Society For Fast Justice Dahanu vs Chief Officer Dahanu Nagarpalika ... on 25 May, 2022

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National Green Tribunal

Society For Fast Justice Dahanu vs Chief Officer Dahanu Nagarpalika ... on 25 May, 2022

1. Grievance in this application is against unregulated construction in the buffer/floodplain zone of Kankradi River in ecologically fragile area of Dahanu, District Palghar, Maharashtra. The constructions obstruct the flow of the river and have potential for flooding. There is no clear demarcation of blue and red lines.

2. The applicant has stated that Dahanu is on the North-West corner of Maharashtra located at about 120 kms north of Mumbai and is a coastal town. Kainad hills located at the east of Dahanu are at about 12-15km distance. These hills are the birth place of Kankradi River and are its major 1 catchment area. Small streams over the hills come together to form Kankradi River at about 70m above Railway Bridge, located at the North end of the Dahanu Road Railway Station. Dahanu Samta Khadi (creek) is 500 m wide. From Dahanu Arabian sea (west coast) to 8 km east Samta village is south boundary of Dahanu town. This creek is the main source of fishing. Its banks are of rich mangrove eco-systems. Kankradi river ends itself in this Dahanu Khadi. This area of 'Kankradi Dahanu Khadi meet' is very rich place for breeding for certain marine food varieties like crabs, mud skids, etc. Respondent No. 1- Nagar Palika Parishad wanted to widen the river but because of encroachments it is not found possible. Residential societies including Respondent No. 5, Jades Constructions, 90 Mahaveer Compound, Bhandarkar Road, Matunga, Mumbai - 400019, has been given permission to raise constructions in the buffer zone of the river, wrongly treating the river as a stream.

Procedural History - orders of the Tribunal and response of non applicants

3. The application was filed on 20.03.2017. It came up for hearing on 24.04.2017. The Tribunal issued notice to the Irrigation Department, Collector, Palghar, Dahanu Nagar Palika Parishad as well as Jades Constructions, Mumbai, the Project Proponent (PP)), who have filed their respective replies.

4. While the PP and Nagar Palika have disputed the alleged illegality in constructions, the stand of the Irrigation Department is that constructions have resulted in narrowing the river breadth. Relevant extract from the reply is as follows:-

"5. I say that a considerable length of Kankradi river in Dahanu Nagar Council Area is covered with compound Walls and protection walls of Residential Housing Schemes. This resulted in narrowing the river breadth i.e. natural waterway. This may 2 be the reason of severe flood. However, the Kankradi River is passing through Dahanu Municipal Corporation Area; hence exact assessment of flood for making Blue Line & Red Line will be under taken by the present respondent immediately after receipt of request for the same along with necessary funds are being made available by the Respondent No.1.

6. I say & submit that, Water Resources Department is ready to carry out necessary detailed flood study for marking Blue Line & Red Line for Dahanu Nagar Council Area as per their requirements & demand as per the guidelines issued from time to time in that behalf. Hence this affidavit."

Consideration, finding and final order

5. We have heard learned Counsel for the parties. From the stand of the Irrigation Department, it is clear that there are constructions in the buffer zone which has not been specifically demarcated as blue and red lines in the Dahanu Nagar Council Area.

6. It cannot be disputed that the Flood Plain/Buffer Zone of a river has significant environmental functions and needs to be protected. It has been subject matter of decisions of the Hon'ble Supreme Court and this Tribunal, apart from Master Plans prepared by the Town Development Authorities. In the State of Maharashtra, there are Government orders for demarcation of blue/red lines for protection of flood plains. We extract below some of the earlier discussion on the subject in another matter dated 15.12.2020 in O.A. No. 22/2020 (EZ), Dilip Kumar Samantaray Vs. State of Odisha Board & Ors.:-

"1to7.....................xxx..................................xxx.....................xxx.

8. There does not appear to be any central legislation to regulate the flood plains, except a notification dated 07.10.2016 issued by the Ministry of Water Resources, River Development, and Ganga Rejuvenation, with respect to Ganga river, under the Environment (Protection) Act, 1986, prohibiting any construction in the active floodplain area of river Ganga or its tributaries. The Union Water Resources Ministry circulated a model Bill on the subject in 1975 but the same did not fructify into law. There are some State Acts like Manipur Flood Zoning Act, 1978 and the Uttarakhand Flood Plain Zoning Act, 2012. In the State of Maharashtra, there are norms for demarcating regulatory and prohibitory zones in the 3 floodplains of the rivers.1 Various States have taken their own legislative/administrative measures to regulate and prohibit activities in the floodplains. There are guidelines by some other States also.2 There are also norms for no development zone, restricted zone in the floodplains of the rivers in Gujarat as referred to in order of this Tribunal dated 21.09.2020 in OA 50/2018(WZ), Nav Yuva Sanghatan & Ors. vs. The Secretary, Narmada, Water Resources, Water Supply & Kalpsar Department & Ors.

9. The Wetlands (Conservation and Management) Rules, 2017 prohibit any permanent constructions within 50 meters of the Wetlands, from the mean high flood level in the past 10 years from the commencement of the rules. There are also similar restrictions in certain Master Plans like the Revised Master Plan of Bangalore referred to in Mantri Techzone Pvt. Ltd. vs. Forward Foundation & Ors. (2019) SCC Online SC 322.restricting constructions in catchment area of the lakes. We are also not aware of the legislative and administrative measures in the State of Odisha on the subject of regulating and prohibiting activities in the floodplain zones of the rivers in the State, but such an exercise appears to be necessary to give effect to the precautionery principle of environmental law, required to be enforced by this Tribunal under section 20 of the NGT Act, 2010.

10. While considering the issue of rejuvenation of identified polluted river stretches, (including Mahanadi, which is one of such polluted river stretches) the Tribunal directed that each State must constitute a River Rejuvenation Committee (RRC) to prepare appropriate action plan and execute the same. The action plan needs to include a plan for protection of floodplains.3

11. There are also articles in the media dealing with the subject. We may only refer to some as follows:

i. Article titled "why floodplains need to be protected" dated 12.10.20184 stating as follows:

"Damage to floodplains harms the riverine ecosystem, lessens groundwater recharge capacity and poses 1 Guidelines issued by the Irrigation Department of Maharashtra on 21.09.1989 as amended in the year 2018 and order of this Tribunal dated 11.07.2013 in OA 2/2013, Sarang Yadwadkar v. Commissioner, Pune Municipal Corporation, reported in 2013(1) All India NGT (Delhi) 299.

i. Also see order of the Allahabad High Court as reported in news article published on 04.01.2019 in The Times of India under the heading "No construction within 500 metre of high flood level: HC" authored by Shri Rajesh Kumar Pandey (https://m.timesofindia.com/city/allahabad/no-construction-within-500-metre-of-high- flood-level-hc/amp_articleshow/67379839.cms) ii. News article published on 29.09.2016 in The Hindu under the heading "Building along the coast" authored by Shri G. Shyam Sundar (https://www.thehindu.com/life-and- style/homes-and-gardens/Building-along-the-coast/article14644372.ece).

See order dated 21.09.2020 in OA No. 673/2018, In Re: News item published in "The Hindu"

authored by Shir Jacob Koshy, titled "More river stretches are now critically polluted: CPCB".

Author: Amita Bhaduri : https://www.indiawaterportal.org/articles/sad-state- floodplains#:~:text=Damage%20to%20floodplains%20harms%20the,poses%20threats%20of %20flash%20floods.&text=The%20lack%20of%20regulation%20and,the%20severity%20of% 20the%20damage.

threats of flash floods. Enforcement of floodplain zoning regulation is a must to avert floods.

The Kerala flood of 2018....

xxx xxx xxx The lack of regulation and enforcement of land use in the floodplains added to the severity of the damage.

xxx xxx xxx Floodplains provide the space for rivers to spread their waters. When this space is missing due to encroachments, the river surges up and creates destruction.

"The lack of protection of river floodplains from damaging impacts like encroachment and diversion for 'developmental projects' is a tragedy that affects both the river as well as those who encroach it adversely. The river suffers as it is unable to occupy and transport flood waters downstream during high rainfall events (monsoon in particular). It is unable to recharge aquifers, wet the lands along its banks or provide life-sustaining conditions to plant and animal habitats along the river margins and banks. .....

Damage to floodplains harms the riverine ecosystem, lessens groundwater recharge capacity and poses threats of flash floods. "People too suffer an immense loss of life and property, including loss of public infrastructure like bridges, roads, schools etc., during high floods,".

ii. Article from Wikipedia under the heading "Floodplain"5, it is stated:

"xxx xxx xxx Floodplains can support particularly rich ecosystems, both in quantity and diversity.

xxx xxx xxx A floodplain can contain 100 or even 1,000 times as many species as a river. Wetting of the floodplain soil releases an immediate surge of nutrients: those left over from the last flood, and those that result from the rapid decomposition of organic matter that has accumulated since then. Microscopic organisms thrive and larger species enter a rapid breeding cycle. Opportunistic feeders (particularly birds) move in to take advantage. The production of nutrients peaks and falls away quickly; however, the surge of new growth endures for some time.

https://en.wikipedia.org/wiki/Floodplain 5 This makes floodplains particularly valuable for agriculture."

12. The Hon'ble Supreme Court, vide judgment dated 30.07.2009 in D.D.A. vs. Rajendra Singh, 2009 (8) SCC 582, referred to the definition of floodplain in the dictionary as follows:

" xxx xxx xxx

24. Though there is no statutory definition for "riverbed" and "floodplain" from the statute, the dictionary meaning of the same is as under:

"Riverbed" has been defined as the area over which the river flows. In the Thames Conservators Case [1897] 2 QB 335 at 337 it was held that the word riverbed denotes that portion of the river which in the ordinary or regular course of nature is covered by the waters of the river.

The "bed of the river" was defined as the area covered by the river and is the space sub-adjacent to the river over which it flows between the banks. It is the space between the banks occupied by the river at its fullest flow.

The Black's Law Dictionary, 6th Edition (Pg 154) describes a river bed as the hollow channel of a water course; the depression between the banks worn by the regular and usual flow of water; The land which is covered by the water in its ordinary low stage; The area extending between the opposing banks measured from the foot of the bank from the top of the water at its ordinary stage. P. Ramanatha Aiyer's Advanced Law Lexicon, Volume 4, 2005 Edition (Pg. 4157-4158) has described the bed of a river as the space contained between the banks; river bank in turn has been defined in the same law lexicon as the boundaries of a river throughout its width when the water flows to its maximum quantity.

"Floodplain'" - Land adjacent to rivers, which, because of its level topography, floods when river overflows. [Black's Law dictionary, 6th Edn., p.641].

It is also been defined as 'a low, flat area in either side of a river that can accommodate large amounts of water during a flood, lessening flood damage further downstream' [Fredd Michaels, 'Dictionary of Environment Studies']

13. The Tribunal while considering restoration measures for Yamuna and Ganga rivers dealt with the issue of floodplains. Vide judgement dated 13.01.2015 in OA No. 6/2012 and OA No. 6 300/2013, Manoj Misra vs. Union of India & Ors. reported in 2015 ALL (I) NGT REPORTER (1) (DELHI) 139 in the context of river Yamuna, it was observed:

"81. Floodplain zoning has been accepted as an important nonstructural strategy for flood management. The basic concept of floodplain zoning is to regulate land use of floodplains to restrict damage caused due to floods. The floodplain zoning, therefore, aims at determination of locations so that flood damages are reduced to minimum. A very restrictive activity can be allowed in that area. It is not only to protect the areas from damage resulting from floods and failure of water protective measures, but is also useful in reducing the damage caused due to drainage congestion, particularly in urban areas. The Commission claims to have prepared a model bill relating to floodplain zoning. This model bill provides for different categories based of priorities in floodplain.

82. xxx xxx xxx

83. The floodplain must be demarcated, kept free from any permanent developments and wherever it is possible, it should be restored to its original position.

84. Keeping in view the fact that various developments have taken on the floodplain of river Yamuna and to a larger extent they have adversely affected the river flow, its ecology and bio-diversity, we would direct that floodplain zoning should be taken with reference to the flood of once in 25 years, as against other suggested figure of more years. It is important to demarcate the floodplain on this basis immediately, to protect it from any encroachments or development activities, which has already discussed and requested by the High Powered Committee, would adversely affect the ecology and environment.

85. Thus, it is necessary to call upon the authorities to demarcate the floodplain for the flood of once in 25 years and to prohibit any kind of development activity in the area in question. Furthermore, the Committee should consider restoration of the area and wherever necessary, even demolish the properties, which are likely to be dangerously exposed to the flood and are even affecting the ecology and bio-diversity and flow of the river.

xxx xxx xxx

89. Subject to any law coming into force, we have already stated that flood of once in 25 years would be considered for defining and demarcating the flood plain. No development/construction activity, except that is stated herein, would be permitted in the Flood Plain of River Yamuna. No authority or person before us has even taken up the plea that why development/construction activity cannot be carried on in other parts of NCR, Delhi. As of 7 now, sufficient land is available, may it is expensive, but that cannot be a ground for destroying the ecology, environment and biodiversity of River Yamuna of Delhi. The result of indiscriminate, unregulated and uncontrolled development activity are widely visible and felt by each and every one in Delhi. It would not only be unwise, but may prove fatal, if such approach is continued any further."

14. Vide judgement dated 13.07.2017 in OA No. 200/2014, M.C. Mehta vs. Union of India & Ors. reported in 2017 NGTR (3) PB 1 in the context of river Ganga, it was observed:

"xxx xxx xxx

142. Being an integral part of the river, floodplain of the river requires protection. Floodplains play significant role in maintaining the bio-diversity and aquatic life of the river. It's significance cannot be overlooked, in terms of environment and ecology. There are numerous dimensions involved while identifying the floodplains. It is required to categorize it into different zones, namely, No Development Zone, Regulated Zone and a Free Zone for development. The principle of Sustainable Development itself justifies the classification of floodplains into such zones for protecting the river. This Tribunal in the case of Manoj Misra (supra) had the occasion to deal with the concept of floodplain, its zoning and management."

xxx xxx xxx During the course of proceedings before the Tribunal, the stakeholders also deliberated in favour of demarcation of floodplain of river Ganga, for ensuring protection and maintenance of the health of the river. The above stated precedent of the Tribunal also has its definite reference in the Notification dated 7th October, 2016 issued by the MoWR. In sub-clause (ix) of clause 4(v) of the Notification which relates to Principles to be followed for rejuvenation, protection and management of river Ganga, states that the bank of river Ganga and its floodplains shall be a construction free zone to reduce sources of pollution, pressure on floodplains and to maintain its natural groundwater recharging properties. This clearly demonstrates that fixation of the floodplain and its demarcation is one of the principal projects for cleaning and rejuvenation of river Ganga, amongst all the stakeholders. As already stated, the project at priority is to clean river Ganga and not to diversify financial resources to the subsidiary function of cleaning innumerable drains in the city. There are innumerable factors consequential to pollution of floodplains of the river. Indiscriminate and unplanned constructions or developments, carrying on of unauthorized and impermissible activities, dumping of municipal solid waste, bio-medical waste and E-

waste in and around the floodplains, are some of the main contributors of pollution in river Ganga.

xxx xxx xxx

182. ... The constitutional duty upon the citizens is to protect and improve the nature, environment including forests, rivers, wildlife and to have compassion for living creatures. No industry much less the State or its instrumentality can be permitted to indulge in pollution of natural resources particularly the river for economic benefits. It is a settled principle of law that the Polluter Pays Principle and Precautionary Principle have to be read into the Principle of Sustainable Development. Normally, they are applied collectively. Restrictions imposed are inbuilt fact of sustainable developments and that itself serves the cause of Intergenerational Equity. To protect and improve the environment has a direct nexus to the quality of human life, thus, all environmental principles must come to the aid of the Courts and Tribunals for furthering the cause of Sustainable Development. In the case of 'Vellore Citizens Welfare Forum vs. Union of India' 1996 5 SCC 647 held with approval:

"The concept of development to say that the traditional concept that development and ecology are opposed to each other is no longer acceptable. Sustainable Development is the answer i.e., development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. It is intended to improve the quality of human life, while living within the carrying capacity of the supporting ecosystems. The 'Precautionary' Principle and 'Polluter Pays' Principles were, therefore, said to be the essential features of the Principle of Sustainable Development."

      xxx                              xxx                  xxx
      182.1        xxx                 xxx                  xxx

7. Till the demarcation of the floodplains and identification of permissible and non-permissible activities by the State Government of this judgement, we direct that 100 meters from the edge of the river would be treated as no development/construction zone in Segment-B of Phase-I (Haridwar to Unnao, Kanpur)."

15. In view of averments made by the applicant that the river beds is proposed to be affected by setting up of the Medical College or other permanent constructions in the floodplain of the river, there is need to prevent irreversible damage to the riverine ecology by enforcing the applicable rules, if any. If there are no rules, appropriate norms need to be laid down considering such norms in other similar situations in consultation with the experts."

7. As already noted, as per Irrigation Department, there is no demarcation and constructions appear to be in prohibited zone. Thus, demarcation needs to be done and flood plains/buffer zones protected against encroachments. This needs to be done not only in Dhahanu but at all other places in the State wherever such demarcations have not been done.

8. Accordingly, we direct constitution of a joint Committee of Principal Secretaries, Water Resources, Environment and Development Department, Maharashtra to oversee this exercise in a time bound manner. The Secretary, Environment will be the nodal agency for compliance and coordination. The joint Committee may hold its first meeting within two weeks and prepare an action plan for demarcation of blue/red lines in the buffer zone of the rivers in the State, wherever such exercise has not been done or needs updation. The Committee may also review steps for protection of flood plain zones and removing of illegal constructions to give effect to the principle of 'Sustainable Development'. The proceedings in the matter be finalized preferably within three months and uploaded on the website of Water Resources Department of the State. The joint Committee will be free to interact with concerned District Magistrates or any other Experts/individuals/Departments. If required, National Institute of Hydrology, Roorkee (through its Regional Office) or any other Agency may be associated for ground level demarcation for further action.

The application is disposed of accordingly.

It will be open to any aggrieved party to move this Tribunal with any surviving grievance, in light of decisions/action of the joint Committee.

A copy of this order be forwarded to Principal Secretaries, Water Resources, Environment and Development Department, Maharashtra by e-mail for compliance.

Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dinesh Kumar Singh, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM May 25, 2022 Original Application No. 48/2017/WZ SN 11

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