National Green Tribunal
Bhanwar Lal S/O Late Shri Narayan vs State Of Rajasthan Through Chief ... on 28 February, 2017
BEFORE THE NATIONAL GREEN TRIBUNAL, CENTRAL ZONAL BENCH,
BHOPAL
Original Application No. 91/2015 (CZ)
Bhanwarlal Vs. State of Rajasthan & Ors.
CORUM : HON'BLE MR. JUSTICE DALIP SINGH, JUDICIAL MEMBER
HON'BLE Dr. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
PRESENT : Applicant: Shri Dharamvir Sharma, Advocate
CGWB : Shri Yadvendra Yadav, Advocate
Dr. S.C. Paranjpe
State of Rajasthan : Shri Sandeep Singh, Adv.
Shri Navin Ajmera, Sr. M.E.
Shri Gopal Lal, ME,
Shri Harish Goya, M.E.,Beawar
Shri Laxmi Narayan, AME
Commissioner : Shri Om Shankar Shrivastav, Advocate
Respodents Shri Apoorv Pandey, Adv.
Date and
Order of the Tribunal
Remarks
Order No. 11 We have heard the Learned Counsel for the parties as well as
28th February,
2017 the Learned Commissioner who has explained the contents of the
inspection and his report submitted before the Tribunal on
14.09.2016. The Learned Commissioner has in his report in para no.
9.1 & 9.2 given details with regard to the Shakti Sagar Lake on page
no. 14 & 15 and again very importantly on page no. 18 onwards on
the concluding observations in para 10 where he has given the
following observations :
"B. Anicuts are constructed on natural drainage
pattern is obstructing the flow of rain water and
observed to be violating the „Technical Specification
and direction of Anicuts Construction‟ issued through
technical circular no. 3/2002, vide its letter dtd.
09.04.2002 by State of Rajasthan . It was observed
while visit that, neither the site selection nor the height
of anicuts were taken into consideration while allowing
number of anicuts constructed on each stream. It is
1
relevant to conduct study of the gross catchment,
intercept catchment and free catchment area along with
t he average rainfall with downstream details to
proceed for construction of anicuts which seems to be
missing in present case. There is no documents were
provided to the undersigned which can suggest the
technical feasibilities of constructed anicuts in these
area. However, there are circular and directions issued
vide several letters by Water Resources Department,
State of Rajasthan in compliance of the direction given
by Hon‟ble Supreme Court in Civil Appeal No.
1132/2011 Jagpal Sing & Orhers vs. State of Punjab
and in the matter, Civil W.P. No. 11153/2011 Suo
Moto vs. State of Rajasthan vide its Order dtd.
29.05.2012passed by the Hon‟ble High Court, Rajasthan, Jaipur.
C. That, keeping in view of for sustainable development of ground water, artificial recharge measures to be employed to augment ground water and surface water resources. According to CGWB Past Exploratory drilling in these area result show potential zone having inferior quality water, which can be blended with fresh water for irrigation use. Since the stage of ground water development has already crossed 100% artificial recharge is the only solution to augment ground water through construction of bunds, anicuts and rooftop harvesting structures. Since study indicates that, the area has undergone polyphase deformation in geological past which has resulted in a 2 complex structure (folded, faulted and jointed) hence, carefully only after geomorphologic and technical study, these structures may be allowed to construct in the natural stream."
During the hearing it was not disputed before us that the State of Rajasthan, Water Resources Department itself after the judgment of the Hon‟ble High Court of Rajasthan in the case of Suo- Motu vs. State of Rajasthan as well as of the Hon‟ble Supreme Court in the case of Jagpal Singh & Ors. vs. State of Punjab and even prior to that in 2002 vide a circular no. 03/2002 on the subject „technical specifications and directions of anicut construction‟ has dealt with the aforesaid issues with regard to the construction of anicuts their location and specifications. In this connection we would like to reiterate the concern expressed by the Learned Commissioner that the area in question has fractured lithography where the anicuts would be fatal for the water body as these would stop the inflow of water from the catchment area completely. In the light of the above observations and findings of the Learned Commissioner and also material placed before us in the form of the two maps which has been appended to the commissioner report, we are prima facie of the view and which is also shared by all the parties concern that the primary concern and responsibility of all has to be saving and protecting and ensuring the safety of the Shakti Sagar Lake.
With that objective in mind our first and foremost concern has to be to ensure that water drainage from the catchment area is not in any manner obstructed so as to reduce the in-flow of rain water into the Shakti Sagar Lake which is only filled by the rain during the monsoon season. Any obstruction whether in the form of valid mining leases or in the form of any illegal mining which is also 3 reportedly said to have been caused as is evident from the figures no. 32, 33, 34 & 35 appended to the report of the Commissioner as also the construction of roughly 40 anicuts are said to have been made in the catchment area of the Shakti Sagar Lake which has adversely affected the inflow of the rain water into the Shakti Sagar Lake. Steps, therefore, need to be taken firstly for ensuring in the light of the circulars of 09.04.2002 as also the directions issued by the Hon‟ble Supreme Court and also by the Hon‟ble High Court of Rajasthan that the water body of Shakti Sagar at Khariya, District Ajmer must be allowed to fill to its full capacity. To ensure that all existing anicuts should not retain or stop any water till such time as the full tank level in the Shakti Sagar is achieved.
Based upon the past documented records which are available with the Water Resources Department pertaining to excess flow only to the extent having been ascertained only excess water over and above the FTL capacity of Shakti Sagar Lake should be allowed to be retained in the anicuts which have been constructed downstream within the catchment area of the Shakti Sagar Lake.
For this purpose, Sluice gates have to be provided at the anicuts before onset of the coming monsoon. These Sluice gates shall remain open and shall not obstruct the flow of rain water from the catchment area of Shakthi Sagar Lake till such time as Shakti Sagar Lake attains the FTL. As has been stated above, the Water Resources Department will keep in place constant monitoring mechanism for this purpose and the instructions be issued to the responsible persons for closure of the anicuts only after the FTL at Shakti Sagar Lake is achieved for monitoring and overseeing the steps that may be required to be taken and also ensure that no person whether any authority or otherwise be allowed to shut the Sluice gate so as 4 to obstruct the flow into the Shakti Sagar Lake.
In so far as Shakti Sagar lake is concerned we direct that the State place before us the complete revenue record of the khasra nos. Khatoni / jamabandi to show the extent of the Shakti Sagar Lake along with the rights and classification of those Khasra nos. Needless to add that section 16 of the Rajasthan Tenancy Act under clause (ii) clearly stats that no Khatidari rights shall be approved in any river bed or "tank". In that view of the matter if there are any recorded Khatidars in the land of the tank bed of the Shakti Sagar Lake, the revenue officials, that is the Settlement Department / District Collector, shall formerly take action as per the provisions of Section 16 of the Rajasthan Tenancy Act so as to ensure that no Khatidari Rights are conferred upon any persons who may have had any such rights in the past. These steps be taken in accordance with law after issuing necessary notices.
This has become essential as we have been informed during the course of hearing that with a view to cultivate the tank bed interested persons with the connivance or otherwise of the authorities or persons in responsibility allow the water from the lake to be discharged for various purposes either to benefit those who are in the downstream of Shakti Sagar Lake and / or for the benefit of those who may be allowed to cultivate the land of the tank bed. This practice needs to be monitored and no unscrupulous activity in this behalf should be permitted by the revenue officials and the collector will specifically issue directions to this effect along with the directions to the Water Resource Department and also village panchayats as we have been informed that the management at present of the manning irrigation projects including of Shakti Sagar Lake lies 5 in the hands of the village panchayat.
We are constrained to observe this because of the fact that the water conservation has to be given top priority. As has been held all water tanks need to be conserved to their full extent as also the fact that these are being exploited heavily for irrigation and drinking purposes on account of the various factors such as huge growth of the population and also due to the requirement in the Agriculture sector. Therefore, for the protection of the environment and conservation of the water resources the protection of Shakti Sagar Lake has to be ensured at all cost.
Before onset of monsoon the District Collector shall ensure that valid measures are adopted for the protection of Shakti Sagar Lake including preventing any seepage or leakage on account of the passage of time or neglect that may have been occurred as we have been informed that Shakti Sagar Lake have not received a full quota of water and not having filled up to FTL for the past few years. In fact this lake has dried up and on account of which digging of earth and other activities have taken place which may have weakened the foundation or embankment of the Shakti Sagar Lake. Therefore, these steps need to be taken in right earnest before the onset of the monsoon.
In so far as mining activities are concerned the same can be categorised in two categories. There is the issue of illegal mining both on Government land as well as of private Khatidari land. In so far as private Khatidari land is concerned this is a serious issue as no khatidar of the agriculture land or private land owned by him can permit mining on the piece of land in his khatidari without mining lease. This has to be stopped and we find from the photographs 6 appended to the inspection report of the Commissioner as depicted in figures at serial no. 33 and 34 that deep mining excavation has been carried out. We would direct the District Collector to immediately take necessary steps firstly with regard to the cancellation of the khatidari rights of such persons, secondly imposition of fine for destroying the environment and causing activities to be done which are detrimental to the environment and therefore, khatidars must be made to pay for the restoration of the environment and backfilling of the excavated areas. This task be completed as soon as possible and preferably before the onset of the monsoon as we find from the photographs at figure 34 that deep excavation has resulted in creating pool of water which would otherwise have flowed from the catchment area into the Shakti Sagar Lake. Necessary measures be taken in this behalf by the District Administration. Any other persons who may be responsible for having caused illegal mining on their private Khatedari land must also be dealt with in the same manner and all Khatedari rights be cancelled.
In so far as Government land is concerned necessary steps for backfilling of the pits which have been dug out need to be carried out and also ensure that during the ensuing monsoon of 2017 there is no obstruction from the catchment areas where the illegal mining has been carried out for preventing the free flow of water into the Shakti Sagar Lake.
We find from the map that has been appended before us that there are valid mining leases particularly 82/2001, 19/2006, 87/2001 and 126/2005 around Khantipur area the mining Engineer along with other officials shall re-survey the area and in the event of any of them fully or partially obstructing free flow of the water from the 7 catchment from the distributory channels which have been indicated in the said map and the topo-sheet that has been submitted before us necessary action for cancellation of such mining lease shall be at the discretion of the mining department with the help of the revenue officials and the collector Ajmer shall personally supervise the same. In so far the mines at ML No. 7/85 and 38/2006 are concerned we have been informed that the leased area which is towards the eastern side across the water course which runs through it as well as the road / track which run through the said mining area also needs re- consideration. We have been informed that the State Mining Department has taken an undertaking from the lease holder of ML No. 7/1985 that he would not be excavating or utilising the land for mining purposes which lies towards the east and the water channel as well as road / track that runs through mining area. In our view all necessary steps in this behalf need to be taken by the State and the District Administration in case they feel that the undertaking itself would suffice the same must be observed in letter and spirit and it would be the responsibility of the mining engineer of the area to ensure that it is not violated in any manner. In the alternative the State may also consider reducing the lease area if it so feels to the aforesaid extent.
We also find that in and around the village Guardiya several pits have reportedly dug in the catchment area and these also would require backfilling as these are all illegal mining pits as no valid mining leases have been issued in this area.
Having said so we would leave it to the discretion of the District Administration particularly the Collector Ajmer who may have a detailed discussion with the mining officials and the other 8 officials of the water Resource Department, Irrigation Department and village panchayat and the other affected persons for finding an appropriate solution and for implementation of our above directions.
We may also draw the attention of the State Government to the directions issued by this Tribunal in the case of O.A. No. 113/2015 Tilok Ram Vs. State of Rajasthan in connection with the water bodies wherein directions have been issued to ensure no obstruction in the catchment area is allowed to occur to the extent of 5 kms. radius of the water body.
With the aforesaid directions we dispose of this Original Application. The aforesaid task be completed by 30.04.2017. The Learned Commissioner would thereafter inspect the area again between 01.05.2017 and 07.05.2017 under intimation to the Learned Counsel for the parties who in turn may inform the District Administration and the Applicant.
M.A. No. 127/2017 has been filed by the State for placing on record the judgment of the Rajasthan High Court which is related with the issue at hand. The said M.A. No. 127 is allowed and the documents are ordered to be taken on record.
For reporting compliance, list this matter on 16th May, 2017.
.....................................,JM (DALIP SINGH) ...................................,EM (Dr. S.S.GARBYAL) 9 10