National Green Tribunal
Shailesh Singh vs M/S Designco on 23 November, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 03 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
M.A. No. 23/2022 & M.A. No. 19/2021
In
Original Application No. 303/2020
(With report dated 21.09.2022)
Shailesh Singh Applicant
Versus
M/s. Designco, Moradabad & Ors. Respondent(s)
Date of hearing: 23.11.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Ms. Preeti Singh & Mr. Sunklan Porwal, Advocates for Applicant
in M.A 23/2022 & M.A 19/2021
Respondent: Mr. Jasmeet Singh & Mr. Pushpendra S. Bhadoriya, Advocates for
M/s Designco, Moradabad, M/s Lohia Brass & M/s C.L. Gupta
Mr. Sriansh Prakash, Advocate for M/s Dewan & Sons
ORDER
1. Issue for consideration is compliance of statutory obligations under the River Ganga (Rejuvenation, Protection and management) Authorities Order, 2016 providing for protection of floodplain zone of river Ganga and its tributaries from encroachments by the authorities created thereunder. The matter is concluded by earlier binding orders on the subject and compliance thereof remains challenge.
2. These applications, in substance, seek enforcement of order of this Tribunal dated 07.01.2021 in OA No. 303/2020, Shailesh Singh vs. M/s. Designco, Moradabad & Ors. which is reproduced below: 1
"1. Grievance in this application is encroachment on river Gagan and Ram Ganga at Moradabad. The applicant has mentioned names of M/s Designco, M/s Lohia Brass, M/s Dewan & Sons, M/s C.L. Gupta & Sons, M/s C.L. Gupta & Sons Farm House, Mining Contractor- Shri Mahipal Singh, Tirupati Builders, M/s Sai Creation and M/s Horizon Impex, District Moradabad, U.P. as the encroachers.
2. We find the application to be deficient in relevant particulars. At the same time, there are serious allegations. In these circumstances, instead of straightaway entering upon adjudication of the grievance, we consider it appropriate to direct a joint Committee of District Magistrate Moradabad, Irrigation & Water Resources Department, Moradabad and the State PCB to look into the matter and take further appropriate action, in accordance with law. The State PCB will be the nodal agency for compliance and coordination.
The application is disposed of."
3. Vide order dated 10.05.2022, taking into account the allegation that no action had been taken to remove the encroachments, the Tribunal sought a factual report from the State PCB.
4. The matter was last considered on 25.07.2022 and it was found that there were illegal constructions in the flood plain zone of the river Ganga/Ram Ganga. The Tribunal accordingly directed action against the violators in accordance with Notification dated 07.10.2016 issued by Ministry of Water Resources, River development and Ganga Rejuvenation.
5. The relevant extract from the said order are:-
"3. In response to above, the District Magistrate, Moradabad has filed its report that Writ C. No. 33061 of 2021 has been filed before the Allahabad High Court against order of the Executive Engineer, Irrigation Department dated 30.10.2021, wherein stay has been granted. Illegal constructions have been found by four units. The relevant extracts from the report are:
"Conclusions:-
As per the report of Joint Committee, the irregular construction in flood zone of river Gagan/Ram Ganga has primarily been found by the following units -2
a. `M/S Designco, Lakri Fazalpur. Moradabad (Near the bank of River Gagan).
b. M/S Lohiya Brass Pvt. Ltd., Lakri Fazalpur, Moradabad (Near the bank of River Gagan).
c. M/S Dewan & Sons, Lakri Fazalpur, Moradabad (Near the bank of River Gagan).
d. M/S C.L. Gupta & Sons Farm [louse, Ashiyana, Moradabad (Near the bank of River Ramganga).
Considering the facts. District Magistrate, Moradabad vide letter no 774- Ashu/2022 dated 23.06.2022 has directed to Moradabad Development Authority. Moradabad and Flood Division. U.P. Irrigation Department. Moradabad to take appropriate action against illegal construction in accordance with law. Copy is annexed as Annexure-
17."
4. Thus, it is seen that constructions have been raised on flood plain zone of the Ganga in which case not only the Moradabad Development Authority and the U.P Irrigation Department have to take action but also the State Ganga Committee and District Ganga Committee in terms of para 6 of the River Ganga (Rejuvenation, Protection and management) Authorities Order, 2016.
5. Accordingly, while in case of M/S Designco, Lakri Fazalpur, whose matter is said to be pending before the Allahabad High court, the applicant or any aggrieved party is at liberty to represent their grievance in the said matter, action needs to be taken in respect of other three identified violators i.e M/S Lohiya Brass Pvt. Ltd., M/S Dewan & Sons, and M/S C.L. Gupta & Sons in accordance with Notification dated 07.10.2016 issued by Ministry of Water Resources, River development and Ganga Rejuvenation. The State PCB may also put the alleged violators to notice of the present proceedings to enable the alleged violators to respond to this Tribunal, if so advised.
6. A further action taken report may be filed within one month by the District Magistrate and the State PCB 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."
6. In pursuance of above, further report has been filed by the UPPCB to the effect that MDA has initiated proceedings in the matter. UPPCB has also issued notice to the violators. Relevant extract from the report are:-
"1- D i s tr i c t M a g i s tr a te , M o r ad a b ad h as d i r e c te d v i d e l e t t e r n o . 9 6 0 / N - 1/303/20/General dated 05-08-2022 to Moradabad Development Authority, Moradabad, Nagar Nigam, Moradabad and Flood Division, Irrigation Department, Moradabad to take appropriate action in respect of other three identified violators i.e. M/s Lohiya Brass Pvt. Ltd., M/s Dewan & Sons and M/s C.L. Gupta & Sons in accordance with notification dated 07-10-2016 issued by Ministry of Water 3 Resources, River Development and Ganga Rejuvenation. Apart from that U.P. Pollution Control Board, Moradabad also requested vide letter no. 948/N- 13/303/20/General dated 05-08-2022 to concerned Authorities on above matter. Copies are annexed as Annexure
--1&2.
2- Executive Engineer, Flood Division, Irrigation Department , Moradabad submitted its report vide letter no. 2044/ बाखम/गागन dated 7-9-2022 stating that notice has been issued to the units in compliance of (Commissioner and Secretary, Revenue Board, U.P.) letter no. G532/11-155- रा0आ0 /2021 dated 17-09-2021 and there after District Magistrate, Moradabad issued letter no. 760/ िजम 0भू 0 0 सहा 0 /2021-22 dated 18-9-2021. Further, it was stated that as per provision made in serial no. 5 of Govt. order no. 1417 बी /09-27- िस -2-18 बाढ़ /09 dated 16- 3-2010 the action is required by the Development Authority and Nagar Nigam against violators under relevant section of respective act. Executive Engineer, Flood Division, Irrigation Department , Moradabad also submitted letter 2135/ बाखम/गागन dated 17-9-2022. Copies are annexed as Annexure 3& 4.
3- Moradabad Development Authority, Moradabad submitted its report vide letter no. 1305/ मु 0वी 0 ा 0/ आर 0 बी 0ओ 0/2022-23 dated 13-9-2022. As per report, Moradabad Development Authority, Moradabad informed that litigation has been filed by the department against illegal construction by the units and matter is under consideration. Copy is annexed as Annexure --5.
4- Municipal Corporation, Nagar Nigam, Moradabad submitted its report vide letter no. 634/ स ि / न0िन0मु 0 /2022 dated 19-9-2022, stating that the required action is to be taken by Moradabad Development Authority, Moradabad as well as Flood Division, Irrigation Department , Moradabad for removal of illegal construction. It was also stated that Nagar Nigam, Moradabad will assist to departments by its resources as and when required. Copy is annexed as Annexure --6.
5- U.P. Pollution Control Board, Moradabad has issued notice vide letter no. 1083/N-13/303/2022, 1084/N- 13/303/2022 and 1085/N-13/303 /2022 dated 07-09- 2022 in respect of other three violators to respond their aspect before Hon'ble Tribunal for present proceeding. Copies are annexed as Annexure -- 7, 8 & 9."7
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7. We have considered the above report and heard learned counsel for the applicant and the PPs M/s CL Gupta, Lohia Brass and Dean and sons. Counsel for M/s CL Gupta has filed a copy of order passed by MDA under 4 Uttar Pradesh Urban Planning and Development Act, 1973 for action taken in violation of the said Act which was set aside on 11.11.2022 by the Divisional Commissioner on the ground that the PP was not given opportunity but liberty was given to the MDA to pass further order. Beyond filing the above document no response has been filed by the said PPs inspite of all the opportunity available. It is not a case of violation of natural justice when the PPs know the issue involved is of construction on flood zone of Ganga inter alia in violation of the Ganga Order under the EP Act. Thus, the PPs have failed to show any justification for the illegal constructions inspite of opportunity available.
8. We also find that in terms of order of this Tribunal dated 25.07.2022, illegal construction was to be removed by the Ganga Committee in terms of para 6 of the River Ganga (Rejuvenation, Protection and management) Authorities Order, 2016 which has not been done. Only action taken is under UP Development Act which is different from action directed by the Tribunal.
9. Thus, for protection of environment and consistent with the earlier orders, we have to reiterate our earlier direction for demolition of illegal constructions as per Ganga order, issued under the Environment (Protection) Act, 1986. The compliance may be ensured within one month by the District Magistrate and SSP, Moradabad, in coordination with any other concerned authority. If there is any operative interim order of the High Court or any other higher Court, the action in pursuance of the present order will be consistent with the said order. The State PCB is at liberty to levy and recover compensation for the past violations following due process of law. Similar action may be taken against any other illegal structures in the flood plain area.
5
10. We also note that the matter is also covered by earlier order of the Tribunal dealing with the issue of prevention, control and abatement of pollution of river Ganga in pursuance of directions of the Hon'ble Supreme Court 29.10.20141 and 24.01.2017 transferring proceedings pending before the Hon'ble Supreme Court in CWP No. 3727/1985 to this Tribunal for closer monitoring and sending reports of progress to the Hon'ble Supreme Court every six months. The said matter was last considered on 22.07.2022 in Original Application No. 200/2014, M.C. Mehta vs. Union of India & Ors. in continuation with the earlier order and one of the issues considered was encroachment of the flood plain zone of Ganga. Relevant extract from the said order is reproduced below:-
"14. Significant development on the subject is notification dated 07.10.2016 under Section 3 and other relevant sections of the Environment (Protection) Act, 1986 applicable to States in river Ganga basin, called "The River Ganga (Rejuvenation, Protection and Management) Authorities Order, 2016", issued by the Central Government. It constitutes authorities for taking various measures in relation to river Ganga and matters connected therewith. Principles for rejuvenation, protection and management of river Ganga have been specified. Provisions have been made for prevention, control and abatement of pollution in river Ganga and its tributaries. Under para 12, National Council for Rejuvenation, Protection and Management of River Ganga (National Ganga Council) is constituted in whom superintendence direction and control of management of river Ganga is vested. Further, Empowered Task Force has also been constituted, apart from State Ganga Committees and District Ganga Committees. NMCG is to comply with the directions of the National Ganga Council (NGC) and to implement Ganga Basin Management Plan approved by it, apart from other functions. Principles are laid down for rejuvenation, protection and management of Ganga. E flow is to be maintained. Environmental pollution is to be prevented, controlled and abated. Local bodies cannot discharge sewage in Ganga or its tributaries. Encroachments are to be removed and prevented. Emergency measures are to be taken in case of violations. Safety audit is to be conducted. Over arching powers are conferred on NMCG, including monitoring online, with satellite imagery and other remote sensing technologies as well as physically. Huge funds are allocated for the purpose. Result in terms of water quality and actual treatment of pollutants and other measures are shown by the report dated 15.7.2022 which is hardly encouraging even after six years of the said Order of 2016. There is need to see the extent of success and to consider course correction."1
MC Mehta vs. UOI, (2015) 12 SCC 764 6
11. The above order shows that Ganga Basin Management Plan has been approved by the State Ganga Committee which is to be implemented by the Empowered Task Force and District Ganga Committee of which District Magistrate is the Chairman. Relevant extract from Ganga Order is reproduced below:-
"6. Prevention, control and abatement of environmental pollution in River Ganga and its tributaries.-
(1) & (2)....................xxx.............................xxx.....................xxx (3) No person shall construct any structure, whether permanent or temporary for residential or commercial or industrial or any other purposes in the River Ganga, Bank of River Ganga or its tributaries or active flood plain area of River Ganga or its tributaries:
Provided that in exceptional circumstances like natural calamities or religious events at traditional locations, temporary structures can be raised after prior permission of the National Mission for Clean Ganga acting through the State Ganga Committee and the District Ganga Committee:
Provided further that in case any such construction has been completed, before the commencement of this Order, in the River Bank of River Ganga or its tributaries or active flood plain area of River Ganga or its tributaries, the National Mission for Clean Ganga shall review such constructions so as to examine as to whether such constructions are causing interruption in the continuous flow of water or pollution in River Ganga or its tributaries, and if that be so, it shall cause for removing them."
12. Under para 53 of the order, the District Magistrate is ex-officio Chairperson of the District Ganga Protection Committee. Paras 53 and 55 of the said order are as follows:-
"53. Constitution of District Ganga Protection Committees.- (1) The Central Government shall immediately after the commencement of this Order, in consultation with concerned State Ganga Committee, by notification constitute, in every specified District abutting River Ganga and its tributaries in the States mentioned in paragraph 2, the "District Ganga Committees" for the prevention, control and abatement of environmental pollution in the River Ganga (2) Every District Ganga Committee in each specified District shall consist of the following members, namely:-7
(a) the District Collector in the specified District; - Chairperson, ex-officio;
(b) not more than two nominated representatives from Municipalities and Gram Panchayats of the specified District nominated by the State Government. - Members;
(c) one representative each of the Public Works, Irrigation, Public Health Engineering, and Rural Drinking Water Departments, and State Pollution Control Board working in the specified District abutting River Ganga to be nominated by the District Collector - Member, ex-officio;
(d) two environmentalists associated with River Ganga protection activities and one representative of local industry association in the specified District to be nominated by the District Collector - Members,;
(e) one Divisional Forest Officer of the specified District - Member, ex-officio
(f) one District official to be nominated by the District Collector. - Member;
(2) The District Collector shall be the Chairperson of the District Ganga Committee and the Divisional Forest Officer shall be the Convener of the District Ganga Committee.
(3) The District Ganga Committees shall meet at such times and at such places as the Chairperson of that Committee may decide and exercise such powers and functions as may be conferred under this Order:
Provided that at least one meeting of the District Ganga Committee shall be held every three months.
(4) A non ex-officio member may resign his office by giving notice in writing thereof to the Central Government or to the District Collector concerned, as the case may be, and shall cease to be a member on his resignation being accepted by the Government or the District Collector concerned, as the case may be.
54....................xxx...................................xxx..........................xxx
55. Functions and powers of District Ganga Committees.- (1) Every District Ganga Committee shall discharge functions and exercise powers for rejuvenation, protection, restoration and rehabilitation of River Ganga and its tributaries in each specified District as laid out in paragraph 6 and 7 as per the principles specified in paragraph 4.
(2) In particular, and without prejudice to the generality of the provisions of sub-paragraph (1) for rejuvenation and protection and restoration or rehabilitation of degraded areas abutting River Ganga and its tributaries and subject to other provisions of this Order and rules made thereunder, every District Ganga Committee shall have the following powers and functions in 8 relation to River Ganga and its tributaries abutting in the area in specified District, namely:-
(a) identifying activities which may be threats in the area of specified District abutting the River Ganga for protection of River Ganga and its tributaries or its River bed and making a plan for remedial action and take remedial action in respect thereof;
(b) taking remedial action at its own end for protection of River Ganga and its tributaries or its River bed abutting in the specified District (excluding enforcement of the provisions of this Order)
(c) in the event of its inability to take remedial action, reporting (electronically as well as by sending written communication in hard copy) to the National Mission for Clean Ganga and concerned State Government, the State Ganga Committee, as the case may be, for issue of direction for protection of River Ganga and to formulate appropriate management or remedial actions.
(d) taking suitable administrative and other measures, to give effect to the provisions of this Order so as to prevent the environmental pollution in the River Ganga and its tributaries, not being inconsistent with the provisions of this Order, or any law for the time being in force.
(3) In case, the District Ganga Committee is of the opinion that any contravention has been made of any other law for the time being in force or in respect of provisions of this Order, it shall take appropriate action in accordance with the law for the time being in force.
(4) The District Ganga Committee shall take all such emergency measures as specified in paragraph 7."
13. In view of above, the District Magistrate may take necessary action as per law and file an action taken report in the matter with the Registrar General of this Tribunal by 31.03.2023 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. If necessary, the Registrar General may place the matter before the Bench.
Subject to above, the application is disposed of. 9 A copy of this order be forwarded to Chief Secretary, UP, District Magistrate and SSP, Moradabad and Executive Engineer, Flood Division, Irrigation Department, Moradabad by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM November 23, 2022 M.A. No. 23/2022 & M.A. No. 19/2021 In Original Application No. 303/2020 SN 10