National Green Tribunal
Shri Hazi Arif vs State Of Uttar Pradesh on 10 February, 2023
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 04 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Hybrid Mode)
Original Application No. 16/2014
(M.A. No. 63/2022)
Shri Hazi Ariff Applicant
Versus
State of U.P. & Ors. Respondent(s)
Date of hearing: 10.02.2023
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. R. Venkataraman, Advocate
Mr. Raj Panjwani, Senior Advocate (Amicus Curiae) with Ms. Esha
Dutta, Advocate
Respondent: Mr. D.N. Goburdhun, Senior Advocate with Mr. Aakash Kamra,
Advocate for NCRPB
Mr. Daleep Dhyani, Advocate for UPPCB
Mr. Sandeep Singh, Advocate for the State of UP
Mr. Tanmay Arora, Advocate for M/s Tata Steel Limited
ORDER
1. The issue for consideration is legality of constructions in the bed and within the buffer zone (12 meters from the edge of the drain1) of Sahibabad Drain No. 1 in Ghaziabad by private respondents herein and failure of the Ghaziabad Nagar Nigam to prevent discharge of untreated sewage and waste in the said drain. Infact, the matter stands disposed of vide order dated 13.5.2022 except for limited issue for which further consideration is required today. We may give brief background of the matter.
1In terms of Functional Plan on Drainage for National Capital Region 1
2. At the outset we may mention that the matter is to be examined in the light of statutory mandate under section 24(1)(b) of the Water (Prevention and Control of Pollution) Act, 1974 (Water Act) and judgments of Hon'ble Supreme Court inter alia in MC Mehta vs. Kamal Nath, (1997) 1 SCC 388 laying down that flow of water could not be obstructed by permitting any commercial construction by the State and the State has to act as trustee for protecting environment, Vellore Citizens Forum (1996) 5 SCC 647 to the effect that sustainable development is part of Indian common law, Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors.
(2019) 18 SCC 494 (para 44,45 and 52) to the effect that constructions could be prohibited in buffer zones of drains in view of sections 15 and 33 of the NGT Act and requirements for protection of environment.
3. As the record shows, the matter was earlier considered inter alia by orders dated 7.10.2016 and 26.2.2020. The Hon'ble Supreme Court vide order dated 22.10.2021 set aside the said orders and remanded the matter for fresh consideration, giving further opportunity to the alleged encroachers/violators.
4. Accordingly, the Tribunal took up the matter for consideration in terms of order of Hon'ble Supreme Court dated 22.10.2021 and disposed of the same vide order dated 13.5.2022.
5. As order dated 13.5.2022 would show, the Tribunal considered the report dated 12.4.2014 by the Committee constituted by the Tribunal. It also referred to earlier order dated 7.10.2016 to the effect that there was encroachment of the buffer zone of the drain by various establishments, with the permission of Nagar Nigam which permission was against section 24(1)(b) of the Water Act prohibiting obstruction of flow of water and thus the constructions were liable to be removed. The Tribunal considered the 2 submissions that there was no illegality in covering the drain and raising constructions in the buffer zone and rejected the said objections. It was held that the buffer zone of the drain was required to be left free. Reference was also made to the provision incorporated in the plan prepared by the National Capital Region (NCR) Planning Board under the NCR Planning Board Act, 1985. Reference was made to observations of the Hon'ble Supreme Court in Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors.
(2019) 18 SCC 494 that restrictions could be placed against constructions in buffer zone of a drain in the interest of environment even beyond a State statute in view of entry 13 of List I of the Constitution and sections 15 and 33 of the NGT Act. The Tribunal held that public trust doctrine required the State (including the Nagar Nigam) act as a trustee and also to follow the mandate of section 24 of the Water Act to prevent obstruction of flow of water. Reliance was also placed on judgment of the Hon'ble Supreme Court in M.I. Builders (P) Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464 (Paras 45 to 50). The Tribunal also referred to recommendations of the Study Group of the NCR Planning Board which defined the buffer zone of the drains in NCR for efficient drainage system. The Expert Committee made specific recommendations against covering of drains and leaving of buffer zone around the water bodies and drains. Inspite of this finding, the Tribunal taking a pragmatic view, instead of straightaway directing demolition of illegal constructions, obstructing flow of the drain and occupying its buffer zone, directed exploring of a viable alternative. The Tribunal constituted a joint Committee for the purpose. Some extracts from the order dated 13.05.2022 are reproduced below for ready reference:
"Finding & directions
22. From the above narrative, it is clear that part of the drain has been covered and constructions raised within the buffer zone from the edge of the drain. This obstructs flow and maintenance of the drain against statutory mandate of section 24 of the Water Act as 3 well as plan of the NCR Board. Further, the drain is polluted. Some of the Respondents have claimed permission for such covering while many coverings/constructions are without such permission. The objections do not in any manner show how such constructions/covering of drain is legally sustainable in view of Water Act, NCR Act and other environmental consideration which cannot be overridden merely on the basis of any permission of the Nagar Nigam or property rights of such violators. There is no proposal for remedial action. Recommendations of the fact finding/expert Committees have thus to be accepted.
23. We find that covering of a drain obstructs flow of the river and is not environmentally permissible with or without permission of a Nagar Nigam. Not only drain, but reasonable buffer area from its edge has to be left free as held in Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors. (2019) 18 SCC 494 (Para 21). Preferably such buffer zone should be covered by dense forest. Section 24(1)(b) of the Water Act prohibits any obstruction of the flow of water of a stream which may add to pollution. 'Stream' is defined under Section 2(j) to include a water course, whether flowing or dry. It is, thus, clear that storm water drain falls in the definition of 'stream', whether man made or natural. Covering of the drain and constructions affect the flow and drainage. In Mantri Techzone, supra, the Hon'ble Supreme Court upheld the directions of this Tribunal to maintain buffer zone on all drains - primary, secondary and tertiary. Some of the observations therein are:
"xxx .....................................xxx..............................xxx
21. It is evident from the above orders that the Tribunal had granted opportunity to the parties to address it "limited question", as aforementioned. The Tribunal after hearing the parties passed an order dated 04.05.2016 as under:
" General Conditions or directions:
1. In view of our discussion in the main Judgment, we are of the considered view that the fixation of distance from water bodies (lakes and Rajkalewas) suffers from the inbuilt contradiction, legal infirmity and is without any scientific justification. The RMP - 2015 provides 50m from middle of the Rajkalewas as buffer zone in the case of primary Rajkalewas, 25m in the case of secondary Rajkulewas and 15m in the tertiary Rajkulewas in contradiction to the 30m in the case of lake which is certainly much bigger water body and its utility as a water body/wetland is well known certainly part of wet land. Thus, we direct that the distance in the case of Respondents Nos. 9 and 10 from Rajkulewas, Waterbodies and wetlands shall be maintained as below:-
(i) In the case of Lakes, 75m from the periphery of water body to be maintained as green belt and buffer zone for all the existing water bodies i.e. lakes/wetlands.
(ii) 50m from the edge of the primary Rajkulewas.
(iii) 35m from the edges in the case of secondary Rajkulewas 4
(iv) 25m from the edges in the case of tertiary Rajkulewas This buffer/green zone would be treated as no construction zone for all intent and purposes. This is absolutely essential for the purposes of sustainable development particularly keeping in mind the ecology and environment of the areas in question.
All the offending constructions raised by Respondents Nos. 9 and 10 of any kind including boundary wall shall be demolished which falls within such areas. Wherever necessary dredging operations are required, the same should be carried out to restore the original capacity of the water spread area and/or wetlands. Not only the existing construction would be removed but also none of these Respondents - Project Proponent would be permitted to raise any construction in this zone.
All authorities particularly Lake development Authority shall carry out this operation in respect of all the water bodies/lakes of Bangalore.
xxx .....................................xxx..............................xxx
24. It was also argued that buffer zone laid down by the NGT is substantially higher as compared to buffer zone which is required to be maintained as per the Revised Master Plan, 2015 issued on 22.06.2007. This is contrary to the Karnataka Town and Country Planning Act, 1961 (for short 'the Planning Act').
xxx ...........................................xxx.................................xxx
47. Section 33 of the Act provides an overriding effect to the provisions of the Act over anything inconsistent contained in any other law or in any instrument having effect by virtue of law other than this Act. This gives the Tribunal overriding powers over anything inconsistent contained in the KIAD Act, Planning Act, Karnataka Municipal Corporations Act, 1976 ("KMC Act"); and the Revised Master Plan of Bengaluru, 2015 ("RMP"). A Central legislation enacted under Entry 13 of List I Schedule VII of the Constitution of India will have the overriding effect over State legislations. The corollary is that the Tribunal while providing for restoration of environment in an area, can specify buffer zones around specific lakes & water bodies in contradiction with zoning regulations under these statutes or the RMP."
24. Mere fact that the permission has been granted by the GNN cannot be of any consequence to remedy such illegality. It is well settled that protecting and maintaining drains is covered by the doctrine of public trust under which certain environmental assets vest in the people. The State has to act as a trustee. Storm water drain has important ecological functions in augmenting water supply. Discharge of untreated sewage in such drains is prohibited under the Water Act. So is obstructing its flow. The Nagar Nigam is thus not only under an obligation to prevent discharge of any pollutant into 5 the drains (whether natural or manmade) but also prevent impeding its flow. In view of section 24 of the Water Act, it is not possible to accept that the Nagar Nigam can, in exercise of its contract making power or authority responsible for maintaining the drain, allow either impeding of flow or polluting of the drain. The Nagar Nigam is to act as a trustee in respect of the drain. The powers of the Nagar Nigam are not unlimited so as to either by itself or through anyone else violate the mandate of the Water Act. Reference may inter-alia be made to M.I. Builders (P) Ltd. v. Radhey Shyam Sahu (1999) 6 SCC 464 (Paras 45 to 50). Relevant observations are:
"xxx ..........................................xxx..........................xxx
50. ..... The Mahapalika is the trustee for the proper management of the park. When the true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort case 2. Public trust doctrine is part of Indian law. In that case the respondent who had constructed a motel located at the bank of River Beas interfered with the natural flow of the river. This Court said (at SCC p. 413, para 35) that the issue presented in that case illustrated "the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsivities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered in violate to change".
51. In the treatise Environmental Law and Policy: Nature, Law, and Society by Plater Abrams Goldfarb (American Casebook Series, 1992) under the Chapter on Fundamental Environmental Rights, in Section 1 [The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that "long ago there developed in the law of the Roman Empire a legal theory known as the 'doctrine of the public trust' ". In America public trust doctrine was applied to public properties, such as shore lands and parks. As to how that doctrine works it was stated:
"The scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests 'like the air and the sea' have such importance to the citizenry as a whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is the principal purpose of a Government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit...."
With reference to a decision in Illinois Central Railroad Co. v. Illinois3 it was stated that "the Court articulated in that case the principle that has become the central substantive thought in public mist litigation. When a 2 M.C. Mehta v. Kamal nath, (1997) 1 SCC 388 3 146 US 387: 36 Led 1018 (1892) 6 State holds a resource which is available for the free use of the general public, a court will look with considerable scepticism upon any governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private parties".
This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution."
25. Accordingly, on admitted facts and even after considering all objections of the PP, we conclude that constructions on the drain and its buffer zone either with or without permission of the Nagar Nigam are illegal. Buffer zone has to be fixed either by the authorities or may be determined by the Tribunal. In the present case, buffer zone stands defined by the NCR Planning Board, Ministry of Urban Development, Govt. of India, which applies to the present case.
Functional Plan on Drainage for National Capital Region
26. NCR Planning Board, Ministry of Urban Development, Govt. of India in its meeting held on 28.04.2016 approved Functional Plan on Drainage for National Capital Region (NCR)4. The issues considered in the said plan include protection of natural drainage system and allied issues. The plan has been prepared in the light of recommendations of a study group under the chairmanship of Engineer-in-Chief, Department of Irrigation, Govt. of Haryana with the Chief Regional Planner, NCRPB as the co-chairman. Other members of the Study Group includes Director, Central Water Commission (CWC), Govt. of India; Chief Engineers of Deptt. of Irrigation of the NCR participating States, U.P. Jal Nigam, Delhi Jal Board; Chief Town Planners/Chief Co-ordinator Planners of the NCR participating States, etc. The plan has examined various aspects having impact on the drainage system of an area, such as geology, geomorphology, physical features, hydro-meteorology as well as the existing drainage system of various subregions, pollution, etc., besides studying various norms & standards e.g. design criteria of drainage system in the participating States, CPHEEO norms, recommendations by National Disaster Management Authority (NDMA) on Drainage, etc. In order to ensure an efficient drainage system in NCR, the Functional Plan has given important recommendations on protection of natural drainage system; promotion of recreational use along drainage channels; preparation of Master Plan of inter-state regional drainage and for individual cities/towns; segregation of sewage and drainage, etc. Some of the discussion in the report is quoted below:
"xxx ..........................................xxx.............................xxx 8.2.4 Encroachment on Natural Drainage Channels in Urban Areas Natural streams and watercourses have formed over thousands of years due to the forces of flowing water in the respective watersheds. Habitations started growing into towns and cities alongside rivers and watercourses. As a result of this, the flow of water has increased in proportion to the urbanization of the 4 http://ncrpb.nic.in/pdf_files/FunctionalPlanondriangeforNCR.pdf 7 watersheds. Ideally, the natural drains should have been widened (similar to road widening for increased traffic) to accommodate the higher flows of storm water. But on the contrary, there have been large scale encroachments on the natural drains and the river flood plains. Consequently the capacity of the natural drains has decreased, resulting in flooding.
Generally the drains and linear patch of land on either side of the drain are neglected due to foul smell and filthy look due to drain. Because of this reason the land value along drain is lower compared to other lands in the city. Local authorities also neglect the nallah land and its surroundings because this land does not provide any source of income to them. The negligence by local authorities provides an opportunity for the encroachers to carry out construction activities on the lands along the nallahs. The encroachment also reduces the effective width of the drain, which further aggravates the problem in monsoon.
xxx .............................................xxx.............................xxx
iv) Covering of Drains/Construction over the Drainage Channels A new phenomenon has been observed that in urban areas drains and natural nallahs are covered for urban activities use mainly for transportation and commercial activities due to scarcity of land in the cities. The covering of drains poses difficulty in cleaning and leads to reduction in the carrying capacity of the drains."
xxx ..........................................xxx.............................xxx
vi) Silting of Drains During the rain the velocity of water is high. This high speed flowing water washes the earth and carries with it soil, leaves, wood logs, dead bodies etc. The soil carrying capacity of water decreases with the reduction in velocity of water. After reduction in velocity of water, floodwater leaves behind this material in the drain. This reduces the carrying capacity of Drain. And to carry the same quantity of water wider drain is required. Otherwise the water spread (flooding) takes place. To maintain the same carrying capacity in a limited width, the drain need to be cleaned periodically.
xxx ..........................................xxx.............................xxx
(i) Mixing of Sewage and Drainage Storm water drainage is meant to carry storm water (rain water) or any other clean surface water. It is fundamentally neither suitable nor designed for carrying sewage or industrial wastewater or even septic tank effluent. Even the effluent from the sewage treatment plant cannot be discharged into drain unless it meets the norms set by the Bureau of Indian Standards (BIS) code and the Central Pollution Control Board. In urban areas 8 it is desirable to have separate system for carrying the sewage and storm water. In accordance with this principle in cities, the drainage and sewerage systems are provided separately. The problem arises due to blockage in sewerage system resulting the back flow in houses and in nearby areas. In order to avoid back flow and immediate relief is given by puncturing the sewerage line and diverting the sewage to nearby drains. Thus in urban areas the drains also serves as a substitute to sewerage system, for which the drains are not designed. The raw sewage mixed with storm water directly flow to the major drains and ultimately to the rivers cause serious water pollution in rivers which are the major source of drinking water of supply effects the aquatic life. There is a need to plan and construct separate sewerage and drainage system and necessary measures may be taken so that sewage are not punctured during floods and drained into the drains.
xxx ..........................................xxx.............................xxx "8.3.4 Buffer Along/Around Water Bodies Expert Committee constituted by Ministry of Home Affairs, GOI had proposed amendments to Rules and Bylaws, relating to Layout approvals and Building Permissions, to address disaster management issues. The following recommendations of the Expert Committee relating to restrictions of building activity in the vicinity of areas may be adopted which will help in conservation of water bodies and prevent them from pollution:
The water bodies and watercourses be maintained as recreational/green buffer zone and no building activity other than recreational use be carried out within;
i) 100 m from the river edge outside Municipal Corporation /Municipal limits and 50 m within Municipal Corporation /Municipal limits. No permanent construction be permitted within the buffer zone.
ii) 50 m. from the boundary of lakes of surface area for 10 ha. and above,
iii) 30 m. from the boundary of lakes of an area of less than 10 ha/ponds/tank bed lands
iv) 12 m. from boundary of major canal, streams nallahs, canals, etc."
xxx ..........................................xxx.............................xxx 8.3.10 Regulation for Covering of Drain In urban areas drains run along the roads and public is allowed to cover drains in front of their entrances for access from roads. It has been observed that the drains are covered along the property boundary especially in the commercial property. This results into covering of drains for a longer distance and cleaning becomes difficult which ultimately leads to blockage of drain and flooding on roads. A standard design for the drain for removable cover at regular interval should be incorporated in building byelaws so that the above problem can be avoided. It should be 9 checked by the agency while granting building permission or at the time of providing occupancy certificate. A provision for recovering the demolition costs from the property owners, if any, should be integral part of Bye laws.
It is recommended that the practice of covering the drains for construction of roads should be stopped. Even the bridge/elevated road running over the drain along the alignment of the drain should also be discouraged as pillars obstruct the flow and movement of cleaning machines/ equipment's."
27. Even though the Hon'ble Supreme Court in Mantri Techzone, supra, has approved larger buffer zones ranging from 25 meters to 50 meters from the edge of the drain (depending upon size of the drain), the buffer zone laid down by the NCR Planning Board which is lesser area, must be followed in the NCR, which includes Ghaziabad. Thus, all constructions within the buffer zone of 12 meters from the edge of any drain have to be held illegal and liable to be removed. This will include constructions raised by the project proponents who have filed objections before this Tribunal. No further construction can be allowed in the buffer zone. Preferably, it should be covered by forest. There can be no estoppel against law and mere fact of construction having already been made can be no defence to need for protection of environment in the larger interest of the society.
28. However, in the peculiar facts and circumstances, we are not averse to exploring viable alternative such as laying of a proper sewer line, enabling pollution and obstruction free flow of the storm water drain. If any such plan is found viable and prepared with cost being recovered entirely or partly from the PPs or any other violators /beneficiaries within a period of one year, the demolition can be reconsidered, though not an ideal situation. Thus, while holding and directing demolition of illegal constructions, we leave it open to consider a viable alternative by a Joint Committee headed by the Member Secretary, NCR Planning Board, Ministry of Urban Development, GoI with nominee of Ministry of Jal Shakti (MoJS) not below the rank of Joint Secretary, Additional Chief Secretary, Urban Development, UP Commissioner, GNN, District Magistrate, Ghaziabad and UP PCB as members, with Additional Chief Secretary, Urban Development, UP being the nodal agency for coordination and compliance. Meeting of the Committee may be held within one month and its interim report prepared within two months thereafter. In case it is found that a sewer line can be duly constructed, enabling pollution and obstruction free flow of storm water drain, with or without contribution or such private parties, a report be filed within four months. The affected parties are free to represent to concerned authorities for such consideration offering the full or part of the cost involved. The Committee is free to meet online or otherwise and associate any other individual/department/expert.
29. In case option suggested is not found workable, all coverings of drain and constructions within buffer zone of the drain may be demolished after four months and drain with buffer zones maintained free of pollution and covering/encroachments. This will be the responsibility of the Commissioner, GNN, District Magistrate, Ghaziabad and SSP, Ghaziabad. Needless to say, that in case if an 10 alternative is found viable, the Tribunal may pass further order considering the report of the committee.
Directions
30. To sum-up, our directions are:
(i) All constructions/encroachments in the bed and 12 meter buffer zone from the edge of Sahibabad Drain No. 1 in Ghaziabad and all its coverings are per se illegal and are liable to be demolished, irrespective of any permission by the Nagar Nigam. The drain is liable to be restored and allowed to flow without obstruction and pollution which will be the responsibility of the Nagar Nigam with oversight of higher authorities and regulators.
(ii) Demolition of above illegal constructions may be carried out unless viable and acceptable alternative to restore environment and Drain by a suitable sewer line enabling free flow and unpolluted storm water open drain is worked out upto 01.10.2022
(iii) In case of representation in terms of direction (ii), a Joint Committee headed by the Member Secretary, NCR Planning Board, Ministry of Urban Development, GoI, with nominee of Secretary, MoJS, GoI, Additional Chief Secretary, Urban Development, UP, Commissioner, Ghaziabad Nagar Nigam, District Magistrate, Ghaziabad, and UP PCB as members may consider the matter and give its report to the Tribunal 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 on or before 15.09.2022 about a viable alternative for sewer line being laid and simultaneously storm water drain being allowed to flow unpolluted and uninterrupted. This may be with full or partial financial contribution of affected/benefited parties, to be executed within the outer limit of one year from today.
(iv) If any such report is filed, the same may be simultaneously placed on the website of the UP PCB for being accessed by any of the affected parties.
(v) The report, if filed, be placed before the Tribunal on 28.09.2022 for consideration.
Subject to above, the application is disposed of.
A copy of this order be forwarded to NCR Planning Board, Ministry of Urban Development, GoI, MoJS, GoI, Additional Chief Secretary, Urban Development, UP, Commissioner, Ghaziabad Nagar Nigam, District Magistrate, Ghaziabad, SSP, Ghaziabad and UP PCB by e-mail for compliance."
6. It is in above background that the matter is to be further considered in the light of report submitted. However, before proceeding further, we may note that aggrieved by the order of this Tribunal dated 13.05.2022, 11 M/s Tata Steel Limited filed Civil Appeal No(s). 6811/2022, M/s. Tata Steel Limited vs. Hazi Arif & Ors. which was dismissed as withdrawn with liberty to file review application before the Tribunal vide order dated 28.09.2022 as follows:
"Learned Senior counsel for the appellant seeks leave to withdraw the Appeal with liberty to file Review before the National Green Tribunal.
Consequently, the Appeal is dismissed as withdrawn with liberty as prayed."
7. However, no review application has been filed in pursuance of the said order.
8. We now proceed to deal with report dated 28.11.2022 filed by the NCR Planning Board as a nodal agency of the joint Committee in terms of order dated 13.05.2022. It is stated that parallel sewer line is not feasible and instead the drain can be kept clean by installing cleaning chambers at intervals of 30 meters or after confluence of additional drains into the Sahibabad Drain whichever is earlier. However, with regard to illegal constructions, there is no recommendations in terms of order dated 13.5.2022 beyond saying that NCR regulation is of 2016 while constructions are of 2012. Operative part of the report is reproduced below:
"19(a) The Committee on 14.10.2022 has discussed the following directions of Hon'ble NGT:-
i) All constructions/encroachments in the bed and 12 meter buffer zone from the edge of Sahibabad Drain No. 1 in Ghaziabad and all its coverings are per se illegal and are liable to be demolished, irrespective of any permission by the Nagar Nigam.
(ii) Demolition of above illegal constructions may be carried out unless viable and acceptable alternative to restore environment and Drain by a suitable sewer line enabling free flow and unpolluted storm water open drain is worked out.
19(b) Regarding viable and acceptable alternative for sewer line, extensive deliberations have been held by the Office of District Magistrate, Ghaziabad in the meeting held on 01.07.2022 and by the Committee as 12 well. Technical inputs from concerned Agencies highlight that laying down of parallel Drain is not feasible due to lack of land along the drain in question and lack of 100% tapping by means of sewer in upstream region of the Sahibabad Drain. As no contradictory views of DM has been received on this technical inputs, the Committee felt that DM seems to be in broad agreement with stakeholders that parallel sewer line is not feasible. Committee accordingly agreed with views of DM Ghaziabad and stakeholders.
19(c) With regard to constructions/encroachments in the bed and 12 meter buffer zone, it was observed by the Committee that DM has conveyed that all permissions given by GNN are prior to 2012 and Functional Plan on Drainage was implemented from 2016. The same was confirmed in meeting on 14.10.2022 by representative of GNN and DM Ghaziabad as well.
20(a) Committee further deliberated the following provision of Functional Plan on drain which is quoted by the Hon'ble NGT as alternative parallel sewer line does not seen feasible:
8.3.10 Regulation for Covering of Drain In urban areas drains run along the roads and public is allowed to cover drains in front of their entrances for access from roads. It has been observed that the drains are covered along the property boundary especially in the commercial property. This results into covering of drains for a longer distance and cleaning becomes difficult which ultimately leads to blockage of drain and flooding on roads. A standard design for the drain for removable cover at regular interval should be incorporated in building byelaws so that the above problem can be avoided. It should be checked by the agency while granting building permission or at the time of providing occupancy certificate. A provision for recovering the demolition costs from the property owners, if any, should be integral part of Bye laws.
It is recommended that the practice of covering the drains for construction of roads should be stopped. Even the bridge/elevated road running over the drain along the alignment of the drain should also be discouraged as pillars obstruct the flow and movement of cleaning machines/ equipment's."
20(b) In order to ensure smooth flow in Sahibabad Drain, Committee has deliberated upon the suggestions of local association received from the office of the District Magistrate, Ghaziabad. Committee is of the view that the cleaning chambers should be made at intervals of 30 mtr. or after confluence of additional drains into the Sahibabad Drain whichever is earlier. Also mechanised screens should be installed in these cleaning chambers and its efficacy should be monitored by the Ghaziabad Nagar Nigam. The size of these chambers should be decided after due consideration of size of the Drain and machines required for its cleaning. Financial burden for making these cleaning chambers and installations of mechanised screens should be borne by the concerned private parties in the said matter.
1321. Committee recollected that ACS, Urban Development Government of UP had already nominated Ghaziabad officers as his representative in this Committee in first meeting and decided to send this to ACS, Urban Development, Government of UP for further necessary action as per the order of Hon'ble NGT and to file, status report in Hon'ble NGT thereafter accordingly since time has been requested by Committee from NGT for this matter. It was decided that status report be filed by Committee."
9. We have heard learned Counsel for the applicant and Shri Raj Panjwani, Senior Advocate who has assisted the Tribunal as amicus. We have also heard Mr. Tanmay Arora, Advocate appearing for one of the encroachers - M/s. Tata Steel Limited (earlier Bhushan Steel), learned Counsel for State PCB and also learned Counsel for NCR Planning Board.
10. From the above background, it is clear that there are two issues -
stopping pollution of drain by discharge of sewage so that the drain carries only unpolluted storm water which is its function and not to allow encroachment of buffer zone of the drain to keep flow of the drain unobstructed and to use the buffer zone for plantations to prevent soil erosion and land degradation as per mandate of section 24 of the Water Act and section 15 of the NGT Act.
11. The Tribunal has already held vide order dated 13.05.2022 that all constructions in the bed and within the buffer zone (12 meters from the edge of the drain5) and all its covering are illegal are liable to be demolished so as to restore the drain and its buffer zone free of pollution and obstruction. Only alternative for demolition could be a viable and acceptable alternative to restore environment and enable free flow of unpolluted storm water open drain which has not been found viable. Storm water drain in question is not to carry sewer for which proper conveyance system terminating to sewage treatment plant is to be set up. In present 5 In terms of Functional Plan on Drainage for National Capital Region 14 case, drain is also carrying sewer which is not permissible and only part of flow of waste water in the drain is being diverted to the Indirapuram Sewage Treatment Plant having capacity of 74 MLD. Thus, sanctity of Sahibabad drain as storm water drain is not being maintained before its confluence in Shahdara drain, Delhi. This needs to be remedied by laying the close conduit within the drain or by other suitable means. Since buffer zone of the drain has environmental functions, the same has to be left free for environmental purposes such as containing overflow, plantations etc on the pattern of floodplain zone of a river. Observations in the report about constructions being prior to report of NCR Planning Board are not of any consequence. Requirement of maintaining buffer zone does not flow from the said report but from section 24 of the Water Act and section 15 of the NGT Act, as already held by the Hon'ble Supreme Court inter alia in MC Mehta and Mantri Techzone, supra. Report merely clarifies the extent of buffer zone. Constructions are even covering drain or bed of the drain which is not permissible by any environmental norm/law and is to the detriment of environment. Merely providing cleaning chambers will neither enable preventing of pollution nor enable free flow of water or leave the buffer zones free. Rather on this pattern, there may be more encroachments and encourage all buffer zones to be occupied on the principle of parity which will not be conducive to the environment.
Sustainable Development and Precautionary Principles are accepted norms of environment law in view of authoritative judgment of the Hon'ble Supreme Court in Vellore Citizens Forum, supra and have been later incorporated in section 20 of the NGT Act.
12. Thus, in absence of any other option, the directions of the Tribunal dated 13.05.2022 have to be carried out for removing illegal constructions falling in the buffer zone (12 meters from the edge of the drain) and 15 preventing pollution of the drain by stopping discharge of untreated sewage, maintaining drain as exclusively storm water. Instead, the intercepted and diverted sewage needs to be treated and treated water utilized for secondary purposes such as agriculture, horticulture, industrial, parks, gardens or any other such non-contact purposes.
13. The District Magistrate and SSP, Ghaziabad, Ministry of Jal Shakti, Govt. of U.P. and Ghaziabad Nagar Nigam may accordingly take action expeditiously and restore the drain free from pollution and encroachments within six months from today.
The proceedings will stand disposed of.
MA No. 63/2022 filed by the applicant will also stand disposed of.
A copy of this order be forwarded to Chief Secretary, UP, Additional Chief Secretary, Ministry of Jal Shakti, Govt. of U.P., Ghaziabad Nagar Nigam, District Magistrate, SSP and District Forest Officer, Ghaziabad by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM February 10, 2023 Original Application No. 16/2014 (M.A. No. 63/2022) DV 16