the area as is proposed to be converted to agricultural land, actually falls in the river bed of the river Tangri and consequently, the State has serious objections to the aforesaid report of the IIT, Roorkee, and in fact an expert body dealing with river waters should be associated with the survey to be conducted, with his suggestion (on instructions) being that it should be the Central Water Commission (CWC).
Learned senior counsel appearing for the petitioner submits that there are colonies constructed by the Haryana Shehri Vikas Pradhikaran (HSVP) and HSIIDC, with land belonging to the Municipal Corporation, Ambala, also falling within the same area. However, he very fairly submits that as regards conducting of a survey by associating both, the representatives of the petitioner and the Irrigation Department of the respondent-State, CWC and the IIT, Roorkee, they may conduct the survey.
That being so, the Central Water Commission is ordered to be impleaded as respondent No.9 in the accompanying petition with the Registry directed to carry out the necessary correction in the memo of parties by determining from the learned Additional Solicitor General of India as to through whom the said Commission is to be actually impleaded.
Notice be issued to the newly added respondent returnable on 29.09.2022.
In the meantime, upon an application being made by the respondent-State or the petitioner, the said Commission, along with the IIT, Roorkee, would conduct a survey of the area on a commonly acceptable date by also obviously associating representatives the petitioner and of the Irrigation Department of the respondent-State.
15 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -16- A report to that effect be submitted to this court before the next date of hearing.
Mr. Mittal has brought to our notice that in compliance of the direction issued on 27.02.2020 (the matter never having come up for active hearing till in fact the day before yesterday thereafter), the Chief Engineer, Irrigation, Bhakhra Water Services, Haryana, is present in court. His presence on the next date of hearing is dispensed with till further orders."
23. Pursuant to the said order, the Central Water Commission (for short 'the CWC') submitted a joint survey report. The relevant paragraphs of the said report become extracted hereinafter, and, the same are also underlined.
"4. Conclusions
1. Since IS Code No. 12094:2000 is for the construction of new embankments, therefore, it mentions that the alignment of the new embankments should be made in such a way that the important towns and properties are left outside the embankments. However, in the present scenario, the embankments already stand constructed at site leaving no scope to grant permission to construct colony within the already standing embankments, standing since 1982.
2. As per the Guidelines for River Centric Urban Planning, Town and Country Planning Organization, issued by Ministry of Housing and Urban Affairs, Govt. of India, "Prohibited Activities Zone" extends from the river bank to the outer edge of the floodplain and beyond. This limit will be extended up to 500 meters from the highest flood level in the past 50 years. These zones are the area which are subjected to frequent flooding and are most vulnerable to adverse impacts of human activities. These guidelines also categorically state that "In case of the presence of embankments in the floodplain area, then this zone will extend from the river bank to the present outermost embankment and further a 100 m buffer is provided outside that embankment". In view of above, construction of a township within the embankments may not be permitted.
3. It is evident that as per Chapter 13: Urban River Zonal 16 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -17- Regulations; "Lateral Zonation of River Banks" of Guidelines for River Centric Urban Planning, Town and Country Planning Organization, Ministry of Housing and Urban Affairs, Govt. of India discussed in Observations above, the area under consideration is an "Active Flood Plain". The same guidelines also define the structures that can be constructed in an Active Flood Plain and categorically prohibits construction of housing likely to have occupants who may not be sufficiently mobile to avoid injury or death during a flood. Although some structures are permissible under special circumstances by the competent authority, the ground coverage for such use shall not exceed 5% of the total area with required parking facility and shall not be more than G+1 floor in any case. In view of above, construction of a township in an Active Flood Plain may not be permitted.
4. The area in upstream of the said river would come under grave danger if the proposed colony is allowed to come up between the two embankments of the River Tangri as a bottleneck would be created and water will surely head up in the upstream reach.
5. Keeping all the circumstances and factors in picture, it was decided to strictly stick to the guidelines laid in IS Code No. 12094:2000 (Guidelines for Planning and Design of Embankments) and the Guidelines for River Centric Urban Planning, Town and Country Planning Organization, issued by Ministry of Housing and Urban Affairs, Govt. of India and keep the designed width of the River as 3 times lacey's wetted parameter and it is recommended that no colony should be allowed to come up between the already constructed embankments which were constructed in 1982, way before the MM Developers Private Limited has purchased the land. In past, many cases have come across where floods caused heavy destruction due to mis-management of Rivers and natural channels. Additionally, if this colony is allowed to come up between the embankments, other land owners would also try to apply for the grant of licence and River will be vanished eventually."
Reasons for accepting the recommendations of Mr. Z. Ahmed
24. The petitioner's application for grant of licence wherebys, he would become endowed with a right to raise construction over the subject land 17 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -18- was filed in the year 2008. However, for a prolonged duration of time, it underwent deliberations, which became engaged into by the various authorities. The said engaged into deliberations, appertain to whether there is imminent floodability of subject lands on account of swellings of the adjunct thereto waters of river Tangri. The said swellings of the waters of river Tangri prima facie is not an incessant phenomena, but is only a seasonal event, and, nor is recurrent as the said swellings take place only on account of heavy rains during the monsoonal season.
25. However, this Court is yet required to be balancing the right of the present petitioner to subject the present land to lawful user, thus along with the safety concerns of the inhabitants of the colony, which would be raised on the said land.
26. Though, the respondents concerned, in the impugned plan, though proceeded to declare the subject land to be unfit for the raisings thereovers of a colony, despite the uncontroverted fact that at the stage contemporaneous to the present petitioner filing the apposite application, there already existed a thickly inhabited locality(ies) adjunct to river Tangri. The relevance of the said fact would be alluded hereinafter.
27. Now prima facie at the stage contemporaneous to the impugned notification becoming passed by the respondent concerned, wherebys the subject land was declared to be unamenable or unfit for the aspired purpose, it but appears, that no scientific survey became conducted at the instance of the respondent concerned, to ensure that thereby become reconciled the rights of the present petitioner to utilize its property vis-a-vis the rights of the inhabitants of the colony, thus to ensure that neither their lives nor their properties rather come under the scrouge of any imminent threat, thus on account of swellings of waters of river Tangri, and, that too only during the monsoonal season.
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28. Tritely also, the fact that the said exercisings were but most direly required to be undertaken at the stage contemporaneous to the drawings of the impugned plan, and, yet their not being undertaken then, thus becomes underpinned from the fact, that only pursuant to the orders (supra) rendered by this Court, that the hereinabove reports were submitted. The effect of the above omission but naturally, is that, prima facie the impugned notifications become drawn in a most slipshod, and, perfunctory manner, and/or they become drawn without becoming squarely bedrocked upon the best scientific data, nor also they become bedrocked upon the principles relating to the right of the present petitioner to utilize the said property, but also yet the said rights becoming adequately balanced vis-a-vis the safety concerns of the residents of the colony, which is proposed to be established over the subject lands.
29. All the effects of the above but thorough lack of application of mind are that therebys, prima facie this Court becomes constrained to conclude, that therebys the impugned notifications are arbitrarily drawn, besides are an endeavour on the part of the respondents to somehow or the other suffocate the right of the present petitioner to utilize the subject lands.
30. Importantly, the engagings into of the said scientific study thus along with the apposite ameliorative recommendations, to curtail the ill-effects of swellings of waters of river Tangri during monsoonal season or during heavy rainfall, vis-a-vis, both the lives of the inhabitants of the colony, besides to the properties over which they acquire rights, though however, did not become undertaken at the stage of issuance of notification, yet reiteratedly the said engagements were made only through the supra orders becoming rendered by this Court.
31. Initially, Prof. Z. Ahmed, Department of Civil Engineering, IIT, Roorkee, after making a research with respect to the floodability of the subject 19 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -20- land, thus in his report Annexure R-2, rather has made certain ameliorative recommendations. The said ameliorative recommendations are underlined hereinabove. To the contra, yet a report, thus disconcurring with the said opinion earlier formed by Prof. Z.Ahmed, became authored by the CWC, the relevant contents whereof are extracted hereinabove.
32. Both the reports are made by experts, and, yet there is no unanimity of opinion amongst them. Consequently, the lack of unanimity of opinion amongst the experts concerned, thus enjoins a duty upon this Court, to with its conscience judicious objectivity, thus reconcile the said conflicting reports.
33. Mr. Z. Ahmed, who authored report (Annexure R-2), has thereins made certain ameliorative recommendations wherebys he has reconciled the safety concerns of all inhabitants concerned, vis-a-vis the rights of the present petitioner to utilize the subject lands.
34. However, the report (Annexure R-2) of Mr. Z. Ahmed was succeeded by a joint survey conducted by a survey team comprising of -
1. Mr. Amit Kumar Raghuwanshi- SE, Irrigation Department, Haryana
2. Sh Ashok Kumar Jeph- Director, IBO Chandigarh, CWC
3. Sh. Krishan Kumar- Executive Engineer, W.S. Division, Ambala
4. Prof. Z. Ahmed- IIT, Roorkee
5. Sh. Jagdish- Representative of MM Developers Pvt. Ltd.
35. Moreover, apart from the members of the survey team (supra), the following members were also present at the time of joint survey.
1. Mr. Samarth Agarwal- Deputy Director, CWC, Chandigarh
2. Mr. Ranveer Singh Executive Engineer, SYL, WS Division, Ambala.
3. Mr. Maninder Singh SDO, South, Sub Division, 20 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -21- Ambala
4. Mr. Rajat Kumar JE
36. The majority of members of the survey team are the employees of the State Government, therebys prima facie it appears that they were proclived towards toeing the point of view taken by the State Level Committee, in its meeting held on 23.5.2002, under the Chairmanship of the Hon'ble Chief Minister, Haryana, wherebys a decision was taken that since the area around bandh in Sector-43 is prone to floods from river Tangri. Therefore, the said area becoming exclusively reserved for agricultural operations with use code of 820, and, that no habitation being permitted thereovers. If so, the said report cannot be termed to be an objective report as such.
37. It is plainly discernible on a reading of the said joint report (Annexure R-8), that there was no consensus amongst all the concerned, with respect to the amenability qua granting of the espoused licence to the petitioner vis-a-vis the subject lands. As such, objections were invited from Mr. Z. Ahmed, IIT, Roorkee and, from the representative of the present petitioner. The objections (Annexure-7), as made theretos by Mr. Z. Ahmed are ad verbatim extracted hereinafter.
"x x x That IS 12094:2000 Guidelines for planning and design of river embankments (Levees) speaks about the spacing between the embankments in jacketed reach of river, however, nothing has been mentioned about the use of land in the flood prone areas. Thus, the clause 3.3.1.2 of 15 12094:2000 wherein it is mentioned that spacing between the embankments should not be less than three times of the Lacey's wetted perimeter should not be applied in the present case and other regulation and enforcement documents should be examined and decision be taken accordingly. Regulation of Land Use in Flood Prone areas is mentioned in the "National Disaster Management Guidelines, Management of Floods, January 2008, National Disaster Management Authority (NDMA), Govt. of India". Under the Chapter 6 Regulation and Enforcement and clause 6.1.3 Regulation of Land Use in Flood Prone Areas of this document of NDMA, it is mentioned that 21 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -22- "There can be different considerations for such regulations. For example, the area likely to be affected by floods up to a 10-year frequency should be kept reserved only for gardens, parks, playgrounds, etc. Residential or public buildings, or any commercial buildings, industries, and public utilities should be prohibited in this zone. In area liable to flooding in a 25-year frequency flood, residential buildings could be permitted with certain stipulation of construction on stilts (columns), minimum plinth levels, prohibition for construction of basements and minimum levels of approach roads, etc. In urban areas there should be double storeyed buildings. Ground floors could be utilised for schools and other non-residential purposes."
Regulation of Land Use in Flood Prone areas is also mentioned in the "Urban and Regional Development Plans Formulation and Implementation (URDPFI) Guidelines, Vol. 1, January 2015, Government of India Ministry of Urban Development". The relevant clause 6.5.3. Guidelines for Buffer Zones of this document is reproduced below:
Natural hazard zones such * The basic concept of fined plain liver fleed plains and water zoning is to regulate land use in the bodies Including wetlands flood plains to restrict the damage caused by floods. Flood plain can be identified bated on last 50 or 100 year flooded area of water bodies or river. There can be different considerations for regulations. For example, the area likely to be affected by floods up to a 10-year frequency should be kept reserved only for gardens, parks, playgrounds, etc. Residential or public buildings, or any commercial buildings, industries, and public utilities should be prohibited in this zone.
* In area liable to flooding in a 25- year frequency flood, residential buildings could be permitted with certain stipulation of construction on stilts (columns) minimum plinth levels, prohibition for construction of basements and minimum levels of approach roads, etc. In urban areas there should be double storeyed buildings. Ground floors could be utilised for schools and other non-
residential purposes To my knowledge neither the Haryana State Government has
22 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -23- carried out any flood zoning nor notified in the Official Gazette the Flood Plain areas and either prohibit or restrict the use of land therein.
In the absence of any Regulations and Enforcement of the State Government regarding Land Use in Flood Prone areas, it is recommended that Regulations and Enforcement of the NDMA and URDPFI shall be adhered. Accordingly, it is recommended that Flood zoning of the Tangri river in the reach of interest for 10 year and 25 year flood be carried out and decision of use of land in the flood plain in the present case be taken adhering the Regulations and Enforcement of the NDMA and URDPFI."
38. The representative of the petitioner concurred with the objections of Mr. Z. Ahmed as becomes enclosed in Annexure-7.
39. Since this Court has made an incisive opinion, that since a majority of the members of the survey team, were employees of the State Irrigation Department, wherebys they were proclived to toe the line of the State Government, whereupons the majority opinion is a jaundiced opinion. However, irrespective of the above, this Court is required to be determining whether the majority opinion taken by the CWC, thus is well anchored upon any scientific data, and/or whether the objections thereto raised by Mr. Z. Ahmed, to which the representative of the present petitioner concurred, are the ones which are to be relied upon on the ground, that they become objectively anchored upon the best scientific data.
40. Mr. Z. Ahmed in Annexure-7, has alluded to the National Diasater Management Guidelines, Management of Floods, January 2008, and, the National Disaster Management Authority (NDMA), Government of India, and, has subsequently spoken, about the different considerations being borne in mind for bringing on the rule book certain regulations, and, also applying them onto the flood affected areas concerned. He has thereins mentioned that in the event of 25 years flood frequency, residential buildings could be permitted for being raised but with certain stipulation of constructions on stilts (columns), 23 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -24- minimum plinth levels, prohibition for construction of basements and minimum levels of approach roads etc. Moreover, he has also detailed thereins, that in urban areas there should be double storeyed buildings, and, that the ground floors could be utilized for schools and other non-residential purposes. Furthermore, he has also spoken that the regulations of land use in flood prone areas, are also mentioned in the Urban and Regional Development Plans Formulation and Implementation (URDPFI) Guidelines, Vol. 1, January 2015, Government of India, Ministry of Urban Development. He has also in Annexure-7, thus extracted the relevant clause No. 6.5.3 of Guidelines for Buffer Zones, and, has ultimately concluded, that since neither the Government of Haryana, thus has carried out any flood zoning, nor has published in the official gazette the flood plain areas, nor there is any prohibition or restriction for the use of the lands therein.
41. In sequel, he has concluded that for wants of the publication of the supra, thus in the official gazette, therebys the regulations and enforcement of the NDMA and URDPFI should be adhered to. Consequently, he recommended that the flood zoning of river Tangri in the reach of interest for 10 years and 25 years flood be carried out, and, that a decision for use of land in the flood plan in the present case be taken after adhereing to the regulations and enforcement of the NDMA and URDPFI.
42. The said opinion of Mr. Z. Zhmed is in alignment with his previous report (Annexure R-2), whereins, after his making a detailed survey of the amenability of swellings of river Tangri, thus to an immense span ranging from 25 years frequency, inasmuch as, also his studying the flood pattern of river Tangri, thus since the past 25 years, rather has concluded that there was no excessive swellings in the waters of river Tangri, to the extent, that there was no appreciable changes in the water level of the said river, nor therebys 24 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -25- there would be any excessive inundation of areas adjunct to river Tangri. Therefore, the report of Mr. Z. Ahmed is in terms of the regulations and guidelines, which he has spoken in Annexure-7, and, which were required to be also adhered to by the majority of the members of the joint survey team (supra). However, yet in the majority opinion of the CWC, there is no mentioning of the guidelines, which are but the governing regimen, as detailed by Mr. Z. Ahmed in Annexure-7, whereas, reiteratedly the said speakings do become the objective scientific base, thus for either completely restricting or partially restricting the amenability of the user of the subject lands rather for the espoused purpose. Moreover, significantly for the lack of unanimity amongst the members of the joint survey team, therebys, there was naturally unavailability of the precise scientific data, rather with them, thus for theirs making conclusions, as becomes borne thereins.
43. Additionally, the conclusions formed by CWC are evidently banked upon the guidelines for River Centric Urban Planning, Town and Country Planning Organization, Ministry of Housing and Urban Affairs, Govt. of India, whereins, prohibited activities have been declared to be extended from the river bank to the outer edge of the floodplain and beyond, and, the said limit has been declared to be extended upto 500 meters from the highest flood level in the past 50 years. Moreover, thereins it has been stated that the said prohibited zones are the areas which are subjected to frequent flooding and are most vulnerable to adverse impacts of human activities.
44. However, the said conclusions, do not become well grooved, in consonant therewith imperative empirical data becoming collected from the subject lands, thus ranging over a period atleast extending upto 25 years, wherebys the application of the supra to the subject lands but is purely surmises, besides is whimsical. In sequel, when Mr. Z. Ahmed has made 25 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -26- ameliorative recommendations, and, when thereins he has referred to the National Disaster Management Guidelines, Management of Floods, January 2008, and, also referred to the National Disaster Management Authority (NDMA), Government of India, besides when he had made an empirical study of the non recurrent phenomena qua the swellings of the waters of river Rangri, thus ranging upto a period of 25 years, and, which led him to ultimately conclude, that in the said phase, there was no recurrent excessive swellings in the rivers, wherebys there would be a recurrent escalated level of inundation of the habitation, which already exists adjunct to river Tangri. Resultantly therebys, when the said report but becomes based on an empirical research, as such, the ameliorative recommendations, as made thereins do carry some sanctity. Resultantly therebys, his report is to be assigned a superceding sanctity, vis-a-vis the joint survey report, which otherwise is lacking in unanimity, besides as stated (supra), is not based upon any empirical data, rather is anchored upon surmisal application of the guidelines spelt thereins.
45. As such, this Court is leaned to adopt the view taken by Mr. Z. Ahmed, the same becoming well anchored upon the National Disaster Management Guidelines, Management of Floods, January 2008, and, also becoming well anchored upon the National Disaster Management Authority (NDMA), Government of India, both whereof obviously, rather are the normative edicts but based on scientific temper, wherebys become balanced the safety concerns of the citizens, and, the rights of the petitioner to utilize its property.
46. What further augments the above inference becomes displayed thus by the photographs (Annexures R-9 and R-10) appended with the report (Annexure R-8), whereins becomes carried pictures suggestive, that a thickly inhabited locality, thus occurring adjunct to river Tangri, and, which also has 26 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -27- been displayed thereins to become heavily inundated. As such, therebys when on both the banks of river Tangri, there were existing but at the time of filing of present petitioner's application, thus heavily inhabited localities, and, also when it appears that subsequently also thus there existing a thickly inhabited colony(ies), and, which are also vulnerable to inundation on account of swelling of waters of river Tangri.
47. Consequently, the State of Haryana has been ex facie apathetic to the safety concerns of the residents of the said colonies. A well redressal to the grievances of the inhabitants of the colonies, who do imminently suffer threats from flood actions, would ensue only if certain disaster management plans, become prepared, and, they also become funded, whereafter they become activated on the ground. However, none of the above required to be embarked into redressal mechanisms ever became undertaken by the State. Contrarily, it appears, that the present petitioner's application, which became filed in the year 2008 but underwent prolonged bureaucratic processing, and, that too, without in contemporaneity to the passing of the impugned annexure, rather any apposite scientific study becoming made, whereas, the said makings of a scientific study was a dire precursor, thus for the making of the impugned annexure.
48. Moreover, when this Court for reasons (supra) has concurred with the objections (Annexure-7) raised by Mr. Z. Ahmed, to the majority opinion of the CWC, whose members are drawn from the employees of the State of Haryana, wherebys this Court has taken an opinion, that they were proclived to toe the line of the executive. Resultantly therebys, there has been a gross abandonment of duty on the part of the State, thus to ensure that within the realm of the disaster management plans, rather the respondents engaging themsleves in reserving funds, for thus preempting the incidences of 27 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -28- inundation, which are discernible to even occur on a thickly inhabited locality adjunct to river Tangri, and, when on the opposite thereto banks of river Tangri, thus the subject land also exists. Therefore obviously, there appears to be no momentum in the mindset of the bureaucracy of the State of Haryana either to draw a pioneering and well engineered disaster management plan or to ensure adequate fundings thereofs, so that therebys becomes preempted the ill effects of inundations qua a thickly inhabited locality, which occurs on one side of the bank of river Tangri, besides also to therebys ensure that the subject lands which are adjunct to river Tangri, and, are on the opposite banks of the said heavily inhabited locality, thus are also saved from any arbitrary executive action, wherebys they become preempted through the drawings of the impugned notification, from thus theirs becoming utilized for the subject purpose.
49. The respondent State is a welfare state, wherebys hence within the ambit of Article 21 of the Constitution of India, it becomes encumbered with a constitutional duty rather to ensure the protection of the lives and properties of its citizens.
50. The waters of river Tangri can be stated to be owned by the State of Haryana. If so, the avoidance of swelling of its waters, and, the consequent ill effects thereof onto the lands, which occur on its banks, but is also the onerous duty of the State of Haryana.
51. If the said duty had been rigorously performed through proactive preparations of disaster management plans, and, through adequate financial support thereto becoming lent, besides on the relevant effective executory works becoming done at the sites, therebys there would have not ensued any threat to the residents of the thickly inhabited locality, which occurs on the banks of river Tangri, nor therebys there would be any perceptive threat to the 28 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -29- colony which is proposed to be created by the present petitioner over the subject lands. In sequel, for the evident lack of performance of the said constitutional duty, thus the cascading effect thereof cannot be mounted upon the present petitioner.
52. Therefore, since the expanse of the constitutional guarantee of right to life, as enshrined in Article 21 of the Constitution of India, is to be extended, even to the right of user of those properties, which occur on the banks of the rivers concerned, irrespective of amenability of inundation thereofs, on account of swellings of the rivers concerned. Resultantly the benefits qua the extensions of said expanse of the constitutional guarantee of right to life, thus would naturally ensue rather to effectively curtail the ill effects of natural catastrophe(s). The said apposite ill effects would become decimated, thus through active creations of disaster management plans, besides upon expeditious execution thereofs, but at the instance of the State Government concerned, and, may be to some extent, upon contributions being made by the inhabitants concerned, through some reasonable cesses, being imposed, upon the owners, whose lands are existing on either side of the rivers concerned. The respondent concerned, has also remained unmindful, to all the above, besides has even contested the ameliorative proposals, as made in the report prepared by Mr. Z. Ahmed, with whom Mr. J.K.Sangal has concurred, and, that too, despite the said opinion being based on an empirical study, and, whereons scientific principles became applied, thus covering the aspect of disaster management.
53. Now, in the instant case, the subject lands are on the banks of river Tangri, and, the incidences of flooding thereofs rather is not recurrent but is seasonal. Therefore, the calamitous effect of ill river actions cannot be equated with ill effects as becomes generated from ill oceanic actions/sea actions, vis-a-
29 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -30- vis those lands which are adjunct to oceans or seas, and, wheretos, thus the apposite coastal regulations are to be rigorously applied. Significantly when the disaster mitigation schemes but cannot contain the escalated calamitous effect arising from oceanic action or sea action, as would ensue from the excessiveness of unmanageable turbulence in seas and oceans. However, yet in the instant case, the respondents have made an untenable equation between non-recurrent ill river actions, with almost recurrent ill action of seas, thus adjunct whereto some real estate projects, may be legitimately prohibited, as therebys there would be a constant recurrent threat to the properties, and, personal safety(ies) of the inhabitants concerned. The inter se parity has led to the present ill situation, despite the present petitioner becoming entitled to use its property, yet its right qua user of the said property, rather becoming baulked, through no disaster management plan being prepared, nor any budgeting provisions becoming made in respect thereof, nor the said assigned budgetary sanctions becoming forthwith effectively executed. Moreover, neither contributory demands have been made through cesses being imposed upon the inhabitants concerned, whose abodes exist on either of the banks of river Tangri. The said lack of farsightedness, and, negation of the rights of owners whose lands exist on either side of the river Tangri, has resulted in denial of right to property to all concerned, but with some reasonable restrictions only to the extent, besides in terms of what Mr. Z. Ahmed has stated (a) inasmuch as the boundary wall, of the planned colony from Chainage 850 m to 2250 m shall be so aligned that a minimum width of the river of 185 m be ensured.
(b) Provision of this width yet does not bring the noticeable changes in the morphology of the river. (c) Induced afflux form chainage 1500 to 4000 m shall be contained between the bandhs thus raising of level of bundhs due to 30 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -31- planned colony is not needed. (d) The safety of the road bridge shall be ensured to be not affected owing to development of the colony. (e) There would not be any backwater effect in any nala and also upstream of Chainage 4000 m in the Tangri river, through such mitigations plans being drawn, and, theirs being funded, besides theirs also being effectively made functional on the ground.
54. Additionally also, the respondents could take cue from the existence of Dykes in Netherlands, wherebys the ever recurrent threat of inundations to the dyke sites, have been ensured to be ebbed. Moreover, when therebys the right to property has been ensured to become enlivened. Resultantly, when the ameliorative recommendations of Mr. Z.Ahmed, thus become based on scientific recommendations, besides when they do reconcile the right to property of the present petitioner hence with the safety concerns of the inhabitants concerned. Therefore, this Court is of the further profound view that the impugned notifications are required to be quashed and set aside.
55. Be that as it may, this Court is also under a constitutional duty to ensure the safety concerns of all the concerned, thereupon the hereinafter mandamus' is passed upon the respondents concerned-
(a) The State of Haryana shall strictly adhere to the narrative(s) carried in Annexure R-2.
(b) A team of experts becoming deployed to prepare a scientific disaster management plan, thus for the benefit of all the inhabitants of the thickly inhabited localities, which exist on the banks of all the rivers flowing within the State of Haryana,
(c) To ensure adequate fundings thereof, 31 of 33 ::: Downloaded on - 14-02-2025 05:27:06 ::: Neutral Citation No:=2025:PHHC:021129-DB CWP No. 1101 of 2013 (O&M) -32-
(d) To ensure that structural designs are so prepared, so that therebys the ill consequences of natural disasters, may become decimated,
(e) The State may proceed to impose reasonable cesses upon the residents concerned, so that therebys some corpus of funds, thus is created to construct concrete bandhs, so as to decimate, the ill consequences of inundations taking place, on account of swelling of all rivers, which flow within the State of Haryana.
(f) That from the upstreams of the rivers, where there is no population, thus diversions becoming created, so that thereafters there is a reduction in the volume of water in the rivers, which flow in the State of Haryana, wherebys but naturally there would ensue the required balancings inter se the safety concerns of the inhabitants vis-a-vis the right of the developers concerned, whose properties exist on the banks of the rivers concerned, and, qua utilization whereofs they have a statutory right.
56. All the above be ensured to be done within two months from today, or before the commencement of the ensuing monsoonal season. The funds in the said regard be sourced from the State schemes or from the apposite Central schemes.
Final order
57. For all the above stated reasons, this Court finds merit in the instant petition, and, is constrained to allow it. Consequently, the instant petition is allowed. The impugned annexures are quashed and set aside.
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58. The respondents are directed to after imposing such conditions, as deemed necessary for ensuring the safety concerns of the inhabitants of the colony but strictly in terms of the recommendations made by Mr. Z. Ahmed in Annexure R-2, and, in Annexure-7, besides in terms of supra stated directions, proceed to within one month from today, grant the espoused licence to the present petitioner. Moreover, the respondents are also directed to ensure that the lives of all the inhabitants, whose colonies are presently existing on the banks of the rivers flowing throughout the State of Haryana, are ensured to be protected through forthwith adoptions being made vis-a-vis the ameliorative measures, as suggested by Mr. Z. Ahmed.
59. The pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR) JUDGE (VIKAS SURI) JUDGE February 13th, 2025 Gurpreet Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 33 of 33 ::: Downloaded on - 14-02-2025 05:27:06 :::