National Green Tribunal
Pateshwari Prasad Singh vs State Of Uttar Pradesh & Ors on 9 February, 2023
Item No. 4 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Physical Hearing with Hybrid VC Option)
Original Application No. 433/2022
Pateshwari Prasad Singh ...Applicant
Versus
State of Uttar Pradesh & Ors. ...Respondents
Date of hearing: 09.02.2023
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER.
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER.
Applicant: None.
Respondents: Mr. Pradeep Misra and Mr. Daleep Dhyani, Advocates
for UPPCB (through VC).
Application is registered based on a letter petition received by Post.
ORDER
1. In compliance to orders dated 05.09.2022, 17.10.2022 and 19.12.2022, report of the Joint Committee has been filed vide email dated 21.01.2023. Relevant part of the same is reproduced as under:-
"Report of Joint Committee constituted as per NGT Order dated 05.09.2022 in the matter of O.A. No. 433/2022.
x x x x x x In compliance thereof Mr. R.K. Singh, Chief Environment Officer, Uttar Pradesh, PCB has sent the report of the Joint Committee vide letter dated 30.08.2022 emailed on 01.09.2022. O. A. No. 433/2022 Pateshwari Prasad Singh Vs. State of U.P. & Ors.-2-
In the report of the Joint Committee, Suav has been mentioned to be a drain whereas in 1905 Gazetteer of District Gonda the same is referred to as river and, therefore, the fundamental question which arises in the present case is as to whether Suav is a river or a drain and the questions which arise further relate to the aspects of demarcation of Flood Plain Zone (FZP) in case Suav is a river and the nature and extent of encroachments on the same.
Hon'ble NGT found that the Joint Committee has addressed the issues pertaining to STP and Community Centre only and the issues pertaining to status of Suav as river or Nala, demarcation of Flood Plain Zone and encroachments on the same issues have not been addressed properly by the Joint Committee. In view of the above facts, we consider it to appropriate to constitute another Committee comprising of Chairman of Central Water Commission or his nominee not below the rank of Chief Engineer, representatives of State Remote Sensing Organization, State of Uttar Pradesh, Ministry of Jal Shakti, Uttar Pradesh and State PCB and District Magistrate, Balrampur to undertake field visits and verify factual position by assessing ground reality as well as relevant revenue and administrative record and submit its report specifically addressing the issues as to whether, Suav is a drain (Nala) or River, demarcation of flood plain zone in case Suav is a river and extent/magnitude of encroachments on left and right banks of Suav in urban municipal limits of city Balrampur.
Nominations from the all concerned institutes were completed and following are the members of the Joint Committee constituted in compliance to the Hon'ble NGT order dated 05.09.2022 in the matter of Pateshwari Prasad Singh Versus State of Uttar Pradesh in O.A. No. 433/2022;
1. Shri Anupam Prasad, Chief Engineer, UGBO, CWC
2. Shri Rakesh Kumar, Chief Engineer, Saryu-II, WRD, UP
3. Shri Arjun Singh, Scientist SD, RSAC, UP
4. Shri Rajendra Bahadur, SDM, Tehsil- Sadar, Balrampur 2.0. General description of the District/Area Balrampur district is surrounded by Bahraich, Siddharthnagar, Gonda and, Basti districts of Uttar Pradesh. In its North lies the country of Nepal. The district has an geographical area of 3.37 lakh hectares out of which about 2.21 lakh hectare is under agriculture.
Rapti is the main river which flows through the district and is known for causing havoc during the monsoon season. The area just below the mountain slopes of Nepal is known as Terai and the river and rivulets emerging from the mountain slopes discharge heavily along with silt in the Terai area. During monsoon season with the waters gushing from the hills of Nepal from the north combined with river O. A. No. 433/2022 Pateshwari Prasad Singh Vs. State of U.P. & Ors.-3-
waters of river Rapti often floods the district. Due to flat terrain, problems associated with drainage of the flood waters from the submerged areas of the district is a major perennial problem.
Balrampur is a small city in expansion mode and with passage of time this expansion is likely to accelerate. At present the construction activities especially those related to construction of new residences/commercial establishment etc. are being undertaken encompassing new areas.
3.0 Field Visit of the Joint Committee The Joint Committee made visit on 22.11.2022 at the under construction site of STP in Balrampur on the left bank of the so called Suav river/ drain and made a reconnaissance survey along it. The Committee also visited the origin/source of the river/drain.
Detailed discussion were held on various aspect of the Suav river/ drain, irrigation in the area, floods in the district of Balrampur etc. The representative from State Remote sensing Centre, Govt. of UP presented the historical as well as latest satellite images of the Suav river/ drain upto Chande Tal.
4.0. Important points which emerged from the discussion /Field visit i. The Gazetteer of Gonda, published in 1906 describes the topography, demography, Agriculture, Rivers in fair detail. The document mentions that there are a number small channels/drains joining River Rapti, which carry water only during wet season and resemble like river. But the only tributary of significance to the river Rapti is Burhi Rapti on its North(left) Bank and River Suwawan (Suav) on its South (Right Bank). The Gazetteer says that the river Suav becomes a river of considerable proportion before its joining in river Rapti near Rasoolabad in Utaraula pargana .Relevant extract of the Gazetteer is enclosed at Annexure-I. ii. The Irrigation officials informed that the Suav river/drain in question in their records is named as Gopiyapur drain and is about 38 km in length from its origin from a Jhil/Tal near Gopiyapur village in Balrampur district upto Chande Tal (close to right bank of River Rapti). From Chande Tal two channels emerge , one with a length of few hundred meters takes a north course and drains directly into river Rapti and another channel (known locally as Suav) emerges from south of Chande Tal and takes south-east direction and after traversing a distance of about 82 km merges with river Rapti near Rasoolabad in Uttraula Tehsil close to border of District Siddharthnagar and merges with Rapti. During monsoon season when the Rapti is in spate and rainfall occurs in the area causing the Chande Tal to swell, all of the water is carried by this Channel (River/Drain Suav). The Suav below O. A. No. 433/2022 Pateshwari Prasad Singh Vs. State of U.P. & Ors.-4-
Chande Tal passes through many Thils/Tals and at many places the banks are not well defined and during dry season it merges with the adjoining agriculture fields.
iii. It was surprisingly gathered during the course of discussion that at many places where the channel of the river is not defined, the bed of the Suav is used for agriculture purpose and is also owned by farmers, who have such land in their own name as per land records. During monsoon season the water flows from these fields giving Suav a natural course. It was also informed that during Rabi season the Chande Tal also becomes agriculture field.
iv. The whole river from its origin up its confluence with Rapti (about 120 Km with drainage of about 235 square kilometers) drains a large tract of land during monsoon and also acts as irrigation drain for the water which flows out from the adjacent agricultural fields. It was further informed that the Suav river/drain is maintained by Irrigation Department from time to time (latest resectioning was done in 2020-21). As per the information provided by Irrigation officials, the design discharge estimated as 568 cusec for Gopiyapur drain and at Tail end of Suav river/drain is 1059 cusec. More details of the river Suav and Gopiyapur Drain is enclosed at Annexure-II(a) and II(b) respectively.
v. The officials presented an index map of drainage system in the district of Balrampur and adjoining districts, which is enclosed at Annexure-III. It can be seen from the map that the Basti Branch of the irrigation canal irrigates the total area (Pink colour) lying between river Rapti and River Kwano in the district of Balrampur through a network of Distributaries and Minors. The Basti branch canal is a ridge canal and the drainage of the major geographical area lying between north of the Basti Branch Canal and river Rapti is taken care by the Suav river, which includes the Balrampur town also.
vi. The officer from State Remote Sensing Centre, UP presented the year 1985, 1995,2004, 2015, 2020 and 2022 (Annexure- IV). In all the imageries the banks of the Suav is clearly defined with an extremely meandering nature (specific to rivers flowing in very flat area). In October 2022 imagery, when there were heavy discharge in the rivers, the Chande Tal swelled and the north channel draining into river Rapti became undefined.
vii. The map showing river Suav from Chande Tal to its confluence with river Rapti near Rasoolabad close to Siddharthnagar district border is placed at Annexure-V. viii. The Committee visited the location where STP is being constructed along the left bank of the Suav river(Figure 1). It was observed that the retaining wall is being constructed on the left high bank of the river/drain. The left bank is higher in elevation than the right bank. A heap of litter was found O. A. No. 433/2022 Pateshwari Prasad Singh Vs. State of U.P. & Ors.
-5-dumped on opposite side (Right Bank) of under construction STP. At the time of visit a flow of the order of 2-3 cumec was observed in the river/drain near under construction STP. Rabi season is being carried out on the bed of Suav river below Chande Tal and within Chande Tal. The Suav has well defined banks during the last 45-50 km of its stretch. Suav was having decent flow (continuous) in the visited stretch near STP and was informed that the flow diminishes during the peak summer months and it becomes dry, however stagnant water can be seen in different patches all along the channel even during summer season. The Balrampur town sewage and discharge from the Sugar mills also outfalls in the Suay. At present there is no sewage network in the Balrampur town and the STP under construction will take care of part of the sewage generated from the town.
ix. The Committee also visited the location where the river/drain Suav originates. It's a low lying area (Tal/jhil) on NH 730 at Lat-24.480710 and long 82.106370 in the district of Balrampur.
x. There is no regular Stage-discharge or water quality monitoring stations on the Suav nor any long term historical data is available.
5.0 Recommendations of the Committee i. The Suav has its origin froma Tal/Jhil in the district of Balrampur. Eventually rainfall runoff/Agriculture runoff water from the adjacent fields join it to make it a free flowing natural stream. The Suav carries fresh water and has natural bed with very shallow depth in many places. The Suav especially below Chande Tal is inter connected by many low lying area (Jhil/Tals) and has shallow and undefined banks in many stretches. Agriculture especially during Rabi season is being carried out on the bed of Suav river below Chande Tal and within Chande Tal. The Suav has well defined banks during the last 45-50 km of its stretch. Suav was having decent flow (continuous) in the visited stretch near STP and was informed that the flow diminishes during the peak summer months and it becomes dry, however stagnant water can be seen in different patches all along the channel even during summer season. The Balrampur town sewage and discharge from the Sugar millsaiso outfalls in the Suav. At present there is no sewage network. in the Balrampur town and the STP under construction will take care of part of the sewage generated from the town.
The Suav, as per Irrigation Department records has been mentioned as a drain (Gopiyapur) till its outfall in Chande Tal. The concept of irrigation drain came after advent of irrigation system in the area. The Gazetteer of Gonda mentions the Suav as a river of significance before its confluence with Rapti.
O. A. No. 433/2022 Pateshwari Prasad Singh Vs. State of U.P. & Ors.
-6-The basic natural purpose of a river or Nalas or rivulets is to drain out the water falling in its catchment area to a river/Nala/Rivulet of higher order or Sea/Large Lake. Nevertheless, Suav has a natural origin, availability of freshwater due to rains over its catchment and natural curvature of its entire course. However the depth of Suav is very shallow especially in first 60-70 kilometers of its reach and undefined banks at many stretches, which is due to extremely flat topography. Further it directly joins river Rapti, having a length of about 120 km.
It can be concluded the Suav may be considered as river but at the same time its importance as an important Irrigation drain cannot be overlooked keeping in view the large tract of Irrigated area it drains out and its proper section and slope has to be maintained. As on date the most important purpose of the Suav is to drain out waters from its catchment (including Balrampur City) as quickly as possible to prevent waterlogging in the city and agriculture fields.
ii. Entire Balrampur district has a flat topography, with a very gentle slope. During the monsoon season the area is susceptible to floods from heavy rains and rising water levels of River Rapti. Even after the rainfall ceases and River water level of Rapti starts receding, a large tract of areas remain water logged due to extremely flat terrain and slow drainage of flood waters in to river Rapti through its tributaries. The Balrampur town is expanding with new residential colonies cropping up along the periphery of the city. Commercial/industrial activities may also rise in near future leading to further influx of population in the city. The Suav river which drains the areas around the Balrampur city is likely to come under stress through encroachment/discharge of solid waste and untreated sewage, which may lead to hindrance in free flow causing drainage congestion thereby increasing the severity of the floods. The construction activities should be properly planned so as not to interfere with the natural drainage. There should plan for proper storm water drainage network discharging into Suav and sewage network for transporting the domestic sewage to STP in new upcoming as well as old areas of the city. Solid waste management should also be taken up simultaneously.
iii. In a very flat terrain rivers tend to meander and over time the meander part gets cutoff and form a water body of shallow depth close to the river and acts as Jhils/Tals and are generally marshy in nature. Many such small water bodies (jhils/tals) can be seen just besides/along the course of the river. These water bodies can be very easy prey to the encroachment. With the construction activities pacing up these O. A. No. 433/2022 Pateshwari Prasad Singh Vs. State of U.P. & Ors.
-7-water bodies /low lying areas may come under encroachment. There is urgent need to regulate the construction activity and encroachment in a sustainable way.
iv. In the previous paras, it has been described about the flood issues in Balrampur city, which is primarily due to spilling of River Rapti and its backwater effect leading to congestion. The Suav river as such is not responsible for the floods. However, its importance lies in draining out the flood waters from the low lying areas. It is brought out that the Suav river is ungauged i.e there is no long term high frequency observed data of the river pertaining to discharge, water level and back waters data of river Rapti. Hence most of the data has to be generated using various empirical/Statistical methodologies based on which the flood plane zoning studies (to be more precise no construction zone) has to be carried out. A scientific study needs to be undertaken using the expertise of well-established institutions like one of the IIT. Based on the results of these studies it then may be possible to assess the extent of encroachment made within the municipal limits of Balrampur city and demarcate no construction zone. The Committee accordingly recommends to nominate expert(s) in the Committee to carry out such study to demarcate no construction along the river Suav within the Municipal Limits of Balrampur town and beyond.
v. The Irrigation Department is also carrying out re-sectioning, dreding in river Suav to allow it to allow quick drainage of water from its catchment area including Balrampur city during monsoon period/floods. It is recommended that regular annual maintenance of the river Suav should be carried out regularly so as to maintain the river regime.
vi. It is also recommended to carryout 10-daily Water Quality monitoring of the Suav river by SPCB, UP at various locations especially where sewage/industrial water is being discharged in the river."
2. As suggested in the Joint Committee Report, we nominate Director or his nominee, National Institute of Hydrology (NIH), Roorkee as an expert Member of the Joint Committee. Accordingly, we direct the Joint Committee to undertake field visit and accomplish the task related to demarcation of Flood Plan Zone (FPZ) of Suav river, extent/magnitude of the encroachment (identification of houses, religious structures, schools, land etc. in FPZ) on the left and right banks of Sauv river in Urban Municipal Limits of Balrampur city and submit its report by 10.05.2023. O. A. No. 433/2022 Pateshwari Prasad Singh Vs. State of U.P. & Ors.
-8-3. Regarding Consent requirement for Conveyance System/Pipeline Network the UPPCB has in its letter dated 21.01.2023 submitted as under:
"For the requirement of its consent as per the environmental norms with regard to conveyance system/pipeline network carrying sewage to the STP, it is submitted that in section 25(1)(a) of The Water (Prevention and Control of Pollution) Act, 1974 stated that ".......establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or.....
Copy of the concerned page of Section 25(1)(a) of The Water (Prevention and Control of Pollution) Act, 1974 is enclosed herewith and marked as Annexure No. 2.
4. Relevant part of section 25 of The Water (Prevention and Control of Pollution) Act, 1974, which imposes restrictions on new outlets and new discharges reads as under:-
"25. Restrictions on new outlets and new discharges.(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,--
(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or
(b) bring into use any new or altered outlet for the discharge of sewage; or
(c) begin to make any new discharge of sewage.
x x x x x x"
5. Accordingly, Consent to Establish (CTE) from State PCB for Conveyance System/Pipeline Network for sewage is mandatory and the same has not been taken by the implementing agency, i.e., UP Jal Nigam.
O. A. No. 433/2022 Pateshwari Prasad Singh Vs. State of U.P. & Ors.
-9-We direct the UPPCB and the District Magistrate, Balrampur to ensure that laying of Conveyance System/Pipeline Network should not be undertaken without CTE from UPPCB.
6. In view of the averments made in the application and observations made in the reports, we consider it appropriate to have response from (1) the State of Uttar Pradesh, through its Chief Secretary, Government of Uttar Pradesh; (2 the Department of Jal Shakti, Government of Uttar Pradesh; (3) the UPPCB; (4) the UP Jal Nigam; and (5) the District Magistrate, Balrampur, who stand impleaded as Respondents No. 1 to 5.
The Registry is directed to prepare and attach memo of parties to the application and issue notices to Respondents No. 1 to 5 requiring them to file their reply/response within two months at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of Image PDF.
7. List the matter for further consideration on 19.05.2023.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM February 09, 2023 AVT