National Green Tribunal
Dr Subhash C Pandey vs State Of Madhya Pradesh on 20 October, 2023
Item No. 02 & 03
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 07/2022(CZ)
Dr. Subhash C Pandey Applicant(s)
Vs.
State Of Madhya Pradesh& Ors. Respondent(s)
WITH
Original Application No. 12/2022(CZ)
(I.A.No.47/2022) (I.A.No.100/2023)
(I.A.No.101/2023) (I.A.No.102/2023) (I.A.No.103/2023)
Dr. Subhash C Pandey Applicant(s)
Vs.
State Of Madhya Pradesh& Ors. Respondent(s)
Date of Hearing: 20.10.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant(s): Dr. Subhash C Pandey
(Applicant in Person)
For Respondent(s) : Mr. Prashant M. Harne, Adv.
Mr. Om Shankar Shrivastava, Adv.
Mr. Shantanoo Saxena, Adv.
Mr. Deepesh Joshi, Adv.
Ms. Harshita Tejwani, Adv.
Mr. Vineet Gpta, Adv.
Mr. Pulkit Godha, Adv.
Mr. Enosh George Carlo, Adv.
Mr. Yadvendra Yadav, Adv.
Ms. Parul Bhadoria, Adv.
ORDER
1. In compliance of the previous order of this Tribunal Learned Counsel representing the BMC has submitted that in approximately seven cases, the persons aggrieved by the notices by the BMC, approached to the 1 Hon'ble High Court for remedy and the matter has been stayed and by interim order, in the two matters, the encroachments have been removed, in one of the matter process has been initiated and notices have been issued by the SDM concerned.
2. Learned counsel representing respondent no. 18 Mr. Deepesh Joshi and learned counsel Mr. Yadvendra Yadav have sought a short time to file the reply or relevant documents.
3. In its reply/compliance report on behalf of respondent no. 3 has been submitted that :-
1. In pursuance of the letter along with the chart prepared by the Executive Engineer, Water Resource Department, Bhopal wherein the encroachment falling within 33 meter are identified, the answering respondent no. 3 BMC carried out the identification of encroachments which are falling within its municipal limits wherein it was found that construction work was carried by the " private land owners without requisite permission from the competent authority and accordingly under section 307(2) of the Madhya Pradeeh Municipal Corporation Act, 1956 notices were issued on 11/09/2023 to all the eleven private land owner for removal of the illegal encroachments/ constructions carried out within 33 meters restricted zone.
2. The answering respondent no. 3 BMC has issued a final notice on 21/09/2023 under Madhya Pradesh Municipal Corporation Act 1956 for removal of the illegal encroachments/constructions wherein it is explicitly mentioned that the notice9 were issued in pursuance of the letter dated 09/09/2023 issued by Sub Divisional Officer in furtherance of the directions passed by this Tribunal meaning thereby the said notices issued by the answering respondent no. 3 to the private land owners i.e. in compliance to the order passed by this Tribunal in the present matter.
2
3. The answering respondent issued a letter dated 22/ 09/2023 addressing to the Deputy Commissioner, Police security and information, Bhopal and Additional Deputy Commissioner, Police Control Board, Bhopal requesting to provide police force for protection during the removal/demolition of the eleven illegal encroachments/ constructions.
4. It is further submitted that Two private land owners namely Smt. Neelam Mishra and Seema Mishra have demolished the constructions falling within 33 meter zone, One private land owner Aroshikha Education has filed representation before the High Level Committee constituted by the Chief Secretary and notice is issued to one private land owner namely Renu Gundecha under section 307(2) of the Madhya Pradesh Municipal Corporation Act 1956 for removal of the illegal encroachment/construction. The detailed information pertaining to encroachment are mentioned in tabular form which is marked and filed herewith.
5. The details of the encroachers and the action taken by the respondent no. 3 BMC against the encroachments in tabular form is as follows:-
S Name of On Description OF Action Remark
No. Owner/ Occupant Property Within Taken
33 Meter Zone
1 Smt. Mamta Yadav Strike Game Final notice Stay Stay Granted
w/o Shri Awdhesh Zone Khasra No. Granted Dated vide order dated
Pratap singh yadav 7/2/6/2 21/09/2023 was 22/09/2023 in
issued W.P. No.
24098/2023
2 Smt. Sushma Restorant Final notice Stay Granted
Pathak w/o Shri Khasra No. dated vide order dated
S.G. Pathak 59/1/11,60, 21/09/2023 03/10/2023 in
61, 65, W.P. No.
was issued
105/65 24123/2023
3 Shri Awdhesh Resturant Khasra Final notice dated Stay Granted by
Agrawal s/o Shri No. 65/1/6, 21/09/2023 order dated
Gopikishan 105/65, 67, 22/09/2023
was issued
Agarawal
69 in W.P. No.
24093/2023
4 Madhuram Pro. Resturant, Khasra Final notice dated Stay Granted by
Sudhir Gupta s/o No. 59/1/1 21/09/2023 order dated
3
Kaluram Gupta was issued 22/09/2023
W.P. No.
24144/2023
5 Shri Arvind Agrawal Shade ·Khasra No. Final notice dated Stay Granted by
s/o Kishorilal 65/1/4 21/09/2023 order dated
Agrawal was issued 22/09/2023 in
W.P. No.
24101/2023
6 Shri Vineet Ajmani Shade, Khasra No. Final notice dated Stay Granted by
s/o Shri J.L. Ajmani 52/2/1/3, 21/09/2023 order dated
60,61, 65, was issued 22/09/2023
105/65 W.P. No.
24059/2023
7 Smt. Shikha w/o Restaurant Final notice dated Stay Granted by
Shri Mahendra Khasra No. 58/1 21/09/2023 order dated
Singh Chouhan was issued 22/09/2023
W.P. No.
24111/2023
8 Smt. Seema Mishra Teen Shade For Final notice dated Self- Demolished
w/o Shri Narbada Dogs & 01 Temple, 21/09/2023
Prasad Khasra No. was issued
41/3 /1/9
9 Aroshikha Fishries, Khasra Final notice Representation
Education No. 77/ 1/2/ 1/1 Dated before the High
21/09/2023 was Level Committee
issued constituted by CS
10 Smt. Neelam Mishra Shade For Cow, Final notice Self-
w/ o Manoj Mishra Khasra No. Dated Demolished
59/ 1/8 21/09/2023
was issued
11 Smt. Renu Building Under First notice U/ S Under process
Gundecha w/o Shri Construction, 307(2) dated 18/
Ramakant Khasra No.41/ 10/2023 was
Gundecha 3/22 issued
6. The answering respondent vide its letter dated 03/10/2023 duly informed the Sub-Divisional Officer, TT Nagar Bhopal that the necessary action has been taken against eleven private properties/encroachments which are coming within the municipal limits of the answering respondent no. 3 Bhopal Municipal Corporation remaining encroachments/constructions are on the Government Land so the State Government/District Administration is required to take the necessary action for the removal of the encroachments.
7. It is also noteworthy to mention over here the Sub-Divisional Officer, T.T Nagar Bhopal issued a letter dated 18/ 10/2023 whereby 4 amended the list of the encroachments and it was clarified the name of Mrs Padma Dagar is replaced with Renu Gundecha, it was further mentioned in the letter that the confusion aroused due to the large khasra number, thus the answering respondent no. 3 BMC in pursuance of the letter received by the SDM office, issued the notice dated 18/ 10/2023 to Renu Gundecha under section 307(2) of the Madhya Pradesh Municipal Corporation Act 1956 for removal of the illegal encroachment/constructions carried out without the permission of the competent authority."
4. The applicant in person has submitted that the copy of I.A.No.100/2023, I.A.No.101/2023, I.A.No.102/2023 I.A.No.103/2023 has not been provided to the applicant. Copy of the same be provided to the applicant on available e-mail. He has further submitted that due to incorrect notice issued by the respondent it is not clear whether the work done by the BMC or its officials for identification and demarcation of the task relates to this matter or not and it is for the municipal corporation to issue the correct notices.
5. In one of the matter W.P. No. 24059/2023, the notice dated 11.09.2023 issued by the BMC was challenged and vide order dated 22.09.2023 interim order has been passed.
6. It is further submitted that :-
1. That Clause 2.57 of the Bhopal development plan 2005 (for short "Plan") has specifically highlighted this very fact in the following words- "150 hectare land all around the Kaliyasot and Kerwa reservoir is to be kept reserved for Botanical Garden and regional garden. This would be in addition to 33 meter green belt provision from the edge of reservoirs"
2. That why the aforesaid provision for land reserved for Botanical Garden and the Catchment area is made compulsory in the Plan is well explained and described in both of my Original Applications. Para 5 6,7,8 and 9 along with Annexures 2,3,4 and 5 are given in OA 07/ 2022 and OA 12/ 2022 and these points highlight the very significance of Botanical Garden and Catchment area for the conservation and survival of water bodies in question. The Plan in its clauses and provisions has given special emphasis on land use of Botanical Garden area. For example, as per the Clause 4.61 of the Plan, the use of Botanical Garden and regional garden may be for picnic huts, bird century, zoological garden, open air theatre, garden shooting range, plant nursery, organic farming, stud farming etc. and residential unit (for monitoring and vigilance).
3. That as per the Table 4-T- 10 of the plan also, the minimum area per unit in Botanical Garden/ regional garden for developing any unit shall be 20.00 ha with minimum breadth of 300 mt. Further, para 4.62 of Plan explains that residence for watching and monitoring will be limited to 20 sq mt only. All the structures are required by the said Plan to be of temporary nature.
4. That bed, green belt, botanical and regional garden of the Kaliasot and Kerwa reservoirs are in fact a "No Construction Zone" as has also been mentioned in the Plan and the encroachments over there are causing enormous pollution of water, soil, air and noise, and are badly disturbing the environment and wildlife.
5. These the following inferences can be directly drawn from a bare look at the Clauses of the Plan :
a) No construction activities shall be allowed in the 33 mt green belt and 150 ha land of the botanical garden and the regional garden;
b) Development activity if any should not be less than 20.00 ha with breadth of 300 mt;
c) Residential unit, developed if any, will be for watching and monitoring purpose only and shall not be more than 20 sq mt; 6
d) All structures developed if any will be of temporary nature.
6. That the special provision for keeping botanical garden all around the Kaliasot and Kerwa reservoirs is also very significant for addressing the issue of movement of wild animals, indigenous aquatic species, migratory birds and natural bird sanctuary and local ecology.
7. That moreover, looking at the significance and the need of botanical garden and green belt, Original Applicant has also prayed for immediately stopping all activities that are being carried on the bed, green belt, botanical garden, regional garden and the catchment area of Kaliasot and Kerwa reservoirs.
8. That the Respondent No. 4/ MPPCB in its Action Taken Report submitted on 31st October 2022 at page 4 para 3(2) has also clearly stated that "The main source of water in Kerwa reservoir is surface run off generated due to rainfall in its catchment area. The catchment area of the reservoir is about 64.5 sq km and having a gross storage capacity of 25 million cub mt."
9. That similarly, in the same report, at page 6 para 4(2), it has been stated that -"The Upper lake which is located in the upstream for Kaliasot reservoir is the main source of water inflow into the reservoir. Apart from this, the rainfall in the catchment of Kaliasot reservoir contributes a small portion to the reservoir. The catchment area of the reservoir is about 381.4 sq km. Kaliasot reservoir is used for irrigation purpose".
7. He has further drawn the attention of this Tribunal with regard to the discrepancies on the following points :-
a. Submergence area measured by the Old Committee and New Committee has a wide difference. Old Committee observed submergence area of Kaliasot and Kerwa reservoir to be 529.5 ha and 7 482 ha respectively. Whereas, New Committee observed the same to be 527.75 ha and 462.150 ha respectively for same water bodies;
b. Old Committee observed that boundary pillars at both Kaliasot and Kerwa reservoirs are now damaged and they stated clearly that they have no provision for providing fencing and pile foundation around the submergence area of the water bodies. Hence the Old Committee stated that no action can be taken on this issue. On the other hand, the New Committee on the same situation has found out the solution and recommended installation of 679 and 1080 pillars at Kaliasot and Kerwa reservoirs respectively for demarcation of their FTL areas. c. The Old Committee did not find any encroachment at Kaliasot reservoir whereas 33 hutments and a school were found within buffer zone of Kerwa reservoir. On the other hand, New Committee was able to observe a total number of 96 encroachments/ structures over the Kaliasot reservoir and 33 encroachments/ structures over the Kerwa reservoir;
d. No discharge of untreated waste water was observed by the Old Committee at Kaliasot reservoir whereas they observe the sock pits and septic tanks provided for sewage treatment at Kerwa reservoir. Therefore, they did not find any untreated sewage inflow into the Kaliasot and Kerwa reservoirs. On the other hand, the New Committee identified 4 fall points wherein 1.25 MLD of untreated sewage was observed directly flowing into the Kaliasot reservoir. Similarly, around 50 KLD wastewater was found to be directly flowing into Kerwa at Mindora village, and around 33 KLD and 15 KLD of waste water was are also found to be discharging into the Kerwa reservoir at Mindori village and Kushalpura village simultaneously. Therefore, total untreated wastewater discharging into Kerwa reservoir is observed to be 78 KLD."
8. That with respect to issue 5 of this Hon'ble Tribunal that identification of encroachments and steps taken for removal of encroachment wherein 8 the New Report stated that total number of 96 encroachments structures were found over the Kaliasot reservoir, out of which, 84 were situated on the government land and 12 structures on private land. New Report also claimed that notices have been issued to the encroachers on 11 September 2023 by the competent authority of revenue, urban and rural departments. Annexure- 8 (colly) is attached to explains the same. That from a plane reading of Annexure- 8 (colly) which is placed on page number 57- 72 in the New Report reveals that:
i. Total number of 96 encroachers, 84 were found on Government Land, but so far not even a single notice was issued to any of them.
ii. 12 encroachers are said to be found on private land, out of which notices were issued by the BMC to 11 encroachers as given on page 57- 72, But the name of Mrs. Renu Gundecha S/N 1, khasra number 41/ 3/ 22, Barkhedi Kalan, placed on page 70 was found missing in sending the notice.
iii. Page 69 of the Annexure -8 explains that total private encroachers are 11 including one Mrs. Padma Dagar, S/N 1, khasra number 41/ 3/1/ 4, But on the same time page 70 -72 states that the total private encroachers are 12 excluding name of Mrs. Padma Dagar. No explanation has been provided to clear these ambiguities. iv. In that way, there is an ambiguity in the list of private encroachers given on page 69 and page 70 of Annexure- 8, hence if true, the total private encroachers would be 13 as per the list and not 12 as stated.
v. Therefore, out of the 97 encroachments over Kaliasot reservoir, 86 encroachments were not given notices.
vi. That from a plain reading of the New Report submitted by the Respondent no 1/ State of Madhya Pradesh and the documents annexed therewith, it is revealed that there are total of 12 private 9 encroachers found by the New Committee (page 14, para 4a and page 70-72 Annexure -V of the Report). But Bhopal Municipal Corporation (for short "BMC") had skipped one name (i.e. Mrs. Renu Gundecha) and issued notices to 11 private encroachers of Kaliasot Reservoir as listed in page number 58 to 68 in the Report, out of which, Aarosikha Educational and Welfare Society, Mrs. Mamta Yadav, Mr. Awadhesh Agarwal and Mrs. Sikha Mahendra Singh have already been impleaded as Respondent number 13, 15, 16 and 18 respectively by the Applicant. Notices were also issued by the Registry which were served to the parties in due course of time.
vii. That Format, Content, Reference and Subject of all 11 Notices issued by the BMC are same. But in the notices issued, the BMC has committed serious lapses. Subject and reference written are wrong, controversial or objectionable. BMC's notice states that Þekuuh; jk"Vªh; gfjr vf/kdj.k] lsVa ªy tksu csap] Hkksiky }kjk vksfjtuy ,Iyhds'ku u-135@2014 ¼lh-tsM½ ,o vkbZ-,-ua- 35@2023 esa ikjjr vkns'k fnukad 11-08-2023 ,oa vuqfoHkkxh; vf/kdkjh] utwy VhVh uxj]oÙk`] Hkksiky dk i= Øekd & 532@v-o-v-@ VhVh uxj@2023 Hkksiky fnukad & 09-09-2023 ds ifjikyu esaAß This translates into English as "In compliance with Order given by Hon'ble National Green Tribunal, Central Zone Bench Bhopal in Original Application number 135/ 2014 (CZ) and IA number 35/ 2023; dated 11.8.2023 and Sub Divisional Officer, Nuzul TT Nagar Circle, Bhopal, letter number- 532/AVA/ TT Nagar / 2023 Bhopal ; dated 09.09. 2023".
Original Application number 135/ 2014 (CZ), IA number 35/ 2023 and the order dated 11/8/2023 as cited in the notice as above have no connection with the present case. The fact is that Original Application number of the present case is 07/ 2022 (CZ), which 10 was clubbed with OA 12/ 2022 (CZ) and the order passed by this Tribunal is dated 18/8/2023. The reference to the case and order as cited in the notices relate to Kaliasot River, while the present case relates to Kalisot and Kerwa Reservoirs. Therefore, BMC has incorrectly acted upon a different case while purportedly issuing notices to the private parties. In such circumstances, there is no clarity on whether the BMC has issued notices to the concerned individuals (encroachers of Kaliasot Reservoir and not Kaliasot River). Due to the incorrect notices sent by the BMC, it is not clear whether the work claimed to have been done by BMC and other Officials (in the team constituted for identification, demarcation and other tasks) in the present matter really relates to Kaliasot Reservoir.
viii. The New Report skipped the following names in the list of encroachers at Kaliasot reservoir who have already been impleaded by the Applicant and notices were also issued to them by the Registry of NGT:
a) Mrs. Sapna Singhdev ; Respondent No 10.
b) Mr. Kumar Raj Yadav ; Respondent No 11
c) Mr. Arun Jatav ; Respondent No 12
d) Mr. Rajesh Wadhwani ; Respondent No 14
e) M/S Omkar recreation; Respondent No. 17.
On Kerwa reservoir
9. That from a perusal of Annexure -9 (colly) which is placed on page number 73- 95 in the New Report, it is revealed that:
i. Total number of 33 encroachers/ structures are observed over Kerwa reservoir, out of which 18 are found on Government land but so far notices were served to only 15 encroaches (page 76 - 90 of the New Report).
11 ii. 3 Encroachers who are placed at S/N 13, 22 and 25 were skipped for issuing notices.
iii. Total number of 15 private encroachers observed but so far notice was issued to only one (S/N 32 page, 75 of the New Report) and surprisingly 14 encroachments were skipped from issuing notices. iv. Therefore, notices were issued only on selective bases. That is why out of 33 encroachments, notices issued to only 16 encroachments. Rest 17 encroachments were skipped from issuing notices. v. In addition to above, Applicant has impleaded 6 encroachers i.e. Responded No. 10 to 15. NGT Registry had also issued notices to all of them but no one of them has been included in the New Report in the list of encroachers over Kerwa reservoir. Newly impleaded encroachers by the Applicant are as follows:
a) Dr. Subodh Vashney; Respondent No. 10 b) Mr. Umesh Yadav; Respondent No. 11 c) Mr. Neeraj Vijaywargiy; Respondent No. 12 d) Mr. Manish Vyas; Respondent No. 13
e) Mr. Mohammad Ibrahim Khan; Respondent No. 14
f) Mrs. Narayani Beva and others; Respondent No. 15.
10. That with respect to issue number 6 raised by this Hon'ble Tribunal i.e. steps to maintain water quality of reservoirs, New Report submitted by the Respondent No.1 is also incomplete and misleaded For Kaliasot reservoir.
i. It is wrongly stated that water analysis report for last 4 years 2020- 2023 is annexed. In fact, casual (not regular) analysis report for year 2016 -17, 2021- 22, 2022- 23 and 2023- 24 (April to July 2023) are annexed.
ii. Very casual approach was adopted by the MPPCB to establish the water quality. No sampling station name is 12 mentioned in the report of year 2016- 17 and year 2021-
22. iii. Only one sampling station was chosen to justify water quality of a huge water body having submergence area of 529.5 ha - is incorrect. At least 5 sampling stations with respect to point sources be taken in consideration to ascertain water quality of Kaliasot reservoir. iv. Regular monthly monitoring of the reservoir including other important parameters viz. phenols, anionic detergents, PAH, pesticides, insecticides and SAR should also be taken in analysis to address the water quality of Kaliasot reservoir. v. Aquatic biodiversity (phytoplankton and zooplankton) should also be addressed for establishment of actual water quality standard of Kaliasot reservoir.
vi. In addition to the plantation of indigenous plants at green belt and Botanical Garden area, vegetative fencing by means of vetiver grass may also be developed for the protection of water bodies and addressing surface and groundwater contamination.
For Kerwa reservoir i. Water analysis report for 6 years 2017-2023 is annexed in the New Report.
ii. Very casual approach was adopted by the MPPCB to establish the water quality.
iii. Only one sampling station i.e. near rest house was chosen to justify water quality of a huge water body having submergence area of 482 ha - is incorrect. At least 5 sampling stations with respect to point sources be taken in consideration to ascertain water quality of Kerwa reservoir. iv. Looking to the chemical farming all around the Kerwa reservoir, regular monthly monitoring including other 13 important parameters viz. phenols, anionic detergents, PAH, pesticides, insecticides and SAR should also be taken in analysis to address the water quality of Kerwa reservoir. v. Shoot up in Total Coliform exponentially at sometimes in Kerwa reservoir should be the cause of our concern. It was observed 430 MPN in July 2017, 1600 MPN in January 2022and 350 MPN in October 2021 and January 2023 which clearly indicate that potable water quality of Kerwa reservoir is deteriorating gradually.
vi. Aquatic biodiversity (phytoplankton and zooplankton) should also be addressed for establishment of actual water quality standard of Kerwa reservoir.
vii. In addition to the plantation of indigenous plants at green belt and Botanical Garden area, vegetative fencing by means of vetiver grass may also be developed for the protection of water bodies and addressing surface and groundwater contamination."
6 Respondents are directed to submit para-wise reply/contention raised by the applicant and to ensure the compliance and removal of encroachment within a time frame according to law.
List it on 09th January, 2024.
Sheo Kumar Singh, JM Dr. Afroz Ahmad, EM 20th October, 2023 O.A. No. 07/2022 (CZ) & O.A. No. 12/2022 (CZ) PN 14