National Green Tribunal
Girja Shankar Rai vs State Of Uttar Pradesh on 25 January, 2022
Item No. 02 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 165/2021
Girja Shankar Rai & Ors. Applicant(s)
Versus
State of Uttar Pradesh & Ors. Respondent(s)
Date of hearing: 25.01.2022
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Narendra Kushwaha (in person)
ORDER
1. This application has been filed by Girja Shankar Rai and others complaining inaction of statutory authorities in protection of Laxmi Tal and nearby area declared as 'green belt/green park' in Master Plan 2021 of Jhansi where there are several unauthorized encroachments and water body is also being polluted due to discharge of untreated effluent.
2. Earlier, a similar complaint was received by Tribunal in OA No. 380/18; Park Avenue Plot Holders Welfare Society & Anr. v. Union of India & Ors. and OA No. 999/2019; Dr. Ajay Kumar v. Union of India & Ors., wherein illegal sale and constructions over land reserved for park and open spaces in violation of Meerut Master Plan 2021 was complained by the Applicants. State came with a stand that it is in the process of finalizing a policy for protection of parks and green belts and 1 stand of State was noted in the order dated 17.01.2020 in OA No. 380/2018. The relevant extract thereof is as under:
"The aforesaid narration of facts and the proceedings in this case wherein statements had been made on different occasions for the purpose of ensuring that the land meant for park and green belt would be retained safely without encroachment had all been without any result. We find that ever-since the year 2014 when a representation was given to the concerning department and even during the pendency of the present case before us where many years have been passed, no concrete steps have been taken by State of Uttar Pradesh. We are sure that during this intervening period of more than five years much change must has taken place at the site and the land must have been used for different purposes by the individuals by claiming title in the property in question as having been purchased through registered sale deed. All this has happened due to the snail speed with which the respondent Government and its authorities have been proceeding. In view of the above, we direct the Chief Secretary, State of Uttar Pradesh to take a final decision, for framing a policy or amending the relevant legislation for the purpose of saving/protecting the land which is meant for park and green belt under the Urban Master Plan of the State, on or before 31st January, 2020."
3. Later on, State Government issued an order on 19.02.2020, directing prevention of illegal constructions against permitted land user in accordance with the provisions of Uttar Pradesh Urban Planning and Development Act, 1973. To prevent illegal sales, directions were issued to provide following details in the Sale Deed:-
"(A) Gata number and name of Village, Tehsil and District should be mentioned.
(B) In case the land exists within Regulated Area/Development Area, the name of the respective Regulated Area/Development Area should be mentioned.
(C) In case the land is proposed to be used for park, open space, greenbelt, playground and road in the Master Plan, then the landuse must be mentioned.
(D) In the event of construction against the land-use as mentioned in the aforesaid sub-para C, the purchaser will be responsible for all legal proceedings including demolition, such consent must be mentioned in the Sale Deed."2
4. Noticing the above stand taken by State Government and other authorities, OAs 380/2018 and 999/2019 were finally disposed of vide order dated 19.01.2021. Directions issued in paras 7 and 8 read as under:
"7. In view of the above, the Meerut Development Authority may take further action in accordance with law which may be reviewed periodically by the Principal Secretary, Urban Development Department, UP. It may be ensured that the land use is not changed without following due process of law, which may be regulated in terms of the Master Plans by the concerned authorities. The Principal Secretary, Housing and Urban Development, UP may also ensure that the concerned Development Authorities in the State follow the Master Plan and file periodical reports to that effect.
8. An action taken report as on 30.06.2021 may be furnished by the Principal Secretary, Housing and Urban Development, UP to the Oversight Committee headed by the Justice S.V.S. Rathore, former Judge of Allahabad High Court, who may convey its suggestions for the authorities and if necessary, send a report to this Tribunal."
5. In respect of Jhansi Master Plan 2021, similar complaint of encroachment and inaction with regard to protection of areas identified as parks, green land, open areas etc., was raised in OA No. 114/2021; Narendra Kushwaha v. State of Uttar Pradesh, filed by one Mr. Narendra Kushwaha. Noticing the complaint, Tribunal disposed of the matter vide order dated 28.05.2021 which reads as under:
"Grievance in this application is against inaction in removing the encroachment and taking required action protecting the areas identified as parks, green land, open areas in the Master Plan, in violation of orders of this Tribunal dated 19.12.2018 in OA No.380/2018, Park Avenue Plot Holders Welfare Society v. UOI, and subsequent orders, and directions issued by the State of UP, Department of Housing and Urban Development. Grievance is in respect of Jhansi Development Authority and Jhansi District Administration. Particular reference is made to Mauja Pichora, with a list of about 100 encroachers. It is further stated that the details are required to be prepared and provided to the Stamp and Registration Department, as directed in several orders of the State Govt., in compliance of orders of this Tribunal.
Though none appears for the applicant, we have perused the papers. We are of the view that the matter needs to be looked into, in the first instance, by the Principal Secretary, Urban Development, UP and 3 remedial action be taken in accordance with law. Ordered accordingly.
The application is disposed of.
A copy of this order be forwarded to the applicant and the Principal Secretary, Urban Development, UP by e-mail for compliance."
6. Present application has been filed raising complaint before us that not only no action has been taken in respect to the land reserved as 'green belt/park' in Jhansi Master Plan 2021 but also a water body, i.e., Laxmi Tal at Jhansi is being encroached illegally and also being polluted but no action has been taken by the concerned statutory authorities for its preservation and protection. Tribunal constituted a joint Committee comprising Principal Secretary, Urban Development, UP, Jhansi Development Authority and District Magistrate, Jhansi and directed it to submit a factual report. Relevant paragraphs 3 and 5 of the order read as under:
"3. Since similar complaints are being repeatedly filed, we find it necessary to ascertain the compliance status from a joint Committee comprising Principal Secretary, Urban Development, UP, Jhansi Development Authority and District Magistrate, Jhansi.
4. ---------x--------x--------
5. The Principal Secretary, Urban Development, Jhansi will be the nodal agency for coordination and compliance. DM with local Members may have ground survey done and report to Secretary, UD for consolidated action. A status report on the subject may be filed within two months 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. The report may specify the status of preparation and execution of DEP, number of show cause notices issued and final action taken thereupon, the status of compliance of order of this Tribunal for protection of water bodies being order dated 18.11.2020 in O.A. No. 325/2015, Lt. Col. Sarvadaman Singh Oberoi v. UOI such as demarcation of boundaries of Jhansi Tal, water quality, effectiveness of prevention of discharge and disposal of sewage and solid and other waste into Tal and in its catchment area, removal of encroachments, public awareness and integrated action plan for restoration within time frame."4
7. Pursuant to above order, District Magistrate, Jhansi has submitted report dated 22.10.2021 stating that for compliance of Tribunal's order, he (District Magistrate) constituted a Committee comprising of (1) Municipal Commissioner, Nagar Nigam, Jhansi; (2) Vice President, Jhansi Development Authority, Jhansi; (3) Additional District Magistrate, Finance and Revenue, Jhansi; (4) Additional District Magistrate (Judicial) Jhansi and, (5) Regional Officer, PCB, Jhansi or his nominee. The said Committee visited the site and found that as per Revenue records, area of Laxmi Tal is 33.068 ha (82.22 acres) comprising 60 plots. The land on the site was measured. It was found that only in Gata No. 1246, one Mr. Mangaldas Rayakwar has raised illegal construction and rest land was available without any encroachment. The illegal construction of Mr. Mangaldas Rayakwar on Gata No. 1246 has been demolished by Enforcement Squad of Nagar Nigam Jhansi. There are two more houses constructed on said plot by Mr. Maniram S/o. Mr. Babulal Rayakwar and Mr. Jitendra Rayakwar S/o. Mr. Babulal Rayakwar. The house of Mr. Maniram is in 200 sq.ft. and old while Mr. Jitendra Rayakwar constructed house under Pradhan Mantri Awas Yojna during April-May, 2021, during Covid-19 lockdown period. Both encroachers were issued notices for removal of unauthorized constructions whereupon they approached Allahabad High Court by filing writ petitions and matter is pending. However, it is not stated that any interim order has been passed by High Court. Nagar Nigam is monitoring the matter actively and would take appropriate action very soon. Besides this, two public temples have been constructed on the land of Laxmi Tal but their removal will not be practicable in view of law and order situation. (This statement ignores Allahabad High Court order directing to remove encroachments from public land). No other unauthorized construction 5 was found in the land of Laxmi Tal. Further, under Smart City Scheme, for preservation and protection of Laxmi Tal land and water and for its purification, steps are being taken.
8. With regard to the land in vicinity of Laxmi Tal, reserved for park, report says that an area of 170.48 ha, situated in Mauza and Dadiyapura has been reserved as public park in Master Plan 2021 of Jhansi. This entire land belong to private owners and development authority has not acquired due to financial constraints. The residential infrastructures like roads, electrification, contact roads, sanitation etc. have been arranged. In the land reserved for city parks, 67 unauthorized constructions were reported, made between 2017-2020 and for removal thereof, notices have been served and demolition orders have been passed by the competent authority. Out of 67, 34 are pending in appeal before Appellate Authority/Commissioner, Jhansi and after disposal of those appeals, appropriate action will be taken. It is also said that mostly constructions have been raised on small plots/lands by economically weaker sections and middle-class families and the constructions have been made clandestinely. 23 unauthorized constructions mentioned in Original Application, have been raised on land reserved for City Park. Appropriate action is in process. Further a board has been installed at City Park land mentioning, "the land reserved for park should not be subject of sale/purchase". The authorities have also undertaken survey of the land and would take appropriate steps for its preservation.
9. With regard to pollution of water in Laxmi Tal, report says that action has been taken by Jal Nigam and Jal Sansthan, Jhansi. As per report submitted by the said bodies, drains/sewers discharging sewage in Laxmi Tal are proposed to be bye-passed and after treatment of sewage, 6 treated water shall be discharged in Laxmi Tal. Work on the scheme is in process. A 26 MLD STP and three Sewage Pumping Stations have been constructed under National Lake Conservation Plan for protection of water of Laxmi Tal from being polluted. The aforesaid STP takes care of sewage generated in certain areas. Further, a Tertiary Treatment Plant (TTP) of 4 MLD is proposed and treated water of STP after its treatment from TTP shall be discharged in Laxmi Tal, whereafter no polluted effluent will enter Laxmi Tal.
10. With regard to sewage/solid waste and other wastes, report says that door-to-door collection has started and further action for protection of Laxmi Tal under Smart City Scheme has been taken. Some other steps are also proposed to be taken. Extract of Report submitted by District Magistrate, as received from Committee constituted by it, is reproduced as under:
"7 8
"9
11. A separate report has been submitted by Vice Chairman, Jhansi Development Authority, Jhansi to Municipal Commissioner, Nagar Nigam, Jhansi and relevant extract of the said report, is as under:
"
"10
12. In the report, details of 23 encroachments, complained by applicants, and action taken, is given in the form of chart as under:-
"
"11
13. The aforesaid chart shows that out of 23 matters, 13 are pending in appeal, in 01 matter, illegal construction has been removed, in 01 matter even case has not been registered and in one matter notice was issued but thereafter file is not traceable and in remaining matters, orders for demolition were passed on 30.07.2021 but thereafter nothing has been done. Thus, in 07 matters no action has been taken despite order of demolition passed on 30.07.2021. No reason has been given as to why said orders have not been executed so far.
14. A separate report has been filed by Additional Chief Secretary, Urban Development Department, UP, vide letter dated 21.01.2022 and the said report is based on the compliance report sent by District Magistrate, Jhansi. The information submitted before us is based on the report of District Magistrate, Jhansi and placed before us in the form of chart, by Additional Chief Secretary, and it reads as under:
"12 13 14 15
"
15. We find that item 2 of the chart with regard to water quality of Laxmi Tal, Additional Chief Secretary has said that as per report, no untreated water is being discharged into Laxmi Tal, presently. But report of District Magistrate, which we have quoted above, shows differently and says that many steps are in the stage of planning and only after execution thereof, there would be complete stoppage of discharge of polluted effluent in Laxmi Tal water but presently, 26 MLD STP is not able to do complete job. It is really unfortunate that a Senior Officer like Additional Chief Secretary has not carefully read the report and made a wrong statement in its own report.
16. Further we find that none of the said reports can be said to comply Tribunal's order in entirety. No report refers to District Environment Plan for which there was a specific direction. Reports also withhold information like quantity of sewage entering Laxmi Tal, water quality 16 data, time for completion of TTP, action plan, if any, for desiltation and cleaning of water etc.
17. Maintenance of water body is prime responsibility of statutory authorities as well as statutory regulators under Environmental Laws and other enactments dealing with public health and similar issues. Similarly, a land reserved for green belt/park in the Master Plan whether belongs to State or private owners cannot be allowed to be used for raising any construction. With respect to the area reserved for 'green belt/park', it has been repeatedly held by Supreme Court that such spaces cannot be changed to residential or commercial one.
18. In Lal Bahadur v. State of UP & Others, (2018)15SCC407, change of master plan and converting green area into residential one was considered. The issue was, whether such conversion is conducive to protection of environment or not. In the master plan of 1995 of Lucknow, area in dispute was reserved as green belt. In master plan 2021, the same area, shown earlier as green belt, was converted as residential. This part of master plan 2021 was challenged before Lucknow bench of Allahabad High Court. Writ petition was dismissed. The matter came in appeal before Supreme Court. Court held in para 12 of judgment that change of area from green belt to residential is in violation of Article 21, 48A and 51A(g) of the Constitution. Reliance was placed on Bangalore Medical Trust v B.S. Muddappa & Others, (1991)4SCC54, wherein Court had said that protection of environment, open spaces for recreation and fresh air, playground for children, promenade for the residents and other conveniences or amenities are matters of great public concern and a vital interest to be taken care of in a development scheme. Public interest in the reservation and preservation of open spaces for parks and 17 playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other use. Court also relied on an American Supreme Court Judgment Agins vs. City of Tiburon, [447 us 255 (1980)], wherein Court said: '... it is in the public interest to avoid unnecessary conversion of open space land to strictly urban uses, thereby protecting against the resultant adverse impacts, such as ...... pollution, .... destruction of scenic beauty, disturbance of the ecology and the environment, hazards related geology, fire and flood, and other demonstrated consequences of urban sprawl'.
19. In para 15, Court said that, "This Court had clearly laid down that such spaces could not be changed from green belt to residential or commercial one. It is not permissible to the State Government to change the parks and playgrounds contrary to legislative intent having constitutional mandate, as that would be an abuse of statutory powers vested in the authorities. Court also observed, when master plan was prepared earlier and authorities found importance of such space, it was their bounden duty not to change its very purpose when they knew very well the importance of this place to be kept as open space. Court said, "The importance of park is of universal recognition. It was against public interest, protection of the environment and such spaces reduce the ill effects of urbanisation, it was not permissible to change this area into urban area as the garden/ Greenbelt is essential for fresh air, thereby protecting against the resultant impacts of urbanization, such as pollution etc. The provision of the Act of 1973 and other enactments relating to environment could not be permitted to become statutory mockery by changing the purpose in the master plan from green belts to residential one. Authorities are enjoined with duty maintain them as such as per doctrine of public trust."
20. Ultimately, Court quashed Master Plan 2021 changing use of area in question from greenbelt to residential and said that it shall be held in trusteeship only for the purpose of park in future.
18
21. Despite the law of land referred above and the orders passed by Tribunal expressing similar views, we find that approach of concerned authorities is very casual, lackadaisical and non-serious. We do not find any element of commitment, sincerity, honest intention and will on the part of authorities in taking effective steps for preservation and protection of green belt/land reserved for park in Master Plan.
22. Applicants have also filed objections to the report of District Magistrate and almost on every statement of fact, given by District Magistrate, applicants have submitted that report is misleading, incorrect and contrary to actual position existing on the site. Applicants have also placed on record a list of almost 100 sale deeds of parts of the land reserved as 'green belt/park' showing that sale deeds have been executed in 2020-21 itself without giving details of the property as mentioned in Government order and no effective action has been taken by authorities concerned. The objections of applicants against District Magistrate's report are reproduced as under:
"19 20 21 22 23 24
"
23. In the above backdrop of the facts, we find it appropriate to have an affirmation of factual report from a Committee comprising of different authorities and, therefore, we constitute a joint Committee comprising of MoEF&CC, CPCB, Department of Agriculture, UP, Department of Forest & Environment, UP and Divisional Commissioner, Jhansi, shall make spot inspection, examine relevant records and submit a factual report within two months. CPCB and Divisional Commissioner, Jhansi will be the nodal agency for coordination and compliance. First meeting of Committee shall be held within 15 days.
24. On the next day of hearing, Municipal Commissioner, Jhansi; Vice Chairman, Jhansi Development Authority; District Magistrate, Jhansi; Divisional Commissioner, Jhansi and Additional Chief Secretary, Urban Development, UP, shall also remain present in virtual mode.
A copy of this order be forwarded to the Municipal Commissioner, Jhansi; Vice Chairman, Jhansi Development Authority; District Magistrate, Jhansi; Divisional Commissioner, Jhansi and Additional Chief Secretary, Urban Development, UP by email.
List for further consideration on 04.04.2022.
Sudhir Agarwal, JM Dr. Nagin Nanda, EM 25 Dr. Afroz Ahmad, EM January 25, 2022 Original Application No. 165/2021 AVT 26