National Green Tribunal
Mahanoy River Safety Society ... vs The State Of Bihar Through Chief ... on 21 December, 2020
1
Item No. 03
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 178/2017/EZ
(M.A. No. 01/2018 & I.A. No. 99/2020))
With
Execution Application No. 02/2018/EZ
In
Original Application No. 178/2017/EZ
Mahanoy River Safety Society Applicant(s)
Versus
State of Bihar & Ors. Respondent(s)
Date of hearing: 21.12.2020
Date of uploading: 30.12.2020
CORAM: HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Ms. Paushali Banerjee, Advocate
For Respondent(s): Mr. Keshav Mohan, ASC a/w Mr.
Surendra Kumar, Mr. Rishi Awasthi and
Mr. Piyush Vatsa, Advocates for
Respondent No. 1.
Ms. Amrita Pandey, Advocate for
Respondent No. 2.
Mr. Gorachand Roy Choudhury and
Soumitra Mukherjee, Advocates for
MoEF&CC.
ORDER
1. By filing this application, concern has been raised by the Applicant in respect of the construction of Block HQ 2 Administrative Building of Tetiya Bambar Block in the Munger district of Bihar as it is stated to be on the bank of Mahanoy river. It is urged that such construction would have the following adverse impacts:
a. Noise: Noise will be generated by construction equipment used in the construction of Block HQ Building as (i) the construction equipment are not properly muffled and held to the manufacturer's specifications as they pertain to operational noise levels, (ii) construction methods such as pile driving could result in noise of inordinate levels or intrusiveness and (iii) the noise associated with these activities may have deleterious effect on the environment and flora and fauna.
b. Air Quality: Air quality impacts include increased dust and airborne particulates caused by grading, filling, removals and other construction activities as well emissions from construction equipment.
c. Visual: Temporary visual impacts would result due to the presence of equipment and workers and 3 the added traffic and the resultant traffic congestion.
d. Water Quality and Soil Erosion: Soil erosion and impacts on water quality during construction due to removal of vegetation for initial clearing as grubbing and grading activities expose soil making it susceptible to erosion in areas adjacent to the Mahanoy River.
e. Water quality/sedimentation: Aquatic species would be endangered if a spill or leak or release of hazardous or toxic substances should occur during construction and would also adversely impact the surrounding as the river is a source water protection area.
2. It is contended that the river has been traditionally used for navigation, irrigation and other purposes by the villagers which is presently polluted by filth rendering the water to be toxic and unfit for consumption after commencement of the construction work. It is stated that the efforts made by the villagers to clean the mouth of the river has not borne any result. The Mahanoy river which is connected to the 4 adjoining villages and hamlets also acts as a flood barrier for Tetia Bamber. It is the case of the Applicant that once the Block HQ becomes functional, the river will turn into a gutter for carrying domestic and toxic waste destroying the biodiversity of the river beyond recovery.
3. It is alleged that there is also encroachment into the riverbed by the State Respondents and that the mouth of the river has been blocked by sand bars resulting from littoral drift preventing ideal exchange into the river. The Mahanoy river and the canals are stated to be ideal source for various fish and other aquatic animals. There has been no response from the authorities to the complaints and representations made by the villagers and that, there are also encroachments into the riverbed and illegal dumping of construction waste into the river continues.
4. In the above circumstances, the Applicant inter alia prays for the following reliefs:
"A. Furnish details of all plans, proposals and projects launched to restore and clean up the Mahanoy rivers.
B. Refrain from dumping or permitting the dumping of untreated sewage into the river bed.
C. Stop the construction activity immediately.5
D. Conduct a survey of the entire length of the river, and submit a report to this Hon'ble Tribunal on the river poromboke.
E. Conduct a survey of the bio diversity along the Mahanoy river submit a report to this Hon'ble Tribunal.
F. Ensure and prevent the dumping of any waste by such establishments into the river."
5. The case was taken up for the first time on 11.12.2017 when after taking cognizance, the Tribunal directed the State Pollution Control Board (PCB), Bihar, and the District Magistrate, Munger district, to inspect the area in question and verify on the correctness of the allegations contained in the application.
6. In M.A. No. 01/2018/EZ, revenue record in respect of the area within which the Block HQ administrative building was under construction had been annexed. Of these, Plot No. 118 was shown to be in the Mahanoy river which the Tribunal considered to be serious as it not permissible to use either the river or its bank for any activity, leave alone construction of permanent structures. Taking note of this vide order dated 11.01.2018, the State Respondent was directed to deal with this question in their reply and ensure that the construction was stopped forthwith if it was found to be correct. Direction was also issued against the District 6 Magistrate, Munger, to inspect the area and to take appropriate action and to submit a report. Vide order dated 25.02.2019, the State of Bihar had been directed to place on record Government Notification prescribing the distance to be maintained from the riverbank for construction. On 11.03.2019, it was orally submitted by the Learned Counsel for the State that no such rule had been framed by the State leading the Tribunal to pass an order of status quo in respect of the construction in question as the Tribunal was considering as to whether such construction was permissible in the area or not. By order dated 26.08.2019, we had drawn the attention of the State to Rule 22(2) of the Bihar Building Bye-Laws, 2014 which prescribes that "in case of rivers other than the Ganges, no construction or re- construction of any building shall be allowed, within a strip of 100 metres, or such distances as may be prescribed by the State Government, from the outer boundary of the riverfront of any river (as prescribed by the Irrigation Department) on such river as may be notified by the State Government".
7. During the course of the proceedings question arose as to whether or not the structure having been raised on an area which was earlier the course of Mahanoy river, and if so, 7 whether it could be directed to be demolished. Against this, further time was sought for by the State vide order dated 03.02.2020 to file a better affidavit relating to the area in question. An affidavit was ultimately filed by the State affirmed on 29.09.2019 reiterating what had been stated in two affidavits filed earlier by the District Magistrate, Munger with which we shall deal later.
8. It may be pertinent to note that the Applicant filed an Execution Application No. 02/2018/EZ seeking to enforce order dated 11.01.2018 with which we have alluded to earlier. Against the notice to show cause issued to him, the District Magistrate, Munger filed a detailed show cause setting out the fact that an area of 6.40 acres of Gram Tetia, Thana No. 364, Khata No. 330, Plot No. 898, an area of 2.39 acres and in Gram Lagma, Thana No. 352, Khata No. 37, Plot No. 118, an area of 1.85 acres and the Anchal Adhikari, Tetia Bamber had been selected for construction of Block cum Anchal Office. According to him, the said lands were Gair Mazaura Aam land. No Objection Certificate (NOC) in respect of the proposal had been obtained from the Gram Sabha. A Committee constituted to ascertain the position of such type of lands recorded as 8 for water resources, excretion or flood of water, found the nature of land to have remained unchanged. Based upon the said report, the Additional District Magistrate, Munger and the Collector of the district recommended transfer of the Gair Mazaura Aam Mahanoy river and rasta on 08.03.2014. It is further stated that the map prepared by the consultancy firm for the purpose showed the site to be 100 feet away from the bank of Mahanoy river.
9. It was further stated that pursuant to order of the Tribunal dated 11.01.2018, the site was once again inspected on 23.02.2018. Relevant portion of the report in this regard is reproduced below:
"The D.M., Munger during inspection found that the referred building of Tetiabamber Block headquarter has been constructed from the distance of about more than 250 feet of the bank of Mahanoy river. The D.M., Munger also found that the said river is rainy day river. The bed of the river is average 25 to 35 feet. At the time of inspection river had no water. The said river rests with water during rainy day only. The D.M., Munger specifically found during the inspection that the boundary wall of the under construction Block cum Anchal office is more than 100 feet away from the river bank. As per inspection report of the D.M., Munger the flow of the river is not affected by the construction of the said Block and Anchal office. The flank of the river, environmental and pollution issues are also not affected due to construction of the said Block-cum-Anchal office, Tetiabamber. About 58,000 people of the said Block is going 9 to be benefited from the construction of the said Block cum Anchal office. The present office of the Block is running in the community hall and information building. The then D.M., Munger filed affidavit of inspection report as per order dated 11.01.18 of the Hon'ble Tribunal vide oath file no. 98 dated 05.03.18."
10. Another affidavit/inspection report was filed by the District Magistrate, Munger, in compliance to the order dated 11.01.2018 after inspection of the site. The affidavit being of considerable significance, we deem it necessary to reproduce in extenso the relevant parts thereof which reads as follows:
"2. That this Affidavit is being filed in compliance of the order dated 11.01.2018 passed by this Hon'ble National Green Tribunal.
3. That with reference to the statements contained in paragraph 1 to 3 are matter of records.
4. That with reference to the statements contained in paragraph 4 of the said O.A., I most respectfully state and submit that initially proposal for acquisition of land for construction Block cum Anchal Office cum Residential Quarter had given by the AnchalAdhikari.
The District spot Selection Committee held its meeting on 21.05.2012 and recommended the land of 5.25 Acres for the aforesaid construction of the Block Officer Quarter/building etc. The Collector, Munger vide his letter no. 80/revenue dated 07.02.2012, informed the Principal Secretary Rural Development Department, Bihar about the probable 10 expenditure of Rs. 1.22 crores for the said acquisition of land of 5.28 Acre.
The Deputy Secretary Government of Bihar vide letter no. 151589 dated 11.06.2013 intimated to the auditor General Bihar Patna regarding Administrative acceptance of Rs. 1,21,90,000/- (One Crore Twenty One Lakh Ninety Thousand) only for construction of Block cum Anchal Office cum Residential Quarter building upon the said 5.28 acres of land.
It is important to mention here that vide Letter No. 160022 dated 16.08.2013 the Additional Secretary, Govt. of Bihar stopped the said acquisition of the said land for the said purpose till the further information of the Department and called for report from the Collector Munger on two points which is detailed as below:-
i) Whether Govt. land is available under Block-Tetia Bambar for construction of Block cum Anchal Office or not?
ii) If the Govt. land is available whether the said land is under the notified head office or not.
It is further submitted that the AnchalAdhikar has submitted his recommendation on 18.01.2014 and sent the same to the S.D.O., Hawelli Kharagpur for construction of the said block cum anchal office upon the Gair Mazarua Aam lands of an area of 6.40 Acres.
The details of the aforesaid lands are as follows:-
Gram Thana Khata Plot Area
No. No. No.
Tetia 364 330 1217 2.25 acres
330 898 2.39 acres
Lagma 352 37 118 1.85 acres
The said recommendation of Anchal Adhikar also disclosed that the NOC of the Gram Sabha had been taken. The D.C.L.R., the S.D.O., Hawelli Kharagpur vide his order dated 30.01.2014 also recommended for inter departmental transfer of the proposed land. It is also submitted that the No Objection Certificate of the Gram Sabha has been taken for the Purposed Land as per the Letter No. 11 217(6)Ra of Principal Secretary dated 24.02.2010.
It is also submitted that in the light of the said Letter No. 217(6)/Ra dated 24.02.2010 the Committee has been constituted to ascertain the position of such type of lands which are recorded as for water resources, excretion or flow of the water and the said Committee found that the nature of land has changed as plain field and then recommended for inter departmental transfer of the said land. The Collector Munger vide his Letter No. 1005/Ra dated 01.12.2016 intimated the Special Secretary, Rural Development Department, Bihar Patna regarding request for the inter Departmental transfer of the Govt. Lands. It is also important to mentioned that in compliance to made in letter no. 217(6)/Ra dated 24.02.2010, the Divisional Commissioner Munger vide his Letter No. 3937/Ra dated 31.12.2014 has also recommended for inter Departmental transfer of the said land.
It is also submitted that the A.D.M. Munger and the Collector Munger on 08.03.2014 recommended the above said lands for the inter departmental transfer of the lands of Gair Mazaru Aaam River Mohanoy and Rasta after considering the spot inspection report of the Anchal Adhikari, Tetia Bamber and the S.D.O., H. Kharagpur regarding the change of the nature of the proposed lands as field. The said recommendation dated 08.03.2014 also specifies that the Anchal Adhikari, Tetia Bamber has made his spot inspection report along with Nazari Maps of the proposed lands check slip, true copy of survey Khatian, NOC etc. The said recommendation dated 08.03.2014 also clarified that on the basis of the report of change of nature of proposed land spot inspection was made by the anchaladhikari, TetiaBambar/ D.C.L.R., H. Kharagpur and the S.D.O., H. Kharagpur and Executive Engineer, Water Resources Department, headed by the A.D.M., Munger and the said Committee also found that the chharan of the said river has changed as plain field, Rasta has also changed in field.
12It is not out of place to mention that the selection of land for construction of Block and Anchal Office etc. has been done as the nature of the concerning land now has been changed as plain land.
The SEN and Lall Consultants Pvt. Ltd., prepared the maps, which also denotes that the proposed site (spot) is 100 feet away from the bank of the Mohanoy River.
I most respectfully state and submit that one Dhirendra Kumar of Gram Tetia Bamber file a writ petition being C.W. J.C. No. 20160 of 2016 against the State of Bihar and others before the Hon'ble High Court at Patna in the matter of shifting of Block office in Tetia Bamber, Munger from the place where it is situated for the present and ventilating a grievance that it being shifted to another place, the grievance of the Writ Petitioner is that the new place where the office is being shifted is not convenient to the Public at large, there would be various difficulties if the office is shifted to the said area.
5. That with reference to the statements contained in paragraph 5 of the said O.A., I state and submit that the construction of the building of block office and anchal office of Tetia Bamber cum residence has been almost completed over the site.
6. That with reference to the statements contained in paragraph 6 of the said O.A., I state and submit that the Hon'ble NGT, Eastern Zone Bench, Kolkata has passed order dated 11.01.2018 and directed the District Magistrate, Munger to make enquiry by inspecting the spot. The District Magistrate, Munger has inspected the spot on 23.02.2018 and found that the referred the building at the Tetia Bamber Block Headquarter has been constructed from the distance of about more than 250 feet of the bank of the Mohanoy River. The District Magistrate inspected the spot and found that the said River is a rainy river. The bed of the Mohanoy river is average 25 to 35 Feet. Presently the River has no water. The said river rests with water during rainy day only. The under construction main building of Block and Anchal Office is about 250 13 Feets away from the river. The boundary wall of the under construction Block cum Anchal office is presently more than 100 Feets away from the river bank. The flow of the river is not affected by construction of the said Block and Anchal Office. The flank of the river, environmental and pollution issues are also not affected due to construction of the said Block cum Anchal Office, Tetia Bamber. About 58000 of the said Block will be benefitted from the construction of the Block cum Anchal Office. The present office of the Block is running is community Hall and information building."
11. As already observed, the affidavit filed on behalf of the State Respondents reiterates the averments contained in the affidavits filed by the District Magistrate, Munger, stating nothing further. We may, however, note that the essential question being considered by the Tribunal in the case was culled out by the State in the affidavit in the manner as follows:
1. Whether the Administrative building at 'Tetia Bamber Block' in District Munger, Bihar has been constructed of River Bed?
2. Whether the construction of the said Administrative Building is an encroachment of the said river forcing change in river course?14
3. Whether the Administrative building at 'Tetiya Bamber Block' in District Munger, Bihar has been constructed in violation of any existing building bye-laws, regulations etc.?
12. On Issue No. 1, after deliberating upon the details of the land and the other facts stated by the district authorities, it has been stated that as per the Committee's report the nature of land had changed over the course of time and the basic character had been transformed into a plain field and recorded as Gair Mazaura Aam land and not riverbed. Upon such findings inter-departmental transfer of the land had been recommended. As per the District Magistrate, inspection was held on 23.02.2018 and the buildings in question had been found to have been constructed at a distance of more than 250 feet of the bed of the Mahanoy river and that the width of the riverbed measures only about 25-35 feet and was not affected by the construction.
13. On Issue No. 2, it is been stated that the construction site was situated at a sufficient distance from the river and did not have any adverse impact on the environment. 15
14. Against Issue No. 03, it is stated that the minimum distance for construction of any building, etc., in case of river other than Ganga has not been fixed by the Government of Bihar. The list of rivers, other than Ganga as required under Rule 22(3) of the Bihar Building Bye- Laws, 2014, has not yet been notified by the State. In any case, the distance of the boundary of the campus was about 100 feet away from the river and the main building about 250 feet from the riverbed. It is thus, contended that there was no violation of any existing bye-laws, regulations, etc. by the State in undertaking the construction in question.
15. During the earlier proceedings, we had pointed out to the State Respondents that apart from the allegations of construction having been undertaken on the bed of Mahanoy river, the Applicant had also expressed concern regarding pollution caused thereto due to discharge of domestic waste water and disposal of construction materials. Being ordered to meet this question, an additional affidavit has been filed by the State affirmed on 12.01.2020, stating as follows:
"4. It is submitted that at present there is an existing and fully functional septic tank in the building, where the waste from the toilets are discharged and from there the waste goes to 16 the soak pit and hence, no waste or untreated water from the said administrative building flows into the river Mahanoy. It is further submitted that only the rain water from the open drains flow into the river from the said administrative building.
5. It is further submitted that upon being informed about the proceedings held before this Hon'ble Tribunal on 25.11.2020, the Building Division, Building Construction Department, District Munger, has immediately taken appropriate steps for construction of STP (50 KLD) for disposal of sewage and storm water in the Administrative Building at Tetiya Bamber Block in District Munger.
6. The Building Division, Munger has sought and received the Brief Technical Report along with Storm Drawing from the Architect and Engineer, M/s Sen & Lall Consultant Pvt. Ltd., on 08.12.2020 for construction of STP (50 KLD) for disposal of sewage and storm water from the aforesaid building to be constructed at the cost of Rs. 36.98 lakhs."
16. In substance, it is contended that no waste water and sewage are being discharged into the river as fully functional septic tank has been provided in the building and, in addition, a 50 KLD STP has been proposed for disposal of sewage and storm water from the construction estimated at ₹36.98 lakhs.
17. It may also be relevant to note that the Applicant had also filed an application for amendment of the O.A. which according to the Learned Counsel for the Applicant was solely for the purpose of indicating that the Mahanoy river is not a rainfed seasonal river but a perennial one. 17
18. We have heard the learned Counsel for the parties and have examined the affidavits and the documents filed therewith. The primary contention which the Tribunal has been called upon to determine is as to whether or not the construction of the Block HQ Administrative Building was either being raised on the riverbed of Mahanoy river or on the prohibited area of its banks. From the affidavits filed by the District Magistrate, Munger and the State Respondent alluded to above, we find that the concern expressed by the Applicant to have been belied. Although as per the report of the District Magistrate, Munger, indicates that though the area does fall where the Mahanoy river once flowed, over a period of time, however, the river has changed its course transforming the nature of the land. That necessary exercise had been undertaken by the district authorities before identifying the land for the proposed Block HQ administrative building and that it was only after having been confirmed that there was no impediment in proposing the site for the construction that the approval had been accorded. Further as per the report of the District Magistrate, the boundary wall of the Block HQ Administrative Building is said to be 100 feet away from the bank of the river and building itself about 250 feet 18 therefrom. The maximum width of the river is stated to be 25-30 feet with its depth 3-4 feet at the maximum. Photographs have been filed by the State to substantiate these facts. We find that in addition to Plot No. 118 which was stated to be once on the bed of the Mahanoy river, there are other two plots of land upon which the construction is being undertaken.
19. So far as the concern expressed with regard to the possible pollution being caused to be river by discharge of waste water and sewage, the State appears to be alive to the situation and has accordingly provided septic tank and has now proposed construction of a 50 KLD STP dedicated for the Block HQ Administrative Building.
20. In the absence of any materials to the contrary produced by the Applicant, we do not find reason as to why the affidavits filed by the State should not be accepted.
21. In view of the above facts and circumstances, we are of the considered opinion that all anxieties expressed by the Applicant in the case appears to have been duly addressed.
22. Before parting, however, we deem it necessary to direct the State to ensure that appropriate measures are taken to 19 prevent any disaster should the river return to its original course. Regarding this, the Gram Panchayat, the Department of Irrigation, Government of Bihar, District Magistrate, Munger and other concerned authorities of the Government of Bihar shall prepare necessary Action Plan. It shall also be ensured that the 50 KLD STP which has been proposed is taken up by according priority. Action Plan duly prepared and status report on the construction of the STP shall be filed with the registry at [email protected] and [email protected] on or before 31.03.2021.
23. With these observations and directions, this O.A. and E.A. No.2/2018/EZ stand disposed off along with connected M.A. and I.A.
24. No order as to costs.
S.P. Wangdi, JM Saibal Dasgupta EM 30th December, 2020 O.A. No. 178/2017/EZ avt