Gujarat High Court
Kirtikumar Sadashiv Bhatt vs Narmada, Water Resources, Water Supply ... on 22 October, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/WPPIL/274/2017 ORDER DATED: 22/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 274 of 2017
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KIRTIKUMAR SADASHIV BHATT
Versus
NARMADA, WATER RESOURCES, WATER SUPPLY AND KALPASAR
DEPARTMENT, & 5 other(s)
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Appearance:
MR DJ BHATT(164) for the Applicant(s) No. 1
MR CHINTAN DAVE, AGP(1) for the Opponent(s) No. 1
MR ANKIT SHAH(6371) for the Opponent(s) No. 2
MR DEVANG VYAS(2794) for the Opponent(s) No. 4
NOTICE NOT RECD BACK(3) for the Opponent(s) No. 3,5,6
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 22/10/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant [since deceased] has prayed for the following reliefs:-
"12(A) To issue a writ of mandamus or any other writ or direction or order under Article 226 of the Constitution of India to respondent No.1 and 2 to initiate appropriate legal proceedings against the (1) the State of Madhya Pradesh and (2) Local Authorities releasing sewage in Narmada for causing heavy and severe pollution in the Narmada and against the Madhya Pradesh Pollution Control Board and failing to stop the release of untreated sewage in the Narmada;
(B) To issue a writ of mandamus or any other writ or direction or order under Article 226 of the Constitution of India to respondent No.3 to 5 to issue appropriate orders/ directions to Page 1 of 9 Downloaded on : Mon Jan 17 01:51:20 IST 2022 C/WPPIL/274/2017 ORDER DATED: 22/10/2021 (1) the State of Madhya Pradesh, (2) Local Authorities releasing sewage in Narmada and (3) Madhya Pradesh Pollution Control Board to stop causing severe pollution in Narmada river in a time-bound manner, within a period of three months.
(C) To issue a writ of mandamus or any other writ or direction or order under Article 226 of the Constitution of India to respondent No.6 to draw scheme for imposition of prohibition against discharge of untreated sewage in Narmada with a view to mitigating crisis of water quality.
(D) To pass such other orders and further orders as may be deemed necessary in the facts and circumstances of the present case."
2. On 08th October 2021, this Bench passed the following order:-
1. We are informed that the writ-applicant has passed away.
This is a writ-application filed in Public Interest. This litigation has something to do with the release of sewage in river Narmada. We should not dispose of this writ-application only on the ground of the demise of the writ-applicant. This being a Public Interest litigation, we must look into the same.
2. We request Mr. Premal Joshi, the learned counsel to assist us as amicus. The Registry is directed to furnish one entire set of the Paper-book to the learned counsel Mr. Premal Joshi at the earliest. Mr. Joshi shall study the matter and assist this Court on the next date of hearing.
3. We also request Mr. Ayaan Patel, the learned AGP to look into the matter at the earliest and assist us.
4. We take notice of the order passed by a Co-ordinate Bench dated 26th April 2019. The same reads thus:-
"Heard learned advocate for the petitioner.
It is submitted that so far as the prayer is concerned, though covers whole area through which river Narmada passes, so far as State of Gujarat is concerned, authentic reports are available about discharge of effluents by various Nagarpalikas and Gram Panchayats in the river which results into irreversible situation. According to the petitioner, apart from eleven cities and towns situated on Page 2 of 9 Downloaded on : Mon Jan 17 01:51:20 IST 2022 C/WPPIL/274/2017 ORDER DATED: 22/10/2021 the bank of river Narmada in the State of Madhya Pradesh, number of towns and cities in the State of Gujarat are also discharging untreated effluents in the river.
Affidavit-in-reply filed on behalf of respondent No.4 - Ministry of Environment, Forests and Climate Change, Government of India, only speaks about issuance of directions to sixty-six municipal authorities of metropolitan cities and State capitals. No record emerges about setting up of sewage treatment plants and proper utilization and disposal of sewage generated in respective States.
At the request of learned Assistant Government Pleader to respond, the matter is adjourned to 21.06.2019."
5. We also take notice of the order passed by the Co- ordinate Bench dated 05th July 2019. The same reads thus:-
"Apropos to order dated 26.04.2019, the learned AGP seeks time to file reply, so as to specifically deal with the contamination of waste water in the river Narmada in the State of Gujarat and the effluents, since the major source of pollutants are local anthropogenic activities, agricultural and by-industrial effluents. Therefore, it is expected of the respondents to place list containing details about gram panchayat, municipalities, municipal corporation if any, industries if discharging effluents either waste water or industrial effluents and any treatment plant available and required to prevent any further damage. Stand over to 26.07.2019."
6. We would like to know further developments in the matter.
7. Rule returnable on 22.10.2021.
The matter is treated as Part-heard. To be notified before this Bench [Mr. J.B. Pardiwala And Ms. Vaibhavi D. Nanavati, J.J.]."
3. We have heard Mr. Premal Joshi, the learned amicus; Mr. Chintan Dave, the learned AGP appearing for the State-respondent and Mr. Ankit Shah, the learned counsel appearing for the Gujarat Pollution Control Board.
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4. On 26th April 2019, a Co-ordinate Bench of this Court passed the following order:-
"Heard learned advocate for the petitioner.
It is submitted that so far as the prayer is concerned, though covers whole area through which river Narmada passes, so far as State of Gujarat is concerned, authentic reports are available about discharge of effluents by various Nagarpalikas and Gram Panchayats in the river which results into irreversible situation. According to the petitioner, apart from eleven cities and towns situated on the bank of river Narmada in the State of Madhya Pradesh, number of towns and cities in the State of Gujarat are also discharging untreated effluents in the river.
Affidavit-in-reply filed on behalf of respondent No.4 - Ministry of Environment, Forests and Climate Change, Government of India, only speaks about issuance of directions to sixty-six municipal authorities of metropolitan cities and State capitals. No record emerges about setting up of sewage treatment plants and proper utilization and disposal of sewage generated in respective States.
At the request of learned Assistant Government Pleader to respond, the matter is adjourned to 21.06.2019."
5. Thereafter, on 05th July 2019, the following order came to be passed:-
"Apropos to order dated 26.04.2019, the learned AGP seeks time to file reply, so as to specifically deal with the contamination of waste water in the river Narmada in the State of Gujarat and the effluents, since the major source of pollutants are local anthropogenic activities, agricultural and by-industrial effluents. Therefore, it is expected of the respondents to place list containing details about gram panchayat, municipalities, municipal corporation if any, industries if discharging effluents either waste water or industrial effluents and any treatment plant available and required to prevent any further damage. Stand over to 26.07.2019."Page 4 of 9 Downloaded on : Mon Jan 17 01:51:20 IST 2022
C/WPPIL/274/2017 ORDER DATED: 22/10/2021
6. This litigation in Public Interest relates to the pollution caused in the river Narmada on account of release of untreated sewage, not only flowing from the State of Madhya Pradesh, but also, within the State of Gujarat.
7. Mr. Joshi, the learned amicus brought to our notice that the issue raised in the present writ-application was raised before the National Green Tribunal by an N.G.O. running in the name of Aakhil Bhartiya Vidyarthi Parishad and few others. In all four applications came to be filed before the Tribunal under Section-14 of the National Green Tribunal Act, 2010 [in short 'The Act, 2010'] in the years 2013, 2014 and 2015 respectively. In all such applications, the following issues were raised.
1. Discharge of untreated effluent of domestic sewage and solid waste in the river should be restrained permanently.
2. Use of polly carry bags and plastic materials within 100 meters in the vicinity of the river should be banned.
3. Forest Department should make sure that there is no cutting of trees on the river banks.
4. The Municipal Corporations of town constituted along with river Narmada should carry out an exercise with regard to encroachments and unauthorized constructions and no such new permissions for constructions along the river bank should be granted.
5. The Respondents be directed, in view of the ground water levels to submit a comprehensive scheme for water management in the Narmada Valley both of surface water in the streams as well as underground Page 5 of 9 Downloaded on : Mon Jan 17 01:51:20 IST 2022 C/WPPIL/274/2017 ORDER DATED: 22/10/2021 water.
6. No illegal mining of sand and other mineral be permitted from the river bed.
7. No brick kilns be allowed to be established in the vicinity of the river.
8. No fishing by illegal means be permitted including by use of chemicals, electrocution etc.
9. Proper arrangement for cremation along the river bank of the river Narmada at safe distances msut be ensured.
10. The MPPCB be directed to monitor and submit action taken reports as well as analysis reports of the water quality in the river Narmada.
11. Industries such as the security paper mills at Hoshangabad be directed not to discharge untreated effluent into the river Narmada.
12. Proper steps be taken by the Narmada Valley Development Authority (NVDA), the EPCO and SEIAA for protection of the river Narmada which is a sacred river to all for its conservation and keep it environmentally clean.
13. Steps must be taken for preventing soil erosion.
14. The Urban Administration & Development Department should take stringent action and steps for controlling and preventing solid waste going into the river Narmada.
15. The bio-diversity of the local flora and fauna in the river valley of the river Narmada be preserved.
16. The Department of religious trust and endowments stop people from conducting any religious activity within 500 meters of the river.
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8. Mr. Joshi also pointed out that a writ-petition was filed in the High Court of Madhya Pradesh being the Writ-petition No.1182 of 1997, which came to be transferred by the Jabalpur Bench to the National Green Tribunal and the same came to be re-numbered as O.A. No.30 of 2014. Mr. Joshi, thereafter, made available a copy of the final order passed by the Tribunal disposing of all the Original Applications vide order dated 29th July 2021. Paragraph-5 of the said reads thus:-
"5. We also direct the State Pollution Control Board to fulfill its statutory duty and legal obligation to comply the norms and provisions as contained in The Air (Prevention and Control of Pollution) Act, 1981 and The Water (Prevention and Control of Pollution) Act, 1974 and also to comply the directions issued by Principal Bench of this Tribunal in Original Application No. 593 of 2017 vide order dated 21st September, 2020. Relevant paragraphs are abstracted below:
"13. Directions in order dated 06.12.2019: "XII. Directions:
47. We now sum up our directions as follows:
i. 100% treatment of sewage may be ensured as directed by this Tribunal vide order dated 28.08.2019 in O.A. No. 593/2017 by 31.03.2020 atleast to the extent of in-situ remediation and before the said date, commencement of setting up of STPs and the work of connecting all the drains and other sources of generation of sewage to the STPs must be ensured. If this is not done, the local bodies and the concerned departments of the States/UTs will be liable to pay compensation as already directed vide order dated 22.08.2019 in the case of river Ganga i.e. Rs. 5 lakhs per month per drain, for default in insitu remediation and Rs. 5 lakhs per STP for default in commencement of setting up of the STP.
ii. Timeline for completing all steps of action plans including completion of setting up STPs and their commissioning till 31.03.2021 in terms of order dated Page 7 of 9 Downloaded on : Mon Jan 17 01:51:20 IST 2022 C/WPPIL/274/2017 ORDER DATED: 22/10/2021 08.04.2019 in the present case will remain as already directed. In default, compensation will be liable to be paid at the scale laid down in the order of this Tribunal dated 22.08.2019 in the case of river Ganga i.e. Rs. 10 lakhs per month per STP.
iii. We further direct that an institutional mechanism be evolved for ensuring compliance of above directions. For this purpose, monitoring may be done by the Chief 12 Secretaries of all the States/UTs at State level and at National level by the Secretary, Ministry of Jal Shakti with the assistance of NMCG and CPCB.
v. The Chief Secretaries may set up appropriate monitoring mechanism at State level specifying accountability of nodal authorities not below the Secretary level and ensuring appropriate adverse entries in the ACRs of erring officers. Monitoring at State level must take place on fortnightly basis and record of progress maintained. The Chief Secretaries may have an accountable person attached in his office for this purpose.
vi. Monthly progress report may be furnished by the States/ UTs to Secretary, Ministry of Jal Shakti with a copy to CPCB. Any default must be visited with serious consequences at every level, including initiation of prosecution, disciplinary action and entries in ACRs of the erring officers."
9. It appears that there has been no progress thereafter. We are of the view that since the Tribunal has considered this issue at length and has passed various orders, we should transmit this writ- application to the Tribunal.
10. Thus, the Writ Petition (PIL) No.274 of 2017 stands transferred to the National Green Tribunal, Western Bench, Pune, Maharashtra.
Page 8 of 9 Downloaded on : Mon Jan 17 01:51:20 IST 2022C/WPPIL/274/2017 ORDER DATED: 22/10/2021 The Registry shall transmit to the National Green Tribunal, Western Bench, Pune, Maharashtra within one week from today.
11. We are grateful to Mr. Premal Joshi for assisting this Court as amicus.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) A. B. VAGHELA Page 9 of 9 Downloaded on : Mon Jan 17 01:51:20 IST 2022