National Green Tribunal
Dr. Subhash C. Pandey vs State Of Madhya Pradesh Through The ... on 12 September, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH AT BHOPAL (MADHYA PRADESH)
ORIGINAL APPLICATION NO. 82/2022(CZ)
(I.A. No. 68/2022)
IN THE MATTER OF:
DR. SUBHASH C. PANDEY
S/o Dr. S.K. Pandey
R/o- HIG 1/8 Shivani Complex,
6 no. Stop, Shivaji Nagar,
Bhopal-462016, Madhya Pradesh
...Applicant
Versus
1. STATE OF MADHYA PRADESH
Through the Chief Secretary, Mantralaya,
Vallabh Bhawan, Bhopal- 462004
2. THE PRINCIPAL SECRETARY,
Tourism Department,
Government of Madhya Pradesh
Mantralaya, Vallabh Bhawan, Bhopal- 462004
3. THE PRINCIPAL SECRETARY,
Environment Department,
Government of Madhya Pradesh
Mantralaya, Vallabh Bhawan, Bhopal- 462004
4. THE COMMISSIONER,
Urban Administration and Development Department,
MP Palika Bhawan, Shivaji Nagar
Bhopal- 462016 (M.P.)
5. THE COMMISSIONER,
Bhopal Municipal Corporation
2nd Floor, A Wing, ISBT Campus,
Dr. Ambedkar Marg, Bhopal- 462023 (M.P.)
6. THE EXECUTIVE DIRECTOR
Bhopal Smart City Development Corporation Limited
Kalibadi Road, Sector A, Barkheda
Bhopal- 462023 (M.P.)
1
7. THE MEMBER SECRETARY,
M.P. State Wetland Authority,
EPCO Paryavaran Parisar, E-5,
Arera Colony,
Bhopal- 462016 (M.P.)
8. THE MEMBER SECRETARY,
M.P. Pollution Control Board
Paryavaran Parisar, E-5, Arera Colony,
Bhopal- 462016 (M.P.)
9. THE MEMBER SECRETARY,
M.P. State Biodiversity Board,
26, Kisan Bhavan, Arera Hills,
Bhopal, 462011(M.P.)
...Respondent(s)
Counsel for Applicant:
Dr. Subhash c. Pandey, applicant in person
Counsel for Respondent(s):
Mr. Sachin Kumar Verma, Advocate for State of M.P.
Ms. Parul Bhadoria, Advocate for MPPCB
Mr. Yadvendra Yadav, Advocate for CPCB
Mr. Qasim Ali, Advocate for R-2
Mr. Brajesh Sharma, RO, MPPCB
CORAM:
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Reserved on: July 18, 2023
Pronounced on: September 12, 2023
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This Original Application (hereinafter referred to as 'OA') under Sections 14, 15, 17 and 18 of National Green Tribunal Act, 2010 has been instituted by Dr. Subhash C. Pandey, a resident of Bhopal city, State of Madhya Pradesh (hereinafter referred to as 'applicant'). He claims to be an environmentalist having functioned earlier as Executive Vice 2 Chairperson of 'Haryana Pond and Waste Water Management Authority' and has raised grievance of serious damage and deterioration being caused to Bhopal Lake, commonly as 'Bhoj Wetland' comprising 'Upper Lake' and 'Lower Lake' and other water bodies due to operation of motorized boats and cruise boats. The complaint is more particularly concerned with the damage said to have caused to Upper Lake.
2. Bhopal Wetland is a recognized Ramsar site, a wetland of international significance. Upper Lake is an important source of potable water to the city, spread over about 31 km2 and fulfills the need of drinking water of people of Bhopal City, numbered more than 12 lakhs. Upper Lake also has a great importance to address local climate, vegetation, ground water depletion and ground water contamination of the surrounding area. It has more than 15 kinds of fishes and several vulnerable animals like turtles, amphibians and aquatic invertebrates. More than 2500 migratory birds across the world used to come regularly to this Wetland for breeding and dispersal of seeds, leading to maintenance of biodiversity along their routes. Spill way of Upper Lake is known as 'Kaliasot dam' which is again an alternate drinking water source for the city. Water of 'Kaliasot Dam' is used for agricultural purposes i.e., irrigation of around 4,588 hectares of land. Catchment of Upper Lake is extended in 361 km2 area while water spread area is restricted to 31 km2. In Bhopal Master Plan, 2005, Clause 2.55 - page 39, it is said that no recreational activities should be permitted in the water of Upper Lake since it is fundamentally used for drinking purposes and recreational activities may result adversely on the quality of water of Upper Lake.
3. Government of Madhya Pradesh issued a Notification dated 16.03.2022 which refers to Wetland (Conservation and Management) Rules, 2017 (hereinafter referred to as 'Wetland Rules, 2017') issued by 3 Government of India, Ministry of Environment, Forest and Climate Change (hereinafter referred to as 'MoEF&CC') in exercise of powers under Section 3(1) and (2)(v) and (3) read with Sections 25 and 23 of Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act, 1986'). The said Notification dated 16.03.2022 appended maps showing 'Bhoj Wetland' and its 'Zone of Influence' area by way of maps no. 1, 2 and 3 in appendix 'A' which were approved by Madhya Pradesh State Wetland Authority (hereinafter referred to as 'MPSWA') in its meeting dated 01.02.2022. In view of the aforesaid maps, recommendations were made with regard to 'Prohibited', 'Regulated' and 'Permitted' activities in the wetland, within 50 meters of the wetland boundary and in the Zone of Influence.
4. Notification dated 16.03.2022 says that State Government has granted administrative approval to the Full Tank Level (hereinafter referred to as 'FTL') boundary of wetland and therefrom the area of 50 meters and Zone of Influence is shown in maps A-1, 2 and 3. On the basis of the said maps, area of Bhoj Wetland, as per FTL, is determined as 3946.33 hectares (Upper Lake 3872.43 hectares + Lower Lake 73.90 hectares) and the said determination is approved by State Government. Notification dated 16.03.2022 also prescribes the protected distances of urban, rural and Kolans River as also the streams and drains (major and minor streams) meeting Bhoj Wetland and Zone of Influence as under:
"i. शहरी क्षे त्र की ओर BWL के FTL के आसपास 50मी का बफर - मानचित्र क्र. 1 ii. ग्रामीण क्षे त्र की ओर BWL के FTL के आसपास 250मी. बफर- मानचित्र क्र. 2 iii.कोलाां स नदी के आसपास 250मी. बफर - मानचित्र क्र.3 iv. कैिमें ट प्रमु ख स्ट्रीम के आसपास 50मी बफर - मानचित्र क्र.3 v. कैिमें ट के माइनर स्ट्रीम के आसपास 09मी बफर - मानचित्र क्र.3"
English Translation by Tribunal:
i. 50m buffer around FTL of BWL towards urban area - Map no. 1 4 ii. 250m buffer around FTL of BWL towards rural area - Map no. 2 iii. 250m buffer around Kolans River - Map no. 3 iv. 50m buffer around the catchment main stream - Map No. 3 v. 09m buffer around minor stream of catchment - Map No. 3"
5. The prohibited, regulated and permitted activities mentioned in para 4 - A, B and C, respectively, of Notification dated 16.03.2022 are made effective as under:
"A. प्रतिबंधिि गतिविधिय ं (Prohibited Activities) वेटलैण्ड नियम 2017 का पालि सुनिश्चित करिे हे तु भोज वेटलैण्ड एवं उसके Zol में Prohibited गनतववधियों का निम्िािुसार नििाारण ककया जाता है । भोज वेटलैण्ड के Full Tank level (FTL) से 50 मी. तक निमााण व अन्य गनतववधियां निम्िािुसार पूणत ा :
प्रनतबंधित की जाती हैं -
Prohibited activities in Bhoj Wetland and its ZoI are determined to ensure compliance with the Wetland Rules 2017 as follows: 50 meters from the Full Tank Level (FTL) of Bhoj Wetland and construction & other activities are completely restricted as follows -
(English Translation by Tribunal) i. Conversion for non-wetland i. ककसी भी ककस्म के अनतक्रमण सहहत uses including encroachment of गैर वेटलैण्ड उपयोग हे तु पररवताि any kind;
ii. Setting up of any industry and ii. ककसी भी उद्योग को स्थावपत करिा expansion of existing एवं ववद्यमाि उद्योगों का ववस्तार industries;
करिा iii. Manufacture or handling or storage or disposal of iii. निमााण एवं अपशिष्ट प्रबंिि नियम construction and demolition 2016 के अंतगात आिे वाले निमााण waste covered under the और अपशिष्ट का ववनिमााण या Construction and Demolition Waste Management Rules, निपटाि, पररसंकटमय रसायि के 2016; hazardous substances ववनिमााण, भण्डारण और आयात covered under the निमााण नियम, 1989 या Manufacture, Storage and Import of Hazardous Chemical पररसंकटमय सूक्ष्म जीवों, Rules, 1989 or the Rules for the आिुवशं िक रूप से निशमात जीवों या Manufacture, Use, Import, कोशिकाओं का उपयोग, आयात, Export and Storage of नियाात, और भण्डारण संबि ं ी नियम, Hazardous Microorganisms/Genetically 1989 या पररसंकटमय अपशिष्ट Engineered Organisms or cells, (प्रबंिि, और सीमा पार संिालि) 1989 or the Hazardous Wastes नियम 2008 के अंतगात आिे वाले (Management, Handling and Transboundary Movement) पररसंकटमय पदाथा, ई- अपशिष्ट, 5 Rules, 2008; electronic waste (प्रबंिि) नियम, 2016 के अंतगात covered under the E-Waste आिे वाले ई- अपशिष्ट (Management) Rules, 2016;
iv. Solid waste dumping; iv. ठोस अपशिष्ट का निष्पादि;
v. Discharge of untreated wastes v. उद्योगों, िहरों, कस्बों, गांवों और and effluents from industries, अन्य मािव बश्स्तयों, से अिोधित cities, towns, villages and other अपशिष्ट और बहहस्रावों का human settlements;
निष्पादि vi. Any construction of a vi. ककसी भी स्थायी प्रकृनत का निमााण permanent nature except for शसवाय िाव घाटों के, तालाब के boat jetties within fifty metres (50) from the mean high flood 50 मीटर के भीतर प्रनतबंधित level observed in the past ten रहें गे।
years calculated from the date of Commencement of these rules; and, vii. अवैि शिकार vii. Poaching.
B. वितियमिि गतिविधिय ं (Regulated Activities) -
िगर निगम, भोपाल द्वारा भोज वेटलैण्ड एवं उसके Zone of Influence में मलजल उपिार संयत्र ं / सीवेज पंप हाउस (STP/SPH) स्थावपत ककये जािे के प्रस्ताव को ववनियशमत गनतववधियों में सम्मशलत ककया जाता है । वेटलैण्ड नियम 2017 का पालि सुनिश्चित करिे हे तु भोज वेटलैण्ड एवं उसके Zol में Regulated गनतववधियों का निम्िािुसार नििाारण ककया जाता है - The proposal to establish Sewage Treatment Plant/Sewage Pump House (STP/SPH) in Bhoj Wetland and its Zone of Influence by Municipal Corporation, Bhopal is included in the regulated activities. The regulated activities in Bhoj Wetland and its ZoI are determined as follows to ensure compliance of the Wetland Rules 2017, -
(English Translation by Tribunal) i. Subsistence level biomass i. जीवि निवााह योग्य मात्रा में बायोमास harvesting (including निकालिा (परं परागत तरीकों सहहत) traditional practices);
ii. Sustainable culture fisheries ii. सांधाररत मछलीपालन practices (in private lands);
iii. Plying of non-motorized boats; iii. गैर- मोटर िाचलत नावोां का सांिालन iv. Desilting, in case where iv. डीचसल्टां ग चडवीचडां ग करते समय यह ध्यान wetlands inflow regimes and रखा जाए चक वेटलै ण्ड के जल स्रोत एवां जल water-holding capacity are ग्रहण क्षमता में कोई प्रभाव न हो (नोट- impacted by siltation (note that तालाब गहरीकरण एवां डीचसल्टां ग दो अलग-अलग चक्रयाकलाप हैं )।
6 'deepening' activities are not the same as 'desilting'); & v. Construction of temporary v. अस्थाई प्रकृचत के चनमाा ण । nature.
vi.नगर चनगम, भोपाल द्वारा मलजल उपिार vi. Construction of STP/SPH by सांयांत्र/चसवेज पम्प हाउस का चनमाा ण। Municipal Corporation, Bhopal C. अिुज्ञ ि गतिविधिय ं (Permitted Activities)-
वेटलैण्ड नियम 2017 का पालि सुनिश्चित करिे हे तु भोज वेटलैण्ड एवं उसके Zol में Permitted गनतववधियों का निम्िािुसार नििाारण ककया जाता है ।
The permitted activities in Bhoj Wetland and its Zol are determined to ensure compliance with Wetland Rules 2017, as follows.
(English Translation by Tribunal) भारत सरकार द्वारा जारी वेटलैण्ड नियम कक्रयान्वयि i. पाररश्स्थनतक पुिवाास एवं मागादशिाका (15.क्र .प)ृ 2020 अिुसार ऐसी गनतववधियां प्रकृनत का पुिनिामाण श्जिके कारण वेटलैण्ड के Wise Use की पररकल्पिा साकार ii. वेटलैण्ड इंवेन्री मूल्यांकि होती है , वेटलैण्ड एवं Zol में Permit की जा सकती हैं।
एवं मॉिीटररंग उपरोक्त मागादशिाका अिुसार निम्िशलखित गनतवधियां भोज वेटलैण्ड और उसके Zol में Permitted Activities की iii. िोि काया श्रेणी में होंगी -
According to the Wetland Rules iv. संप्रेषण, पयाावरण शिक्षा Implementation Guide (15 No. Page) 2020 और जि- भागीदारी issued by the Government of India, such कायाकलाप activities which fulfill the concept of Wise Use of Wetland can be permitted in Wetland and Zol. According to the above v. प्रबंिि नियोजि guide, the following activities will be in the category of Permitted Activities - research vi. वेटलैण्ड आिाररत पक्षक्षयों work in Bhoj Wetland and its Zol.
(English Translation by Tribunal) का संरक्षण एवं उिके
प्राकृनतक रहवास का प्रबंिि
i. Ecological rehabilitation and
rewilding of nature;
vii. समुदाय आिाररत ईको-
ii. Wetlands inventory, assessment and टूररज्म (कम से कम
monitoring;
निमााण गनतववधियां सहहत)
iii. Research;
viii. पुियोजी क्षमता अिुसार
iv. Communication, environmental वेटलैण्ड के प्राकृनतक उत्पादों
education and participation activities;
का संतुशलत दोहि
v. Management planning;
ix. जलवायु पररवताि समस्या
के निदाि के शलए प्राकृनतक
7
vi. Habitat management and संसािि आिाररत
conservation of wetland-dependent अिुकूलि एवं िमि हे तु
species;
वेटलैण्ड का एकीकरण
vii. Community-based ecotourism (with
minimum construction activities);
viii. Harvesting of wetlands products
within regenerative capacity; and,
ix. Integrating wetlands as nature-
based solutions for climate change
mitigation and adaptation.
6. Notification dated 16.03.2022 is said to be effective from the date of issue of the administrative order i.e., 16.03.2022. The said Notification declares plying of 'non-motorised boats' as a 'Regulated Activity'.
7. Applicant has said that without looking to the importance of Upper Lake of Bhoj Wetland and the statutory prohibition and restrictions etc., respondents State Government and its authorities are adamant to damage water bodies like Upper Lake (of Bhoj Wetland) and other bodies.
8. Bhopal Smart City Development Corporation Limited (hereinafter referred to as 'BSCDCL') i.e., respondent 6 issued a tender notice dated April 2021 for development and operation of 'Cruise restaurant' at Upper Lake of Bhopal.
9. Madhya Pradesh Tourist Board (hereinafter referred to as 'MPTB') issued a notice dated 21.02.2022 inviting 'Expression of Interest' for organizing/operating Cruises at various water bodies of State of Madhya Pradesh giving details of water bodies, river(s), lake(s) and reservoirs, as under:
S.No. Name of Water Bodies Place
1 Water body of Indira Sagar Khandwa
Dam (including Narmada and
other tributaries)
8
2 Water body of Omkareshwar Mandhata, Khandwa
Dam (Narmada and other
tributaries)
3 From Barwani Point to Sardar Barwani
Sarovar Dam - Statue of Unity
(River Narmada)
4 Water body of Tawa Dam Hoshangabad
(including Tawa, Denawa and
other tributaries)
5 Water body of Bargi Dam Jabalpur
(including Narmada and other
tributaries)
6 Water body of Ban Sagar Dam Shehdol
(including Son and other
tributaries)
7 Water body of Gandhi Sagar Mandsour
Dam (including Chambal and
other tributaries)
8 Water body of Manikheda Dam Shivpuri
(including Sindh and other
tributaries)
9 Water body of Halali Dam Raisen
(including Halali and other
tributaries)
10 Water body of Chandpatha Shivpuri
Dam (Distrirct Shivpuri)
11 Water body of Chaural Dam Mhow, Indore
(including Chaural and other
tributaries)
12 Water body of Barna Dam Raisen
(including Barna and other
tributaries)
13 Water body of Mann Dam (Dhar) Dhar
14 Water body of Jobat Fata Dam, Alirajpur
(including Hathni River and other
tributaries)
15 Water body of Dholabad Dam, Ratlam
(including Jamadh River and other
tributaries)
16 Water body of Tigra Dam, Gwalior
Gwalior
9
17 Water body of Govindgarh, Rewa
Rewa
18 Water body of Kolar Dam, Bhopal
Bhopal
19 Water body of Machagora, Chhindwara
Chhindwara
20 Water body of Sapna Dam, Betul Betul
10. Without any statutory permission, clearance, consent or No Objection Certificate (hereinafter referred to as 'NOC') from the Competent Authorities, BSCDCL and MPTB started construction activities within the prohibited area of Upper Lake and even trees were cut illegally. Operation of cruise ship/boat also started without statutory permissions. These facts were published in newspapers, copies whereof have been filed collectively as annexure A-6.
11. Action of MPTB in organizing Cruises in rivers, lakes and water bodies which mainly comprise river Narmada and its tributaries ignores the fact that rivers, lakes and water bodies are very sensitive for State of Madhya Pradesh; Narmada is the only perennial river providing water for drinking, agriculture and fishing activities to millions of people regularly and round the year and activities like running of Cruises would cause damage to the quality of water of river and its tributaries. It is really reprehensible that a government department of State itself is launching Cruise boats and Cruise restaurants in the water of River Narmada which is considered to be a very pious and holy river and various religious rituals are performed at its bank at various places. The damage caused from Cruise ships/boats is very drastic. Even a small Cruise ship/boat carrying hundreds of passengers is comparable with a floating colony where volumes of waste is generated besides sewage on account of various daily 10 activities and it is hazardous to environment in many ways.
12. Reference is made by applicant to the research report of a German Environmental Organization, publishing its findings that pollution from Cruise ship is massive. Ships run by motors using dirties fuel i.e., heavy fuel oil which is toxic and contains a lot of dirty stuff. Even a mid size Cruise ship can be used as much as 150 tons of fuel every day emitting as much particulate as one million cars. Cruise ships, in fact, are a catastrophe for environment. They dump toxic waste into water, fill the planet with Carbon Dioxide and kill marine wildlife. Eventually, Cruise ships contaminate potable water of river and pollute environment like anything. Carbon emissions and dangerous particulates emitted by Cruise ships are caused by the quantity and quality of the fuel used by these floating citadels i.e., Cruise ships. It increases substantially, level of nitrogen oxide which is linked to acid rain, higher rates of cancer and other forms of respiratory diseases.
13. Applicant states that the act of organizing/operating/running of Cruises in rivers, lakes and tributaries etc. is direct violation of the provisions of EP Act, 1986, Water (Prevention and Control) Act, 1974 (hereinafter referred to as 'Water Act, 1974'), Air (Prevention and Control) Act, 1981 (hereinafter referred to as 'Air Act, 1981') and Biological Diversity Act, 2002 (hereinafter referred to as 'BD Act, 2002').
14. A research paper was also published on the case study of Narmada River system in India by Utpal Bhaumik, M.K. Mukhopadhyay, N.P. Shrivastava, A.P. Sharma and S.N. Singh under Central Inland Fisheries Research Institute, Barrackpore, Kolkata (hereinafter referred to as 'CIFRI'). Research paper says that Narmada River, synonymous with Goddess Narmada Mai, has immense aesthetic and religious significance 11 to Indians, especially the people of central and western regions. River originates near Amarkantak at about 1050 meters above Mean Sea Level (hereinafter referred to as 'MSL') in the Maikaley highlands, flows westward through the hilly terrain and highlands of Madhya Pradesh, and descends to the Potamon plains in Gujarat before merging with the Gulf of Cambay on the West coast. Total length of river is 1312 km, and wholly fed with run-off discharge from a 98,796 km2 catchment in Madhya Pradesh, Gujarat and Maharashtra. Fish fauna of Narmada River system has recorded 40 species from Satpura range, and Karamchandani etc. in 1941 which in 1990 came to be identified as 77 species from the Upper and Middle zones.
15. In 1991, another Researcher prepared a list of 84 species of fishes in the system. The man-made obstructions created due to various valley projects have resulted in dropping of riverine production indicating adverse impact on the natural river flow and subsequent hydro-ecological changes. The annual catch during pre-dam period was much more than it was in post-dam period. The changes in population structure of fish occurred due to alteration in habitat conditions. Any man-made activity or external activity affecting hydro-ecological condition of river water is bound to affect flora and fauna. Eco-region of River Narmada retains large connected blocks of habitats for many Indian large animals like tiger, common leopard, garu, wild dog, sloth bear and black buck. Only solution for conservation and protection of aquatic lives and precious wild life is to stop pollution in river Narmada. Launching of Cruise in River Narmada, instead of protection, will cause enhancive environmental damage and, therefore, Cruises need to be prohibited from their operation in River Narmada, its tributaries and protected wetlands/water bodies.
16. Increase in Tourism by itself may be welcomed but if there is any 12 hindrance in the nesting process of turtles and other aquatic animals and nearby natural habitats of wild animals then such tourism activities have to be restricted, checked and properly monitored. Unmindful, casual and shallow approach with an eye only on Tourism will have potential negative impact on aquatic and land biodiversity of the river. Fishing activities will have to be checked in the 'water paths' of Cruise ships. Life of dependents on riverine ecology will also be adversely affected which would include Adivasis and fishermen.
17. When applicant came to know about launching of Cruises in holy River Narmada and its tributaries, he drew attention of Principal Secretary, Department of Environment of Madhya Pradesh Government to the ecological and environmental hazards likely to be caused by such activities by sending letter/representation dated 01.09.2022 (annexure A- 10 at page 53 of paper book). Similar complaints dated 01.09.2022 were sent to Commissioner, BMC; Executive Director, BSCDCL; Principal Secretary, Tourism Department, Government of Madhya Pradesh and Member Secretary, MP State Wetland Authority.
18. Pursuant to applicant's complaint dated 01.09.2022, Madhya Pradesh Pollution Control Board (hereinafter referred to as 'MPPCB') sent a letter dated 21.09.2022 to Deputy Director (Adventure), MPTB, requiring it to response to the objections raised by applicant and provide details of statutory permissions etc., if any, obtained by it.
19. Similar query was made by MPSWA vide letter dated 20.09.2022 from Executive Director, MPTB Bhopal and Commissioner, BMC.
20. However, ignoring all such objections and without responding to the queries made by MPPCB and MPSWA, the BMC, BSCDCL and MPTB had continued in their activities and it has been reported in the newspapers 13 that construction on about 10,000 sq.ft. of land has been raised on the wetland site and zone of influence of Bhoj wetland and no permission from any Statutory Regulator has been obtained. These newspaper reports collectively have been filed as annexure A-13, A-14 and A-15.
21. Relying on Apex Court's decision in Hinchlal Tiwari vs. Kamala Devi and others, (2001) 6 SCC 496, M.K. Balakrishnan (1) and others vs. Union of India and others, (2009) 5 SCC 507, State of Orissa vs. Government of India & Another (2009) 5 SCC 492, Indian Council for Enviro-Legal Action etc. vs Union of India and Others AIR 1996 SC 1446 and Vellore Citizen Welfare Forum v Union of India, 1996(5)SCC647, applicant has pleaded that clean environment including river water is a fundamental right of citizen under Article 21 of Constitution of India and State is under an obligation to protect and improve the environment, safeguard forest and wildlife as per the directive principles stated in Article 48-A part IV of the Constitution and also under fundamental duty to protect and improve natural environment including forests, lakes, rivers and wildlife as provided in Article 51-A(g) of the Constitution.
22. It is also stated by applicant that during rainy season, Cruise, operating in Upper Lake, was damaged due to heavy rains and due to leakage and partial drowning of Cruise, there was spillage of more than 200 liters of diesel into the water body and polluted water was supplied to citizens of Bhopal causing health hazards to the residents of the city. The Operators did not obtain any technical certificate against guarantee of leakage and spillage proof technology and there is always probability of spillage in Cruise while re-filling the storage tank.
23. Applicant has prayed that launching, sailing and operation of Cruise 14 ships, Cruise restaurants and diesel motor boats in Upper Lake Bhopal and other drinking water reservoirs/water bodies of State of Madhya Pradesh including holy river Narmada be directed to be stopped; all construction activities in the wetland area/flood plain zones of rivers, Zone of Influence of wetlands including green belt should be stopped; penal and punitive actions be taken against erring respondents and their officials; and appropriate environmental compensation be assessed against violators on the Principle of 'Polluter Pays'.
24. Tribunal looked into the complaint of applicant and considered the same in its order dated 21.10.2022 and issued notice to the respondents requiring them to file their response.
25. Tribunal also issued notice on IA 68/2022 whereby prayer for interim order for stopping construction activity was made and observed that it expects that the authority shall follow Guidelines under Water Act, 1974 and Air Act, 1981. The authorities were directed to file their objections, if any, to IA 68/2022 within one week.
26. It appears that MPPCB, on its own, constituted a joint Committee comprising Shri Brijesh Sharma, Regional Officer, Bhopal, Shri A.K. Bisen, Executive Engineer, Bhopal and Shri Salman Khan, Sub-Engineer, MPPCB, Bhopal who inspected the site of Upper Lake on 22.11.2022 and submitted an inspection/action taken Report observing that a Cruise is operating in Upper lake at the capacity of 80 passengers; installed with dual diesel engine of 125 HP capacity; one Beta Marine make DG set of 12.3 KVA is installed for power back up; Cruise ship operation starts at 2 pm every day and as per the information provided by MPTD, generally there is one trip on working days and 3-4 trips on holidays. On other aspects, Committee said that there was no pollution or wastage on the 15 water surface and quality of water of Upper Lake is also regularly monitored by MPPCB under National Water Monitoring Programme (hereinafter referred to as 'NWMP') of Central Pollution Control Board (hereinafter referred to as 'CPCB'). The observations made in the said report read as under:
"1. The Upper Lake is situated in the western part of Bhopal, The Lake is located at latitude "23.2429" N and longitude "77.38119"
E.
2. The main source of water in the Upper Lake is surface runoff generated due to rainfall in its catchment area. The Upper Lake is having an area of approx 31 Sq. Km.
3. Presently one Cruise ship is operated by MP Tourism deptt, Bhopal from Boat Club location on Upper Lake.
4. Cruise ship is having two floors with sitting arrangement. No outside food is allowed on the cruise.
5. Food is supplied by Wind & waves restaurants of MP Tourism deptt and served in the dining room covered from all side.
6. Check post at the entry of cruise is setup for checking of passengers by staff of Cruise ship for not taking food with us. Instructions and sign boards are placed on the cruise.
7. The details of the cruise are as under:
i. The cruise having the capacity of 80 Passenger. ii. Cruise is installed with dual diesel engine of 125 HP capacities of John deer make.
iii. As per the specification, diesel engines are designed for marine purposes with leakage and spillage proof technology.
iv. The water is used as lubricant in the engine shaft. v. One Beta Marine make DG set of 12.3 KVA is installed for power back up.
vi. These engines are designed with no emission vent. vii. The diesel engine and DG set are installed within the enclosed area of the cruise with leak proof arrangement. viii. CCTVs are fitted in the Cruise ship for monitoring the working of engine and passenger area.
16 ix. One urinal is provided with waste water collection tank of 100 litres capacity.
x. The waste water tank is detached from the cruise and sent to Nagar Nigam for further disposal and treatment. xi. For solid waste collection 03 nos. of colour coded dustbins are provided on the cruise.
xii. Sufficient number of staffs is deputed on cruise for cleaning and disposal of waste material and for safety purposes.
xiii. A wired mesh with long handle is also available at the cruise for collection of debris if found floating on the water.
xiv. No spillage or seepage of diesel is observed on and near the engine area. Also no traces are observed on the floor where engine is mounted.
8. Operation of the cruise ship trip starts from 2:00 PM every day. As per the information provided by M P Tourism deptt in general there is one trip on working days and 3-4 trips on holidays.
9. The area near the Boat club is found clean from garbage and proper dust bins are found installed at suitable places. Nagar Nigam vehicle regularly picked the solid waste from this area.
10. No floating waste is observed on the surface of upper lake water near the cruise.
11. The intake water supply points of upper lake are marked on Google map and enclose as Annexure - II
12. The water quality of Upper Lake is regularly monitored by MPPCB under National Water Monitoring Programme (NWMP) of Central Pollution Control Board. Comparing the analysis reports of previous years, the quality of upper lake water falls between A to B category. The reports are enclosed as Annexure - III
13. As per above observations no visible impact is observed on the upper lake."
27. Applicant filed a detailed objections dated 07.12.2022 to the above report of MPPCB stating that no scientist was involved during visit; the report is confined to Upper Lake Bhopal though applicant has referred to 21 precious drinking water bodies of State including Upper Lake for consideration; report is superficial by way of combined site visit along with the officials of MPTB and is not an independent Report; Committee Report 17 does not show anything about the amount of Fast Moving Consumer Goods and non- Fast Moving Consumer Goods packaging like plastic etc. found at Cruise during inspection; no details of diesel storage tank capacity is given; no certificate is referred giving guarantee of leakage and spillage proof technology of Cruise and in fact, no technology is evolved which claims leakage and spillage proof; while filling diesel in storage tank, task performed is manual and there is always probability of spillage of diesel/fuel in the Cruise or the water body; report wrongly says that water is used as "lubricant" in engine shaft in as much as water cannot be served as a lubricant; in fact, it is used as "coolant" for the engine, and this will also affect water quality of Upper Lake badly which in turn will affect aquatic life; there is violation of Section 24(1)(a) of Water Act, 1974 but no reference is mentioned thereof; there is a false statement that engines are designed with no emission vent in as much as three diesel engines were installed in the Cruise ship and basic theory of combustion of fuel is based on to create power which will indeed generate some emissions; emissions will increase when diesel engine gets older; no diesel engine is designed for 100% combustion efficiency; emission/common gaseous pollutants from a diesel engine are unburnt hydrocarbon (HC), carbon monoxide (CO), nitrogenous oxides (NOx) and particulate matter (PM); these hazardous emissions when come in contact of water vapours and dissolved in water, will produce mineral acids and increase acidity of the potable water which is measured as hydrogen in concentration (pH); drinking water body should always be having pH in the range of 6.5 to 8.5; report does not mention about frequency of maintenance of DG set still says that DG sets with leak proof arrangement have been installed; factum of CCTV in the Cruise ship is mentioned for monitoring working of engine and passenger area and does not explain how CCTVs are helpful to monitor water quality of Upper Lake, before and after Cruise movement, air quality and possible 18 leakage from the ship into water and damage to aquatic life by the engine propeller which is submerged in the water; propeller coupled with 125 HP diesel engine shall cause potential damage to aquatic life, flora and fauna; decrease biodiversity of the precious water body which has already been deteriorated by many reasons; Board visit was planned with the involvement of MPTB officials and to suggest that there was no seepage or oil spillage on the engine area or floor of the Cruise is nothing but a misrepresentation and false; report has been drafted/prepared by MPPCB officials only to favour MPTB particularly when no such Report was called upon by this Tribunal vide order dated 21.10.2022 and instead respondents were directed to file their response to OA; Report also ignores the fact as to when Cruise ship closes everyday and how much diesel it consumes and create sewage and other waste everyday as no such register was maintained; applicant himself has seen sailing of the same Cruise ship at around 9:00 pm night in very high intensity of bright flood light of more than 1500 lux along with very strong noise pollution of more than 110 dB on Sunday (04.12.2022); sampling from only 4 stations of a huge water body spread over 31 square kilometer cannot justify the alleged monitoring of water quality by MPPCB; and the Report shows insincerity and dutylessness on the parts of officials of MPPCB.
Reply dated 12.12.2022 by Respondent 1, 3 and 7:
28. On behalf of respondent 1 i.e., State of Madhya Pradesh, Chief Secretary), respondent 3 i.e., Principal Secretary, Tourism and respondent 7 i.e., Member Secretary, MPSWA, reply dated 12.12.2022 has been filed collectively. The reply states that MPSWA was constituted vide order dated 02.01.2018 as per Rules 5(1) of Wetland Rules, 2017; MPSWA is a statutory body enjoying with powers and functions under Rule 5(4) of Wetland Rules, 2017; Bhoj Wetland (Upper and Lower Lake) is a wetland 19 designated as Ramsar Site of State of MP since 2002; Wetland rules, 2017 are applicable to Bhoj Wetland; MPSWA has regularly written letters to Collector BMC and other stakeholders to ensure compliance of Wetland Rules, 2017, copy of such letters dated 20.12.2021, 04.05.2022 and 16.06.2022, collectively, are filed as annexures R-1/2; MoEF&CC issued guidelines in 2020 to ensure effective implementation of Wetland Rules, 2017 in furtherance whereof State of MP issued order dated 16.03.2022 defining prohibited, regulated and permitted activities in Bhoj Wetland and its Zone of Influence; only construction of temporary nature in the Zone of Influence at Bhoj Wetland is mentioned as a Regulated Activity and community based eco-tourism (with minimum construction activity) is mentioned as Permitted Activity; MPSWA has written letter dated 17.03.2022 to all stakeholders, departments, collector Bhopal and commissioner BMC to ensure compliance of order dated 16.03.2022;
applicant's representation was received by MPSWA whereafter it sent a letter dated 20.09.2022 to Collector Bhopal, Commissioner BMC and MPTB seeking ground factual report from them and also making a request to comply Wetland Rules, 2017 and MP Government's order dated 16.03.2022; on the recommendation of MPSWA, MP Government, Department of Environment has constituted 'District Wetland conservation Committee' vide order dated 26.08.2022 under Chairmanship of District Collector of each district and lastly it is said that MPSWA is performing all its duties and functions strictly as per Wetland Rules, 2017.
Status report filed by RO MPPCB, Bhopal in reference to Tribunal's order dated 28.11.2022:
29. Status Report in respect of various water bodies and status of Cruise operation, has been filed giving details as under:
S. Under Name Of Place Status of Remark 20 No. Regional Water Cruise Office Bodies Operation 1 R.O. Indore Water Body Khandwa Cruise is Report as of Indira in per Sagar Dam operation enclosed (Including Annexure- Narmada I And Other Tributaries) 2 Water Body Mandhata, Cruise is of Khandwa in Omkareshwar operation Dam (Narmada And Other Tributaries) 3 From Barwani No Cruise Barwani is in Point To operation Sardar Sarovar Dam-Statue of Unity (River Narmada) 4 Water Body Mhow, Indore No Cruise of Chaural is in Dam operation (Including Chaural And Other Tributaries) 5 R.O, Water Body Dhar No Cruise Report as Pithampur of Mann Dam is in per (Dhar) operation enclosed Annexure- 6 Water Body Alirajpur No Cruise II of Jobat Fata is in am (Including operation Hathni River And Other Tributaries) 7 R.O. Water Body Hoshandabad Cruise is Report as Mandideep of Tawa Dam in per (Including operation enclosed Tawa, Annexure- Denawa And III Other Tributaries) 8 Water Body Raisen No Cruise of Halali is in 21 Dam operation (Including Halali And Other Tributaries) 9 Water Body Raisen No Cruise of Barna is in Dam operation (Including Barna And Other Tributaries) 10 R.O. Water Body Chhindwara No Cruise Report as Chindwara of is in per Machagora, operation enclosed Chhindwara Annexure- IV 11 Water Body Betul No Cruise of Sapna is in Dam, Betul operation 12 R.O. Water Body Shivpuri No Cruise Report as Gwalior of is in per Manikheda operation enclosed Dam Annexure- (Including V Sindh And Other Tributaries) 13 Water Body Shivpuri No Cruise of is in Chandpatha operation Dam (District Shivpuri) 14 Water Body Gwalior Cruise is of Tigra Dam, in Gwalior operation
15 R.O. Ujjain Water Body Mandsour No Cruise Report as of Gandhi is in per Sagar Dam operation enclosed (Including Annexure-
Chambal VI
And Other
Tributaries)
16 Water Body Ratlam No Cruise
of Dholabad is in
Dam operation
(Including
Jamadh
River And
Other
22
Tributaries)
17 R.O. Rewa Water Body Rewa No Cruise Report as
of is in per
Govindgarh, operation enclosed
Rewa Annexure-
VII
18 R.O. Water Body Shehdol No Cruise Report as
Shehdol of Ban Sagar is in per
Dam operation enclosed
(Including Annexure-
Soun And VIII
Other
Tributaries)
19 R.O. Jabalpur Cruise is Report as
Jabalpur in per
operation enclosed
Annexure-
IX
Water Quality Monitoring - The water quality monitoring of the water bodies where cruise are in operation are carried out by the concerned Regional Office of MPPCB and the report is submitted. The water quality analysis report of the water bodies are compared with IS 2296:1992 Indian Bureau Standard for primary water criteria, the water quality of the water bodies/ river/ lakes/ reservoir is found between "A and B" category."
30. With regard to water quality monitoring also, it is said that the same is monitored by concerned offices of MPPCB as per the prescribed standards with IS 2296:1992 Indian Bureau Standard for primary water criteria.
Reply dated 12.12.2022 filed by respondents 4, 5 and 6:
31. Separate reply has been filed by respondent 4, 5 and 6 i.e., Commissioner, Urban Administration and Development Department, MP, Commissioner BMC and Executive Director, BSCDCL respectively. It is said that definition of 'wetland' under Wetland Rules, 2017 does not include river channels, human-made water bodies/tanks constructed for drinking purposes, structures specifically constructed for aquaculture, salt production, recreation and irrigation purposes etc.; applicant is mixing up issue of wetlands and other water bodies, illegally, by referring 23 to Wetland Rules, 2017 though Rules, 2017 are not applicable to other water bodies which are not wetlands; MP Tourism Policy formulated by Government has accorded highest priority for conservation and preservation of natural resources and beauty at eco-tourism destinations;
has planned development of tourism facilities near major water bodies in a proper manner and one of the relevant part of the policy is Cruise Tourism; MP State Tourism Policy 2016 as amended in 2019 was formulated with a vision to promote balanced and sustainable tourism which further would enable socio-economic development, generate employment opportunities and establish Madhya Pradesh as a destination which provide a complete tourism experience; as per the Policy, State Tourism Promotion Council shall be established at State Level under the Chairmanship of Chief Minister; in various parts of State, cultural and tourism centric events are organized at local levels for which District Tourism Promotion Council (hereinafter referred to as 'DTPC') is constituted with strict adherence to Tourism Policy 2016 and detailed Guidelines and elaborated activities of District Level Tourism Council have been issued by the Department of Tourist of State of MP; the name of DTPC is now changed to District Archaeology Tourism Culture Council Bhopal (hereinafter referred to as 'DATCC'); Department of Tourist has authority to undertake tourist activities in the water bodies under the jurisdiction of Narmada Valley Development authority, Water Resources Department and State Government; after proper investigation of carrying capacity of water bodies by Competent Authorities, DATCC invited applications for establishing project by issuing a 'Request for Proposal' (hereinafter referred to as 'RFP') for development and operation of Cruise restaurant at Lake in Bhopal; M/s. Swastika SPV Pvt. Ltd, was a successful bidder to establish and operate and accordingly license agreement was executed between DATCC and M/s Swastika SPV Pvt. Ltd. on 15.07.2021 to use piece of 24 land for project/ Cruise operation/boarding and hospitality services on khasra no. 98/1/2 admeasuring 4500 sq.ft. situated at Dharampuri, Van Vihar Road, Ward no. 24, Tehsil Huzur, District Bhopal for a period of 15 years which is extendable for a period of 5 years; DATCC vide letter dated 18.02.2022 directed Managing Director of M/s. Swastika SPV Pvt. Ltd. to obtain prior statutory permissions from all the concerned departments before operation of Cruise restaurant in Upper Lake Bhopal and only thereafter, the work should start; State Government's Department of Environment under the 'Regulated Activities' has allowed construction of temporary nature and in the 'Permitted Activities' has allowed Community based Eco-tourism with minimum construction activity; construction of waiting lounge and jetty are covered within regulated and permitted activities formulated by State Government; BMC vide letter dated 10.10.2022 granted construction permission of temporary nature in the shape of jetty and waiting lounge for operation of Cruise restaurant in favour of DATCC; there is no contamination of water of river and pollution of environment since waiting lounge and jetty for boarding the passengers in Cruise is an artificial temporary construction, designed in a manner where no pollution will be caused to lake and even there will be zero discharge of sewerage and solid waste from the Cruise ship; proper arrangements will be made for storage, sewerage and solid waste which can be removed at ashore; list of water bodies addressed by applicant are either dams used for irrigation purpose or source of drinking water, hence Wetland Rules, 2017 are not attracted in respect of such water bodies; applicant has failed to establish as to under which environmental provisions and regulations, launching of Cruise ships in different water bodies including holy River Narmada and Upper Lake Bhopal is unauthorized and illegal; and construction of waiting lounge and jetty in the vicinity of Upper Lake for boarding 25 passengers in Cruise restaurant is permissible and Regulated Activity under Wetland Rules, 2017.
Reply dated 07.01.2023 filed by respondent 2:
32. It is said that MP State Tourist Development Corporation (hereinafter referred to as 'MPTDC') is the nodal agency under Department of Tourism, Government of Madhya Pradesh, with a mandate to develop tourism infrastructure in the State; respondent 2 has not launched any Cruise restaurant in Upper Lake or anywhere in State of Madhya Pradesh;
Cruise boat at Bhopal is owned by MPTDC having permission and sanction from MP Lake Conservation Authority (hereinafter referred to as 'MPLCA') which works under the ambit of BMC; permission by MPLCA has been granted to install Cruise boat at Upper Lake Bhopal, an advisory/report dated 29.12.2005 was issued and prepared by Senior Research Officer, MPLCA, Bhopal providing details regarding installation of Cruise ship and conditions to be followed; Cruise boat installed at Upper Lake Bhopal runs on the advance technology of 'John Deere engine' which not only control emission and oil spillage from the Cruise but also substantially low down noise level; Cruise boat at Upper Lake Bhopal was launched 15 years back and engine on board is certified by European Pollution Agency having 99.9% combustion and negligible Carbon emission; only food is served at Cruise boat supplied from outside and the same has nothing to do with the preparation of food on the boat; MPSTDC has not started a Floating Restaurant having facilities for preparation of food within State of Madhya Pradesh; no garbage or bilge waste is discharged in the Lake; burnt oil waste and toilet discharge is taken ashore and disposed as per Rules and Regulations, and its record is maintained by MPSTDC; engine installed at Cruise boat Bhopal runs on an average of 11 liters per hour with average ride time of 45-50 minutes; during week days, Cruise usually takes 2 trips 26 and during weekends, 4 trips approximately; MPSTDC is running Cruise ships in accordance with Rules and Sanctions etc. and there is no violation of environmental laws and norms.
Tribunal's order dated 10.01.2023:
33. The matter was examined by Tribunal on 10.01.2023 in the light of replies filed on behalf of respondents 1, 2 and 7 and reports of committees, as noted above.
34. Applicant prayed that CPCB is necessary party and permitted to be impleaded, hence, it was allowed to be impleaded as respondent 10.
35. Tribunal also directed MPPCB and CPCB to periodically monitor the activities of Cruise running in Bhoj Wetland and in case of any pollution being caused by the Cruise while in operation either under Water Act, 1974 and Air Act, 1981, to take necessary remedial action in addition to imposition of environmental compensation in accordance with rules.
Respondent 2 was also directed to comply with environment rules and Government orders else it would be personally responsible. Inspection Report pursuant to Tribunal's order dated 10.01.2023 filed by CPCB:
36. Report shows that Upper Lake of Bhopal was created by constructing an earthen dam on perennial River Kolans; lake accounts for more than 40% of City's water supply; water is drawn from 4 parts of the lake and treated in 5 water works units; south - eastern side of Lake is bounded by Shyamla Hills, Van Vihar and north - eastern side by Medical College, Koh-e-Fiza and Ahmedabad Hills; Bairagarh is located at the western side of the lake; main source of water in Upper Lake is surface runoff generated due to rainfall in its catchment area; Lake has been a tourist hotspot for the local residents; Motorized, rowing and pedal boats 27 have been introduced by MPSTDC and Private Boat Owners in Lake at Boat Club with the permission of BMC; MPSTDC is operating 01 large 80 Seater Cruise Boat, 11 Paddle Boats, 09 Small Motor Boats, 01 Large 20 Seater Motor Boat, 01 Big 10 Seats Motor Boat and 01 Water Scooter at Boat Club for recreational activity; about 45 hectares of lake area on the southern bank of the lake falls in 'Van Vihar National Park', a Wildlife Conservation Park notified under Wildlife (Protection) Act 1972; the large 80 seater Cruise is being operated by MPSTDC with permission of BMC has 2 floors and is operated from 10:00 am to 7:00 pm;
the Cruise is operated with the help of two John Deere make Diesel Engines of 125 HP capacity each on both sides of the Cruise; one Beta Marine make 12.3 KVA capacity DG is also installed for power back up purposes; Cruise is also equipped with 3 batteries on one side and 1 battery on the other side of the Cruise for power back up to the engines; 3 diesel storage tanks of 90 liters capacity each are provided for storage of diesel; food is supplied by Wind and Waves Restaurant of MPSTDC and served in the dining room of Cruise which is covered from all sides; no food is prepared on the Cruise and Check Post at the entry of Cruise has been put in place for restricting entry of external food with passengers; CPCB during inspection conducted ambient air monitoring on the deck of Cruise to assess the ambient air quality; noise monitoring on the deck during operation of Cruise with music as well as without music; water and sediment samples were collected from 06 different locations of the lake for analyzing prescribed general parameters, Heavy Metals, Total and Feacal Coliforms; 2 samples were also collected from Cooling Water vent pipes of DG and engines of Cruise; emission of gases was also observed during operation of both the diesel engines to detect the emission status; emission of gases was monitored using flu gas analyzer; samples of Benthic Macroinvertebrate were also collected to study health of water body using 28 Diversity Score and Saprobic Score; and to gather scientific data during inspection, independent opinion was taken from subject experts of Madhya Pradesh State Biodiversity Board (hereinafter referred to as 'MPSPB') and Department of Limnology of Barkatullah University, Bhopal.
37. With regard to water quality and ambient air quality, it is said that the monitored values are within the prescribed limits but ambient noise monitoring was found, with music and without music, exceeding the limits prescribed under Noise Pollution (Regulation and Control) Rules, 2000 (hereinafter referred to as 'Noise Pollution Rules, 2000'). With regard to biological monitoring of the Lake water, Report says that Lake water body falls under Class C (Moderate Pollution); instance of Chironomidae directly indicates sewage contamination in the water body. Ultimately, the observations and recommendations have been given by CPCB as under:
"F. Observations:
1. Retired Navy Commander Shri. Rajendra Nigam, Advisor for the Development of Water Sports and Adventure Tourism to the M.P. Tourism Corporation and Shri D. S. Mishra, Captain of cruise of M.P. Tourism Development Corporation, Bhopal were present during visit. Shri Nigam explained to the team about the cruise design, its functioning, safety precautions, maintenance schedule, operation timings etc. He informed that Bhopal municipal corporation has given permission for operating the cruise in the Upper Lake to MP tourism on 31.12.2OO5. Copy of the permission is enclosed at Annexure-
IX. It was told that the cruise has been certified under ISO 14001: 2015 but copy of the quality manual was not made available during visit.
2. The cruise having the capacity of 80 Passengers and operated from 10 am to 7 pm on normal days and on booking of parties the timings will be from 8 pm to 10 pm. In this regard the order passed by the Collector, Bhopal on O6.12.2019 is enclosed at Annexure-X. During the visit it was informed that the occupancy of the cruise is almost full in Sundays and holidays. Cruise is having two floors with sitting arrangement. Food is supplied by Wind & Waves Restaurant of MP Tourism Development Corporation and served in the dining room which is covered from all side. Menu card is attached as Annexure- XI.
29 During the party bookings banquet menu is served as per demand. No food is prepared on the Cruise but stored in the pantry area. Check post at the entry of cruise is setup for restricting entry of external food with passengers.
3. Cruise is installed with two diesel engines (make: John Deere) of 125 HP capacity each on both side of the cruise. The operator claiming that the engines are designed for marine purpose with leakage and spillage proof technologr but during the visit some spillage of oil was observed near the engines and DG at bottom of cruise. The copy of cruise general arrangement plan drawing is enclosed at Annexure- XII. As per the operator, the engines are designed for zero emissions but during visit visual emissions were observed from the exhaust pipes. The team has monitored the source emissions by using Flue Gas Analyser.
4. During the visit verified all the probable water, air, noise, oil, solid waste pollution sources, collected the wastewater samples from the discharge of cruise, monitored the ambient air quality on the cruise, ambient noise levels and source emissions from the engines/DG exhaust. Also carried out the biomonitoring, collected 06 water samples from different locations and 06 sediment samples from the lake. As the petition mostly raising the issues about the pollution of water bodies due to operation of Cruise by the M.P. State Tourism Development Corporation, therefore, thrust was given on inspection of the source i.e. cruise.
5. Three diesel storage tanks of 90 liters capacity each have been provided for storage of diesel inside the cruise near the Engines and DG. It was informed that the average diesel consumption of the cruise is approximately 7 litters/hour (28 litters/day). The daily consumption is depending upon the number of rounds. The cruise path is fixed and the water depth along the cruise path is approximately 8-10 feet at cruise parking area and 15-20 feet at midway of the path. 02 propellers and 02 radars of cruise submerges about 3 feet inside water. As informed, each round takes approx. 45 minutes to 1 hour. Copy of the diesel consumption log book for the month of January and February 2023 is enclosed at Annexure-XIII.
6. One Diesel Generator is also installed (make: Beta Marine) of 12.3 KVA capacity for power back up. During visit it was observed that there is no platform provided for collecting back the spillage of oil if any during filling of diesel in engines & Diesel Generator and found that there is a possibility of spillage of diesel while pouring. It was also observed that there is no proper vent provided at appropriate height for the exhaust gases generating from the DG and engines.
7. The operator is generating waste oil/ used oil from cruise engines & DG and not taken authorization under Hazardous Waste (M, H & TM) Rules 2016 from MP Pollution Control Board. The records of the waste 30 oil/used oil are also not being maintained and disposing illegally instead of sending to authorized recyclers. Due to non-availability of record the waste oil/used oil generation quantity could not be assessed.
8. About 200 liters capacity sintex tank provided for storage of fresh water for using in wash basins and toilets. One washroom has been provided with urinal inside the cruise premises. The lavatory waste collected in a collection tank of 100 litres capacity and sent to Nagar Nigam for treatment and disposal for that MPSTDC is paying Rs.1,0O0/- per month. Copy of receipt is enclosed at Annexure-XIV.
9. For solid waste collection 03 nos. of dustbins were found on the cruise but not collecting dry and wet waste separately. The Instructions and sign boards were found placed on the cruise for proper management of waste but not implemented properly.
10. During visit it was observed that huge quantity of waste water directly mixing in lake from Bairagarh, Khanugaon, VIP Road areas etc. Nagar Nigam Bhopal has installed 05 water fountains/aerators in the lake to maintain the DO in the lake but during the visit none of them were found operational. A wired mesh with long handle is also available at the cruise for collection of debris if found floating on the water.
11. The operator is using two numbers of sound boxes 450 watt of capacity in the cruise for entertainment of the tourists. During visit the CPCB team has carried out the noise monitoring and it was found that noise levels are above limit.
12. The operator has not taken consents under Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act, 1981 and authorization under hazardous waste Rules, 2016 from MPPCB.
13. MP Wetland Authority has issued a letter to the M.P. Tourism Corporation and Municipal Corporation, Bhopal for complying the norms on 20.09.2022.
14. Request letter written to M.P. Pollution Control Board for providing the status of cruises operation and monitoring of water bodies in Madhya Pradesh and the information is awaited and shall be filed before the Hon'ble Tribunal as soon as the same is received. Copy of the letter dated 03.03.2023 is enclosed at Annexure-XV.
G. Recommendations:
1. As the Operator is discharging the engine cooling water, wash basin wastewater into the Lake, using Music System and is generating Toilet Waste in the Cruise for 31 which consent/ Environmental Management Plan may be approved from the M.P.P.C.B. and the District Administration may develop a monitoring mechanism to ensure compliance of Environmental Norms for running and operating the Cruise in the surface water bodies.
2. As the Operator is generating waste oil/used oil from the engines/DG, it is mandatory to take authorization under Hazardous Waste Rules, 2016 from the M.P.P.C.B.
3. To Operator must provide proper vent pipe at appropriate height as for the exhaust gases emanating from the DG and engines being used for operation of the Cruise.
4. To prevent mixing of Diesel in the Lake Water, the Operator should make necessary arrangements for collecting back the spillage if any during filling of Diesel in Cruise Engines and DG.
5. The Operator should provide separate Dry and Wet Waste Collection Bins and dispose the waste as per the Solid Waste Management Rules, 2016.
6. The Operator should not use high decibel sound boxes in the Cruise because the Van Vihar National Park is situated quite near the path of the Cruise and it falls under Silence Zone.
7. To prevent Water Pollution in Upper Lake, Municipal Corporation Bhopal should stop the discharging of the waste water into the Lake.
8. The Wash Basin wastewater should not be discharged directly in to the lake. It is also recommended to provide Bio
- Toilets with suction system for collection of lavatory waste instead of manual collection of the same.
9. The capacity of water storage tank of 200 L. and the capacity of grey water collection & storage tank is of 100 L. Therefore, it is recommended to install grey water storage tank of 200 L.
10. The Operator should explore the possibility to use gas/solar/bio-fuel based engines etc. for operation of the Cruise instead of Diesel Engines."
Reply filed by CPCB dated 11.02.2023:
38. It is said that it has prepared "Mechanism/ Guidelines for Control of Pollution and Enforcement of Environment Norms at Individual Establishment and the Area/ Cluster of Restaurants/ Hotels/ Motels/ Banquets etc." September 2020 which has been shared with all State Pollution Control Boards and State Pollution Control Committees and all 32 restaurants should follow the conditions in addition to the provisions made under Water Act, 1974. CPCB has made inspection and submitted report which may be considered as part of reply.
39. With regard to water quality data of Upper Lake Bhopal, the figures of year 2021-2022 has been given as annexures-R-10-11 as under:
"WATER QUALITY DATA OF UPPER LAKE, BHOPAL IN THE STATE OF MADHYA PRADESH UNDER NWMP DURING 2021-2022 Station Name Of Year Dissolved pH BOD Total Code Monitoring Oxygen (mg/L) Coliform Location (mg/L) (MPN/l00ml) Min Max Min Max Min Max Min Max Designated Best use for Water >4 mg/L 6-9 <3 mg/L <5000 Quality Criteria Class of - C MPN/100 (Drinking water source after ML conventional treatment and disinfection) 1373 UPPER LAKE 2021 5 8 7.18 7.73 1.1 4.2 150 43000 AT WATER 2022 4 7 7.1 8.14 BDL 2.8 3.7 27 SUPPLY INTAKE WELL NEAR KAMLA PARK, BHOPAL (M.P.) 2137 UPPER LAKE 2021 4 8 7.32 8.21 1.1 3.6 140 54000 NEAR WATER 2022 5 8 7.05 8.06 BDL 2.8 3.6 33 SUPPLY INTAKE WILL YATCH CLUB BHOPAL(M.P.) 2138 UPPER LAKE 2021 5 8 7.29 8.08 1.2 4 110 92000 NEAR WATER 2022 5 9 7.14 8.25 BDL 2.8 3.6 26 SUPPLY INTAKE WELL NEAR KARBALA BHOPAL(M.P.) 2139 UPPER I-AKE 2021 4 8 7.44 8.08 BDL 1.7 240 92000 NEAR WATER 2022 4 7 7.03 8.34 BDL 2.5 3.7 33 SUPPLY INTAKE WELL BAIRAGARH, BHOPAL(M.P.) Note:
BDL value for Dissolved Oxygen 0.3 mg/L BDL value for BOD 7 mg/L
40. Respondents 1, 3 and 7 have filed a copy of Writ Petition No. 11874 of 2022, Dr. Subhash C. Pandey vs. State of Madhya Pradesh 33 & Others along with its memo of filing documents dated 13.03.2023 (at page 436 of paper book) stating that applicant has challenged Government of Madhya Pradesh's Administrative Order dated 16.03.2022 before High Court being contrary to Wetland Rules, 2017 and Guidelines of 2020.
However, it is not disputed that as on date notification dated 16.03.2022 is operating and therefore we shall proceed by applying the above notification.
Reply dated 31.03.2023 filed by MPSPB:
41. It is said that in recognition of its international commitments, i.e., Convention on biological Biodiversity signed at the Rio Earth Summit 1992, Parliament enacted BD Act, 2002 which received assent of President of India on 05.02.2003; MPSPB was constituted as per the provisions of BD Act, 2002 and Biological Diversity Rules, 2004 (hereinafter referred to as 'BD Rules 2004'), notified by State Government under Section 63(1) of BD Act, 2002 on 17.12.2004; the basic objective and purpose of BD Act, 2002 is to ensure conservation of biological diversity, sustainable use of its components and fair and equitable share of benefits arising out of utilisation of genetic resources and wherever consider necessary to provide for conservation, sustainable utilisation and equitable sharing of benefits arising out of utilisation of genetic resources and also to give effect to the United Nation's convention of biological diversity, signed at Rio-de-Janeiro; the matter relating to permission for construction in the catchment area of Upper Lake Bhopal is not within the authority and ambit of BD Act, 2002; in M.C. Mehta vs. Kamal Nath & Ors., (1997) 1 SCC 388, Court enunciated doctrine of "public trust", the thrust of that theory is that certain common properties such as rivers, seashores, forests and air are held by Government in trusteeship for free and unimpeded use of general public; resources like air, sea, waters and 34 forests have such a great importance to the people as a whole that it would be totally unjustified to make them a subject of private ownership; State, as a custodian of natural resources, has a duty to maintain them not merely for the benefit of public, but for the best interest of flora and fauna, wildlife and so on; doctrine of public trust has to be addressed in that perspective; in Periyakaruppan vs. Revenue Department, 2022 SCC OnLine Mad 2077, Madras High Court has invoked "parens patriae jurisdiction" and declared "Mother Nature" as a "Living Being" having legal entity/legal person/juristic person/ juridical person/moral person/artificial person having the status of a legal person with all corresponding rights, duties and liabilities of a living person in order to preserve and conserve them; Court said that State Government and Central Government have to protect "Mother Nature" and take appropriate steps to protect Mother Nature in all possible ways; Respondent 9 further says that steps should be taken to mitigate adverse effects on Upper Lake particularly, carbon emission and dangerous particulates emitted by Cruise ships which may be hazardous to environment in many ways and is suspected of having a detrimental effect on the bio-diversity of the region. With reference to Rule 14(xviii) of MP State Bio-Diversity Rules, 2004, respondent 9 has given certain observations and recommendations as under:
"1. As per a study on aquatic biodiversity conducted through Department of Environmental Sciences and Limnology Barkatullah University, Bhopal, the upper lake which falls under Betwa River basin recorded 37 fish species and 63 species of phytoplankton and 56 species of Zooplankton and 37 species of Benthic organisms.
2. As per a study of avifauna of Bhoj Wetland conducted by Environment Conservation Society the Bhoj Wetland is a habitat almost 164 avifaunal species.
3. As per a study of Macrophytes of Bhoj Wetland conducted by Dr. Ashok Biswal the Bhoj Wetland supports 223 Macrophyte species.35
4. As per the Butterfly Survey of Bhoj Wetland conducted by Bhopal Birds Conservation Society in 2022, a total of 18954 butterflies belonging to 80 species have been recorded."
Applicant's objections dated 23.04.2023 to the inspection report filed by CPCB:
42. Applicant has filed objections stating that the report shows that as many as 24 motor boats are sailing/plying in the precious water body besides 150 private operator's motor boats plying in the said Lake;
MPSTDC has completed its preparation for launching a new 200 seater Cruise ship in Upper Lake without estimating loading capacity of the water body, without assessing its impact on biodiversity and water quality; CPCB has found direct discharge of sewage in the Upper Lake through 10 sewage drains causing contamination of lake's water; Environment Planning Coordination Organisation (hereinafter referred to as 'EPCO') has given its opinion that biodiversity of Upper Lake is continuously deteriorating and has come down from 800 to 182 in last 20 years which is really a serious cause of concern; water quality of Upper Lake reached down from "B" to "C" category and if the same trend persists, would further downgrade to "D" category; though CPCB has said that Cruise is certified under ISO 1400 01: 2015 but copy of the quality manual was not made available to them and the findings has been recorded on mere information from Operator; though Operator claims that engines are designed for marine purpose with leakage and spillage proof technology but during visit, some spillage of oil was observed near engines and DG at bottom of the Cruise; Operator claims that engines are designed for zero emission but during visit, visual emissions were observed; various other observations of CPCB report show that there is clear violation of Hazardous and Other Wastes (Management And Transboundary Movement) Rules, 2016 (hereinafter referred to as 'HOWMTM Rules, 2016') and no authorization has been 36 obtained thereunder; inspection team found huge quantity of waste water directly mixing in Lake from Bairagarh, Khanu Gaon, VIP Road, etc. and this is a direct violation of Water Act, 1974 and Wetland Rules, 2017 by BMC; Bhopal Nagar Nigam has installed 5 water fountains/aerators in the Lake to maintain Dissolved Oxygen of water body but at the time of inspection, none of them were found operational and Cruise was found violating Noise Pollution Rules, 2000 and noise pollution was beyond prescribed limit and it is bound to affect the wildlife in Van Vihar National Park which is close to the path of Cruise and hence there is violation of the provisions of Wild Life (Protection) Act, 1972 (hereinafter referred to as 'WLP Act, 1972').
43. Besides, observations made in the inspection report, applicant has drawn attention to some other aspects in para 21 as under:
"21) In addition to above, some other significant points are also to be noted against the sailing/plying of Cruise ships/ boats in potable water bodies like Upper Lake, Bhopal:
i) Bhopal Master Plan, 2005 in its clause 2.55, page 29 prohibits entertainment and commercial activities in the Upper Lake. It states that 'बडे तालाब के पािी में आमोद-प्रमोद गनतववधियों को अिुमनत िहीं दे िा िाहहए, क्योंकक यह जल मूल रूप से पीिे के उपयोग में आता है । जबकक आमोद-प्रमोद की गनतववधियां पािी के गुण पर ववपरीत प्रभाव डालेंगी।' (Annexure A-2).
ii) Prohibition under the Water Act, 1974 is very clear against motorized boating and sailing of Cruise ships etc. in water bodies and polluting the water quality. Sec. 24(1) (a) and
(b) of the Act state that '(1) Subject to the provisions of this section, - (a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any 3 [stream or well or sewer or on land]; or (b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.' 37 Similarly, Sec. 25(1)(a) (b) and (c) of the same Act state that '1 [(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 an 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 outlets for the discharge of sewage; or (c) begin to make any new discharge of sewage' (Annexure A-3).
iii) Upper Lake Bhopal is a well-known Wetland of International repute called as Ramsar site /Bhoj Wetland.
Hence, Respondents / Operators have to abide by the provisions of Wetland Rules, 2017 and Guidelines, 2020 specifically given for the protection and conservation of Wetlands. Section 7 of Guidelines for implementing wetlands conservation and Management Rules, 2017 very clearly prohibits the discharge of treated sewage, effluent, waste water in the Wetlands. Similarly, Section 8 of the Guidelines permits plying of non-motorized boats only in the water body. It clearly means sailing/plying of all types of motorized boat /Cruise ships are prohibited in the wetlands (Annexure A-4).
iv) Order dated 16th March 2022 passed by the Government of Madhya Pradesh, Environment Department is very clear when it prohibits certain activities in Bhoj Wetland. Clause/ Point 4 (A)(v) directs that 'Discharge of untreated waste and effluents from Industries, cities, towns, villages and other human settlements' will be prohibited. Therefore all activities being done by the Operator of Cruise ships /boats are strictly prohibited.
Similarly, Clause/Point 4 (B) (iii) of the said Order clearly directs that 'plying of non- motorized boats' will be the regulated activities. This clearly means sailing and plying of all types of motorized boats/ Cruise ships will not be allowed in the Bhoj Wetland (Annexure A-5).
v) Government of Madhya Pradesh, Gazette Notification dated 28 February, 2017 provides a list of Authorised water bodies for sailing of ships, which does not include Bhoj wetland/Upper Lake (Annexure A-6)." ARGUMENTS:
44. Learned Counsel for applicant contended that motorized Cruises are prohibited under order dated 16.03.2022 issued by Government of Madhya Pradesh which provides that only 'Non-motorised Boats' under the category of 'Regulated Activities' can be allowed to be operated in lakes 38 and water bodies, meaning thereby, those category of Cruises and Motors Boats which are not provided, stand prohibited and, therefore, running of motorized Cruise in Bhopal Lake/Bhopal Wetland and other water bodies is illegal. It is further contended that in motorized Cruises or Boats, motors are run by Organic Fuel like diesel and petrol which are hazardous material, causes air and water pollution and, therefore, without having Statutory permission/NOC/Consent under Water Act, 1974, Air Act, 1981 and HOWMTM Rules, 2016, operation of cruise and motorized boats is clearly illegal and, therefore, the persons responsible are also liable for preventive and punitive action like criminal prosecution and assessment of environmental compensation besides stopping of these activities forthwith. It is also urged that raising of permanent construction in the name of Jetty and Cruise Restaurant/Waiting Space etc., within Zone of Influence is also illegal and the same is liable to be demolished.
45. On the contrary, Learned Counsel appearing for State of Madhya Pradesh i.e., respondents 1, 2 and 3 and also Learned Counsel appearing for BMC i.e., respondent 5 contended that water Cruise is not something which requires Consent under Water Act, 1974 or Air Act, 1981 and the same are inapplicable. It is further contended that most of the water bodies referred by applicant are running rivers or dams and not wetlands, therefore, restrictions imposed under Wetland Rules, 2017 are not applicable. However, with respect to 'Bhopal Lake' which is Ramsar Wetland Site, it is contended that no pollution has been found in the said Lake; Cruise is being operated with a protection guaranteed engine i.e., 'John Deere', therefore, the allegations of pollution of water lake has no basis; Cruise operation is for augmenting and encouraging State Tourism under Tourist Policy of State Government and for general benefit of the public; permission and sanction from MPLCA which works under the 39 ambit of BMC has been obtained; the engines installed on the Cruise Boat have 99.9% combustion and negligible Carbon emission, therefore, causing no pollution at all; very small quantity of organic fuel is used in operation of Cruise Boat and a Senior Research Officer, MPLCA issued an advisory/report dated 29.12.2005 (annexure R-2/1 to the reply of respondent 2 at page 293 of paper book) and operation of Cruise is consistent with the said advice hence no pollution is being caused; there is no violation of any Statutory Provisions and there is no illegality in running Cruise Boats/Motor Boats in the Bhoj Wetland and other water bodies; raising of temporary construction and jetties necessary for riding or boarding down the boat is not prohibited under any provision or law and, therefore, the complaint is this regard has no substance. ISSUES:
46. We have heard Learned Counsels for the parties, perused records, relevant Statutory Provisions and judicial precedents applicable to the issues raised before us. We find that following issues have arisen for adjudication by this Tribunal:
I. Whether the provisions of Water Act, 1974, Air Act, 1981 and other environmental laws and norms including the provisions made under EP Act, 1986 are applicable to the Cruise Boat and Motor Boat operations in Bhoj Wetland, other water bodies and rivers etc.? II. Whether running of Cruise Boats by respondents is permissible in law and/or whether the Statutory compliances are being observed in such operations?
III. Whether construction raised are in the nature of 'prohibited activities' and if so, what action is needed to be taken? IV. Whether order dated 16.03.2022 issued by State of Madhya Pradesh 40 under the provisions of EP Act, 1986 read with Wetland Rules, 2017 permits running of motorized Cruises?
CONSIDERATION ON MERITS
47. All the issues, we find are inter-connected, hence we propose to consider the same simultaneously.
48. While considering the issue raised before us in the matter, we have to keep in mind that we are dealing with the water bodies and rivers in State of Madhya Pradesh which is full of water resources, forest assets and wildlife. The State is part of Central Province in Central India. It is the largest Indian State by area and fifth largest State by population; it borders State of Uttar Pradesh to North-East, Chhattisgarh to East, Maharashtra to South, Gujarat to West and Rajasthan to North-West and total area of State of Madhya Pradesh is 308,252 km2 (119,017 sq mile); length and width wise, its dimension is 605 KM in length and 870 Km in width. Its historical importance went back to ancient emporium; the area covered by present day State of Madhya Pradesh includes the area of ancient Avanti Mahajanapada, whose capital, well known to the people, was Ujjain (also known as 'Avantika'; it was a major city during Indian urbanisation in Sixth century BCE; subsequently, region was ruled by major dynasties of India; in nineteenth century, majority of area of Madhya Pradesh was dominated by Maratha Empire; after Anglo-Maratha War in 19th century, the region was divided into several Princely States under British regime and incorporated into Central Provinces and Berar and Central Indian Agency. After independence, Central Provinces and Berar was renamed as 'Madhya Bharat' with Nagpur as its capital; this State included Southern parts of present-day Madhya Pradesh and North- Eastern portion of present-day Maharashtra; in 1956, there was 41 reorganization of States and certain parts of Maharashtra were combined with States of Madhya Bharat, Vindhya Pradesh and Bhopal to form new State of Madhya Pradesh; Marathi speaking Vidarbha region was removed and merged with Bombay State.
49. State of Madhya Pradesh was the largest State in India by area until 2000, when South-Eastern part of this State was separated with the creation of Chhattisgarh State region, designated a separate State.
50. State of Madhya Pradesh has distinction of rich mineral resources, forest reserve and water resources. It has distinction of having a large river running from East to West i.e., Narmada which runs between Vindhya and Satpura ranges. Narmada is the longest river in State of Madhya Pradesh, flows through a rifty valley. It has several tributaries including Banjar, Tawa, Machna, Shakkar, Denwa and Sonbhadra. Other major rivers of Madhya Pradesh are Rivers Son, Shipra, Tapti, Mahanadi, Chambal etc. Godawari Basin also finds small part of State of Madhya Pradesh.
51. State of Madhya Pradesh is also known for lakes and other water bodies. It has 4 Ramsar Wetland Sites under Ramsar Convention i.e., Bhoj Wetland (Bhopal Lake or Bhoj Taal or Upper Lake or Lower Lake; Sirpur Lake, Yashwant Sagar and Sankhya Sagar).
52. Bhoj Wetland i.e., Bhopal Lake got the status of Wetland of International importance under Ramsar Convention on 19.08.2002 comprising 2 water bodies i.e., Upper Lake and Lower Lake. Its total area is about 31 km2. It is located at Bhopal. With regard to Bhoj Taal (Upper Lake), as per old records, the Lake was made by Paramara Raja Bhoj, Ruler of Malwa. The Lake is surrounded by Van Vihar National Park on the South, agricultural fields on the West and human settlement on the East and North. By making an Earthen dam across Kolans River (tributary 42 of Halali river), the lake was built. Upper Lake drains into Kaliasot River. Another dam called Bhadbhada was constructed in 1965 on Upper Lake to control outflow of Kaliasot river. Catchment area of Lake is about 361 km2 and it has maximum length and width of 31.5 km and 5 km respectively.
53. Lower Lake which is also part of Bhoj Wetland, is said to have been built by Nawab Chhote Khan in 1794 to beautify the city; it drains into Halali River via lower reach of Kolans River; has a catchment area of about 9.6 km2 and surface area of 1.29 km2; average depth of Lake is 6.2 meters and maximum depth is about 10.7 meter; a 'Pul Pukhta' or Lower Lake Bridge separates Lower Lake from Upper Lake.
54. Sirpur Lake has a total area of about 800 acres (around 3.6 km2), got the status of wetland of international importance under Ramsar Convention on 07.01.2022. It was built by Holkars of Indore State in early 20th century and is one of the 19 important bird areas of Madhya Pradesh recognized by Bird Life International in 2015. Sirpur Lake is located at Indore.
55. Yashwant Sagar (Lake) also located in District Indore, got the status of Wetland of International importance on 07.01.2022 under Ramsar Convention; it is a dam reservoir on Gambhir River and supplies water to Indore City; area of reservoir is about 2650 hectares; created in 1939 and also known as 'Gulawat Lotus Lake Valley'; it is one of the 19 important bird areas of Madhya Pradesh recognized by Bird Life International on 2015.
56. Sankhya Sagar (Lake) got the status of international importance under Ramsar Convention on 26.07.2022 located at Shivpuri inside Madhav National Park; it was created in 1918 from Manier River. 43
57. Besides above, there are other famous Lakes of Madhya Pradesh i.e., Shahpura Lake located at Bhopal, Rangunan Lake in District Chhatarpur, Beni Sagar Lake near Khajuraho and Lakha Banjara Lake at District Sagar. There are some lakes which are either called Lakes or Reservoirs, which are also in the list of Lakes of State of Madhya Pradesh and the same are as under:
Sl. Name of the Lake City/Location
No.
1 Sangram Sagar Lake Jabalpur
2 Jalpari Lake Jabalpur
3 Tawa Reservoir Hoshangabad
4 Halali Reservoir Vidisha (it also span over
Bhpal and Raisen)
5 Rani Lake Rewa
6 Teliya Lake Mandsaur
7 Morwan Reservoir Neemuch
8 Nagchoon Lake Khandwa
9 Munshi Hussain Khan Talab Bhopal
10 Lendiya Lake Bhopal
11 Motia Lake Bhopal
12 Nawab Siddique Hasan Talab Bhopal
13 Munj Sagar Lake Dhar
14 Dharam Sagar Lake Panna
58. In fact, State of Madhya Pradesh is heavily loaded with forest area, water bodies and precious wildlife. Its geographical area is characterized by plateaus, mountain ranges, rivers, valleys and dense forest. The terrain 44 assists rivers and seasonal streams to form various beautiful and breath- taking waterfalls.
59. State of Madhya Pradesh is also known for several beautiful and important waterfalls like Dhuadhar, Kapildhara, Dugdha-Dhara, Shahastra Dhara, Mandhar, Dardi, Satdhar, Chachai, Purwa, Bahuti, Keoti, Belauhi, Piyavan, Patalpani, Chuliya, Jhadi-daha, Tincha, Jogi- Bhadak, Gidiya-Khoh, Rajat, Bee, Dutchess, Apsara, Irene, Sankua, Sultangarh, Bhoora Khon, Pawa, etc. There are some seasonal waterfalls also like Raneh, Pandav, Bhalkund, Gatha, Dhanora, Kukdi, Shambhudhara, Taxakeshwar, Sitalmata, Gangulpara, Dagona, Kakrakhoh, Maldhar, Anhoni, Shankar Kho and Dhara-Khoh etc. The waterfalls are on various rivers like Narmada, Sindh, Tons, Chambal and their tributaries. Some waterfalls, we find in Panchmarhi Region, which is a hill station situated on Satpura Mountain Rangers and a source of various seasonal streams creating beautiful waterfalls.
60. In other words, it will not be exaggerated to say that State of Madhya Pradesh is full of natural resources, and water resources in various forms are in plenty. Perhaps that is the reason of having a huge forest area in the State.
61. Protection of natural resources is prime responsibility of State. In M.C. Mehta vs. Kamal Nath & Others (1998) 1 SCC 388, Supreme Court said that State is Trustee of all natural resources which, by nature, are meant for public use and enjoyment. Public at large is beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. State as a trustee, is under a legal duty to protect natural resources. These resources meant for public use cannot be converted into private ownership. Executive, acting under Doctrine of Public Trust, cannot 45 abdicate natural resources and convert them into private ownership or for commercial use.
62. Water bodies in State of Madhya Pradesh are for the benefit of the people of Madhya Pradesh in general and State of Madhya Pradesh is under the obligation to protect and maintain them so that the same are not polluted, damaged and no harm is caused to aquatic flora and fauna of these resources.
63. Mere terminology by using the words 'Dam' and 'Reservoir', etc. will not change the nature of aqua-resource which is obviously available due to natural activities and if for use of the water resources in one or the other form, some developmental activities like construction of dam or reservoir etc. has been undertaken, the same would not change the very basic nature and concept of natural water resources available to the State. The mere fact that some lakes have their origin to the efforts of man called man-made Lakes will not change the concept of the Lake and water bodies in as much as even Ramsar Sites in State of M.P. include Lakes which are man-made.
64. We have to look into the wider and broad perspective of water body as such and the regulation relating to wetland has to be construed accordingly. Before us, there is large man-made Lake i.e., Bhopal Lake which is admittedly a Wetland of International importance having being declared as 'Ramsar Site'. Similarly, there are other water bodies whether called 'Reservoir' or 'Lake' but the basic attitude of both is same.
65. For the purpose of construing what constitute wetland, we need not to go elsewhere but straight away fall upon the definition of 'Wetland' in Rule 2(g) of Wetland Rules, 2017 which reads as under: 46
"2(g) "wetland" means an area of marsh, fen, peatland or water; whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six meters, but does not include river channels, paddy fields, human-made water bodies/tanks specifically constructed for drinking water purposes and structures specifically constructed for aquaculture, salt production, recreation and irrigation purposes;"
66. A perusal of definition of wetland shows that area of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary is included within the definition of Wetland. Whether water is static or flowing, fresh, brackish or salt, all are included within the term 'Wetland'. The river channels, paddy fields, human-made water bodies/tanks specifically constructed for drinking water purposes and structures specifically constructed for aquaculture, salt production, recreation and irrigation purposes are excluded. A river channel is not synonymous to river. A river is a natural watercourse while a channel can be part of the structure of a river. In geography, a river channel refers to the path or course through which a river flows. Further, here human-made water bodies/tanks specifically constructed for drinking water purpose does not include the dams or Reservoirs which are not only for drinking water purposes but have multifarious purposes. Here the term 'water bodies' has to read with the term 'tanks'. It is for this reason that most Ramsar Sites in State of Madhya Pradesh are man-made still they are Ramsar Sites Wetlands.
67. Nature of water bodies which are referred to in OA are not river channels, paddy fields, human-made water bodies/tanks specifically constructed for drinking water purposes and structures specifically constructed for aquaculture, salt production, recreation and irrigation purposes. They are clearly covered by the definition of the term 'Wetland,' 47 constitute wetland and attract provisions of Wetland Rules, 2017.
68. Besides the provisions of Water Act, 1974, we find that the definition of 'Stream' in Section 2(j) is very wide. It is not exhaustive but inclusive meaning thereby, what is mentioned therein would come within the definition of Stream but what is not mentioned therein but have the characteristics or indicia of the items mentioned in the definition, the same would also be in the ambit of the term 'Stream'. This is evident from definition of 'Stream' which reads as under:
"2.(j) "stream" includes-
(i) river;
(ii) water course (whether flowing or for the time being dry);
(iii) inland water (whether natural or artificial);
(iv) sub-terranean waters;
(v) sea or tidal waters to such extent or, as the case may
be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf;"
69. Prohibition and restrain under Section 24 of Water Act, 1974 is applicable to every 'Stream' which is defined in Section 2(j) or well. Meaning thereby, stagnated ground water is also covered by mis-chief, sought to be prohibited by Section 24 of Water Act, 1974.
70. In fact, definition of Stream under Section 2(j) is very wide which includes 'inland water' whether natural or artificial. General definition of inland water is permanent water bodies inland from the coastal zone and areas whose properties and use are dominated by permanent, seasonal, or intermittent occurrence of flooded conditions. Inland water includes rivers, lakes, flood plains, reservoirs, wetlands and inland saline systems. Inland waters are aquatic-influenced environments located within land boundaries. Inland water system can be fresh, saline or mix of two (brackish water).
48
71. In other words, any of the waters as lakes, canals, rivers, water courses, inlands and bays within the territory of a State as contrasted with the open seas or marginal waters, bordering another State subject to various sovereign rights of the bordering State is within the term 'Inland Water'.
72. The purpose of Water Act, 1974 and Wetland Rules, 2017, in general, is to protect water resources from being polluted in any manner whatsoever. Subject to the provisions of the said Statutes, developmental and other activities can be undertaken but the water resources indiscreetly cannot be tempered with, adversely affected and damaged by any kind of activities which would include running of Motor propelled Vessels/Boats wherein organic fuel is used which is a hazardous substance governed by the provisions of HOWMTM Rules, 2016. The extent and ambit of environmental laws, unless has inbuilt restriction or shows an express exclusion, should be given beneficial wider interpretation since it is for the benefit of the mankind and nature.
73. The purpose of environmental laws is to protect nature so that people may enjoy their Fundamental Right of clean air and water and untampered environment. The Statute is beneficial and, therefore, has to be given a widest permissible interpretation.
74. In this backdrop, we propose to consider various issues raised before us.
75. It is argued that the Cruise Boat or Cruise Vessel or Cruise Ship smaller in size then those which are marine operated is an activity not regulated or governed by the provisions of Water Act, 1974, Air Act, 1981, EP Act, 1986 and the Rules framed thereunder.
49
76. We find it appropriate to consider merit of this submission. The term 'Cruise' has no scientific or technical meaning or effect. Its Dictionary meaning is to sail about in an area without a destination specially for pleasure. The bigger Cruise and Boats which operates in marine water are called Cruise Ships or Cruise Liner. However, there are larger Boats which are Motor propelled, can accommodate a large number of passengers, provide them a package of dining, enjoyment, entertainment etc., running in inland waters which are also called 'Cruise Motor vehicles' or 'Cruise water Crafts' or 'Cruise Boats' or 'Vessels'.
77. Such type of inland water Cruises have a long history in as much as in 1917 it was found appropriate to regulate operation of such vessels in the inland waters by enacting Inland Vessels Act, 1917 (hereinafter referred to as 'I V Act, 1917'). Definition of 'Inland Vessels', 'Inland Water' as also 'Inland Mechanically Propelled Vessel' are given in Section 2(a), (b) and (c) and as initially enacted, read as under:
"(a) "inland vessel" or "inland mechanically propelled vessel" means a mechanically propelled vessel, which ordinarily plies on inland water,
(b) "inland water" means-- any canal, river, lake or other navigable water
(c) "mechanically propelled vessel" means every description of vessel propelled wholly or in part by electricity, steam or other mechanical power;'."
78. The term 'Voyage' was also defined in Section 2(h) as under:
"2(h) "voyage" includes the plying of a [mechanically propelled vessel] at or about any place,"
79. Section 3 imposed restriction on operation of an inland mechanically propelled vessel unless certificate of survey was issued to it. The certificate of survey was granted by State Government under Section 8 after following 50 the procedure laid down in Section 6, 7 and 8 of the said Act.
80. In 2007, Chapter VIIAB was inserted in the above Act which dealt with prevention and control of pollution and protection on inland water. Section 54E prohibited discharge of oil or oily mixture or hazardous chemical or obnoxious substance in inland water from a mechanically propelled vessel. The terms 'hazardous chemical' or 'obnoxious substance', 'oil' and 'oily mixture' were defined in Section 54D. We may reproduce Section 54D and 54E as under:
"54D. Definitions. --In this Chapter, unless the context otherwise requires, --
(a) "hazardous chemical" or "obnoxious substance" means any chemical or substance, as the case may be, which has been designated as such by rules made under this Chapter;
(b) "oil" means any persistent oil such as crude oil, heavy diesel oil, lubricating oil and white oil, whether carried on board a tanker as cargo or fuel;
(c) "oily mixture" means a mixture with any oil content.
54E. Prohibition as to discharge of oil, oil mixture, etc., in the inland water. --No oil or oily mixture, hazardous chemical or obnoxious substance from a mechanically propelled vessel shall be discharged in inland water:
Provided that nothing in this section shall apply to the discharge of such oil or oily mixture, hazardous chemical or obnoxious substance from a mechanically propelled vessel for the purpose of securing the safety of a mechanically propelled vessel, preventing damage to a mechanically propelled vessel, cargo or saving of life at inland water.]"
81. Section 54H for conferred power upon Central Government to make Rules for prevention and control of pollution and reads as under:
"54H. Powers of Central Government to make rules for prevention and control of pollution. --(1) The Central Government may make rules for the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may--
(a) prescribe the designated hazardous chemical and obnoxious 51 substance under clause (a) of section 54D;
(b) prescribe fitment of oily mixture treatment equipment on shore and on board in certain cases;
(c) prescribe details of reception facilities at inland port, cargo or passenger terminal;
(d) prescribe the forms and record books for inland port, cargo or passenger terminal and the manner in which such books shall be maintained, the nature of entries to be made therein, the time and circumstances in which such entries shall be made, the custody and disposal thereof and all other matters relating thereto;
(e) any other matter which is to be, or may be, prescribed.]
82. The provisions of the above Act have to be read consistent with the environmental laws since provisions of I V Act, 1917 were not given any over-riding effect over any other law on the subject of prevention of pollution and we find that provisions of Water Act, 1974, Air Act, 1981 and EP Act, 1986 have been given over-riding effect.
83. I V Act, 1917 has been superseded and replaced by Indian Vessels Act, 2021 (Act no. 24 of 2021) (hereinafter referred to as 'I V Act, 2021') published in the Gazette of India (Extraordinary) dated 12.08.2021. Section 1 and 106 of the above Act have been brought in force w.e.f. 16.02.2022 vide notification of the same date published in Gazette of India (Extraordinary) of the same date and the remaining provisions have been made effective vide notification dated 07.06.2022 published in Gazette of India (Extraordinary) of the same date. Section 2 to 105 and 107 to 114 have been made effective w.e.f. 07.06.2022.
84. Purpose of the I V Act, 2021 is to promote economical and safe transportation and trade through inland waters to bring uniformity in application of law relating to inland waterways and navigation within the country, to provide for safety of navigation, protection of life and cargo and prevention of pollution that may be caused by the use or navigation of 52 inland vessels and to ensure transparency and accountability of administration of inland water transportation etc.
85. The term 'Inland Water', 'vessels', 'passenger vessels', 'oil', 'obnoxious substance', 'mechanically propelled inland vessel', 'inland vessel' and 'hazardous chemical' are defined in Section 3(r), 3(zu), 3(zj), 3(ze), 3(zc), 3(y), 3(q) and 3(p) as under:
"3(r) "inland waters", for the purpose of inland navigation, includes any--
(i) canal, river, lake or other navigable water inward of baseline or as may be declared by notification in the Official Gazette by the Central Government;
(ii) tidal water limit, as may be declared by notification in the Official Gazette by the Central Government;
(iii) national waterways declared by the Central Government;
and
(iv) other waters as may be declared by notification in the Official Gazette by the Central Government;
3(zu) "vessel" includes every description of water craft used or capable of being used in inland waters, including any ship, boat, sailing vessel, tug, barge or other description of vessel including non- displacement craft, amphibious craft, wing-in-ground craft, ferry, roll on-roll-off vessel, container vessel, tanker vessel, gas carrier or floating unit or dumb vessel used for transportation, storage or accommodation within or through inland waters;
3(zj) "passenger vessel" means any vessel permitted to carry more than twelve passengers;
3(ze) "oil" means any edible oil carried on vessel as cargo or persistent oil such as crude oil, heavy diesel oil, lubricating oil and white oil, carried on board of a vessel as cargo or fuel; 3(zc) "obnoxious substance" means any substance, which has been designated as pollutants under this Act or any other law for the time being in force in India;
3(y) "mechanically propelled inland vessel" means--
(i) any inland vessel in the inland waters which is propelled by mechanical means of propulsion; or
(ii) floating units, floating surfaces, dumb vessels, barges, rigs, jetties or such other non-mechanically propelled inland vessel, which are towed or pushed with the assistance of another mechanically propelled vessel and used for carriage, storage, transportation and accommodation of passengers and cargo in or through inland waters; 53 3(q) "inland vessel" includes any mechanically propelled inland vessel or non-mechanically propelled inland vessel which is registered and plying in inland waters, but does not include--
(i) a fishing vessel registered under the Merchant Shipping Act, 1958 or the Marine Products Export Development Authority Act, 1972; and
(ii) any vessel that are specified as not to be inland vessels by notification by the Central Government.
Explanation--For the purposes of this clause, it is clarified that a vessel registered under the Merchant Shipping Act, 1958 and plying within the inland waters shall be deemed to be an inland vessel registered under this Act;
3(p) "hazardous chemical" means any chemical, which has been designated as pollutants under this Act or any other law for the time being in force in India;"
86. Here also the certificate of survey is necessary for operation of a mechanically propelled inland vessels in view of prohibition contained in Section 14 of I V Act, 2021. The provision of registration of the vessels is also provided in Section 17 and Section 18 prohibits operation of any mechanically propelled inland vessels without certificate of registration. Chapter IX deals with pollution caused by inland vessels containing Sections 52 to 56 which read as under:
"52. (1) The Central Government shall, by notification, designate the list of chemicals, any ingredients or substance carried as bunker or as cargo, or any substance in any form discharged from any mechanically propelled inland vessel, as pollutants.
(2) The owner or master of any mechanically propelled inland vessel shall discharge or dispose of the sewage and garbage in accordance with such standards and manner as may be prescribed by the Central Government.
(3) No mechanically propelled inland vessel shall cause pollution by discharging or dumping of pollutants designated under sub-section (1):
Provided that nothing in this sub-section shall apply to the discharge dump or emission of such oil or oily mixture, hazardous chemical or obnoxious substance or any other pollutant, as the case may be, from a mechanically propelled inland vessel for the purpose of securing the safety of any mechanically propelled inland vessel, preventing damage to 54 another mechanically propelled inland vessel, cargo or saving of life at inland waters.
53. (1) The Central Government shall, by rules made in this behalf, specify the standards of construction and equipment of the mechanically propelled inland vessels to ensure compliance with the requirements of this Chapter.
(2) The State Government shall appoint or authorise such officers to ensure construction, installation and maintenance of equipment of all mechanically propelled inland vessels and issue certificate of prevention of pollution, in compliance with the provisions of this Chapter.
(3) Every mechanically propelled inland vessel, which has been constructed and equipped in compliance with this Chapter shall be issued with a certificate of prevention of pollution in such form, validity and content as may be prescribed by the Central Government.
(4) Every mechanically propelled inland vessel shall carry on board a valid certificate of prevention of pollution and shall furnish the same on demand by concerned officers appointed or authorised under this Chapter.
54. (1) The Central Government shall, by rules made in this behalf, specify the conditions for construction, use and maintenance of reception facilities for the containment of pollution and removal of pollutants arising from spillage or discharge arising from mechanically propelled inland vessels at all cargo terminals or passenger terminals.
(2) The owner or operator of all cargo terminals or passenger terminals shall provide reception facilities to discharge oil, oily mixture, hazardous chemicals, sewage or obnoxious substances at such cargo or passenger terminal, as the case may be, in compliance of sub-section (1).
(3) The owner or operator of all cargo terminals or passenger terminals, providing reception facilities shall receive charges, at such rates as may be prescribed by the State Government.
(4) For the purposes of minimising the pollution already caused, or for preventing the imminent threat of pollution, the Central Government or such other officer appointed by the State Government may, by order in writing, direct the owner or operator of cargo or passenger terminal to provide or arrange for the provision of such pollution containment equipment and pollutant removing materials, at such cargo and passenger terminal, as may be specified in such order.
(5) The owner or operator of the passenger or cargo terminal shall submit a report of compliance to the Central Government or such other officer appointed under sub-section (4), in such form as may be prescribed by the State Government. 55
(6) The owner, operator or master of any mechanically propelled vessel used or plying within inland waters, shall discharge the pollutants at the port reception facilities in such manner as may be prescribed by the State Government.
55. (1) The State Government may appoint or authorise such officers as surveyors to inspect any cargo or passenger terminal lying within its respective jurisdiction.
(2) The surveyor authorised under sub-section (1) may, at any reasonable time, enter and inspect any cargo or passenger terminal to--
(a) ensure that the provisions of this Chapter are complied with;
(b) verify whether such cargo or passenger terminal is equipped for pollution containment and removal, in conformity with the order of the State Government or any of the rules made under this Chapter; and
(c) satisfy himself of the adequacy of the measures taken to prevent pollution.
(3) If the surveyor, on inspection, finds that the cargo or passenger terminal is not provided with the required pollution containment equipment and pollutant removing materials, he shall give a notice in writing pointing out the deficiencies and the recommended remedial measures to rectify such deficiency, that is identified during the inspection, to the owner or operator of such cargo or passenger terminal, as the case may be.
(4) No owner or operator of such cargo or passenger terminal, as the case may be, served with the notice under sub- section (3), shall proceed with any work at such cargo or passenger terminal, until he obtains a certificate signed by the surveyor to the effect that the cargo or passenger terminal, is properly provided with the required pollution containment equipment and pollutant removing materials in conformity with the rules made under this Chapter.
56. (1) The State Government shall direct any designated authority or such other authorised officer appointed under Chapter XIII to conduct investigation into incidents of pollution.
(2) The State Government shall update the Central Government with such information or report of the court, if so directed by such court concerned, on incidents of pollution that occurs within its jurisdiction."
87. Section 111 provides that provisions of I V Act, 2021 shall be in addition to, and not be construed in derogation of the provisions of any other law and shall be construed as consistent with such law, for the time 56 being in force. It reads as under:
"111. (1) The provisions of this Act shall be in addition to, and not be construed in derogation of the provisions of any other law, and shall be construed as consistent with such law, for the time being in force.
(2) In the event of any conflict between a provision of this Act and a provision of any other law for the time being in force in the whole of India or restricted to the application within the territory of any State, the provision of this Act shall prevail to the extent of such conflict."
88. We have referred to these provisions and statutes to show that where the mechanically propelled Cruise Boats even for re-creational purposes carrying large number of passengers are operated in inland water, safety of passengers, protection of environmental etc. are issues which have attracted attention of Legislature from time to time and Statutory Provisions have been made to regulate the same.
89. Motor propelled vessels i.e., Cruise Boats which are being run by respondents' authorities in the water bodies having capacity of more than 12 passengers are clearly within the ambit of the Statute and beside other regulations in respect of prevention of pollution, they are bound to follow and comply with the provisions of environmental laws. It may also be noted at this stage that running of Cruise Ships/Boats/Vessels in Inland Waters is not a charity or a service but constitute part of 'travel industry' or 'entertainment industry' or 'leisure industry'. They are running for consideration and to provide a package of entertainment and joy ride to the consumer people at large. The mere nomenclature of Cruise Ships or Boats is not of any material consequence for the reason that broadly, difference between ship and boat is based on their area of operation and size. Ships are normally vessels that are operated in marine waters i.e., oceanic areas and high seas while large boats having the facilities of entertainment, dining, running in inland waters are called Cruise Boats and sometimes casually as Cruise Ships.
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90. The Cruise Boat or Ship is a floating asset of a commercial or industrial activity, carry on by the operators with commercial objectives on inland water and, therefore, it cannot be said that the provisions of environmental laws are not applicable. In fact, the prohibitions under environmental laws is much wider and broad based.
91. Now we may consider whether running a Cruise Boat operated by motors with organic fuel, whether attract the provisions of Water Act, 1974.
92. As we have already said, definition of 'Stream' is very wide and various water bodies with which we are concerned are included within the term 'Stream'.
93. Section 24 of Water Act, 1974 imposes restriction/prohibition from permitting entry into stream, well, sewer or land, any poisonous, noxious or polluting material which does not meet the standards prescribed by concerned State Pollution Control Board. The restriction is not applicable only to direct action but indirect action also.
94. Section 25 provides that no person shall 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. Here also, the restriction is not only when somebody is establishing an industry but also applicable to all operations or processes or even treatment and disposal system.
95. Running of a Cruise Boat in a water body is an operation which is likely to discharge sewage or trade effluent into the stream as defined in Section 2(j). The term 'trade effluent' is defined in Section 2(k). Here also the definition is inclusive. It reads as under:
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"2(k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any industry, operation or process, or treatment and disposal system, other than domestic sewage."
96. The definition includes any liquid, gaseous or solid substance meaning thereby, all three forms of substance are covered and included and if any of them or all or more than one is/are discharged from any premises used for carrying on any industry, operation or process or treatment and disposal system other than domestic sewage, it will be within the ambit of 'trade effluent'. Here, trade effluent is in contradiction with domestic sewage. What is not domestic sewage is covered by the term 'trade effluent'. The meaning of the words 'industry', 'operation' or 'process' has to be drawn and understood in the context that if it is not domestic, it will be within the ambit of any of these terms. Here the cruise has two stories built on its base with accommodation for 80 people. This covered area of cruise is the premises wherefrom if effluent is discharged, it is within the mischief of the above statute.
97. Cruise Boat on voyage on inland water is a floating asset i.e., a floating territory and is covered by the term 'industry'. It is more so as we have seen that in the last few decades Cruise industry has flourished in a very large way whether in marine waters or inland waters and a composite package is provided to the passengers/users/beneficiaries for their entertainment or luxury or joy rides which may be for a shorter period of one or two hours or may be for a few days. The concept of industry has developed with innovative ideas of industrial entrepreneurs. These days aircrafts, watercrafts and even spacecrafts are different kinds of industries comprising trading spaces on their bodies. Polluting matters discharged from their bodies, which may be termed as premises also in wider sense, may attract provisions of environmental laws.
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98. The term 'operation' or 'process' are very wide and we find no reason to put any restriction on the ambit of these two terms. When a Cruise Boat is allowed to operate in a water body, it is capable of discharging trade effluent into the stream in which it operates. Here the trade effluent can be in any form, whether liquid, gas or solid. Obviously, running of Cruise Motor Boats for public entertainment for recreational purposes is not a domestic use or domestic operation or domestic process.
99. It is contended that whatever solid or liquid waste is generated on the Cruise Boat, that is collected and discharged on the land separately and nothing is thrown and discharged into the stream. This fact has not been found correct by CPCB team in its report.
100. Here we are not confined with the solid or liquid water or garbage generated and collected at the Cruise during the course of its operation. The reports which are placed before us show that the Cruise Boat is operated with two diesel engines of 125 HP capacities i.e., total capacity comes to 250 HP. Besides, a DG set of 12.3 KVA is also installed for power back up. A Report dated nil was submitted by MPPCB after inspecting the Cruise Boat by Shri Brijesh Sharma, Regional Officer, Bhopal, Shri A.K. Bisen, Executive Engineer, Bhopal and Shri Salman Khan, Sub-Engineer, MPPCB, Bhopal on 22.11.2022. Applicant filed a detailed objection to this Report and thereafter, a detailed inspection was made by officers of CPCB on 6th and 7th February, 2023. The basic facts with regard to installation of two diesel engines of 125 HP capacity and 1 DG set of 12.3 KVA were found by the said team also. They also said that Cruise is equipped with three batteries on one side and one battery on the other side of Cruise for power back up to the engines; three diesel storage tanks of 90 liters capacity each are provided for storage of diesel meaning thereby, total 60 stored capacity of diesel in the tanks was 270 liters.
101. However CPCB team found that the ambient noise level was breached with music and without music, noise exceeded the limits prescribed under Noise Pollution Rules, 2000. The operators claimed that two diesel engines of 125 HP capacity are having leakage and spillage proof technology but as a matter of fact, CPCB officers found spillage of diesel oil near the engines and DG at bottom of Cruise. Committee also found visual emission from the exhaust pipes of the motors though operators claimed that engines were designed for zero emissions. There was every possibility of spillage of oil during filling of diesel in engines and DG sets but no platform was provided for collected back spillage of oil.
102. The path of Cruise was quite close to Van Vihar National Park, falls under 'Silent Zone', but noise pollution was being caused and it was likely to affect/damage the ecological balance of Van Vihar National Park by disturbing wild life in the said Park. Lastly, no record of waste oil or used oil was maintained. There was clear violation of HOWMTM Rules, 2016.
103. Storage of oil was found near the engines, DG set and on bottom of Cruise, that means, the oil was entering the Lake water also having been found at the bottom of Cruise. The claim of Zero emission was also not found correct and visual emission from exhaust pipe was found by CPCB team. Committee also found that wash basin waste water was also being directly discharged in the Lake water. It is not that the quality of water of Lake is very good as it has been found in 'C' Category (with moderate pollution) and also had a sewage contamination. It is an overall impact which a water body may have with the passage of time if not at a particular point of time when it will immediately get polluted but the with the passage of time, the situation may deteriorate.
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104. The provisions of Water Act, 1974 are clearly applicable. Since no Consent has been obtained by the operators of Cruise Boats or Motor Boats under Water Act 1974, running of same is clearly illegal.
105. Similarly, Air Act, 1981 is also attracted. Emission of any air pollutant amounts to air pollution. Air pollutant is defined as to constitute solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property. The term 'emission' is defined in Section 2(j) of Air Act, 1981, as under:
"2(j) "emission" means any solid or liquid or gaseous substance coming out of any chimney, duct or flue or any other outlet;
106. Section 22 prohibits discharge or cause or permit to be discharged emission of any air pollutant in excess of the prescribed standards.
107. It is contended that Cruise Ship/Boat/Motorised Boat are not industry within the definition of industry under Industrial Disputes Act, 1947. In our view, reference to Industrial Disputes Act, 1947 for considering application of Air Act, 1981, Water Act, 1974 and EP Act, 1986 is thoroughly misconceived. The purpose of definition of 'industry' in Industrial Disputes Act, 1947 is totally different while under the environmental laws, the purpose is protection of environment and, therefore, the terms have to be given widest permissible meaning. In order to attract the provisions of Air Act, 1981, we find that the term 'industrial plant' is defined in Section 2(k) and reads as under:
"(k) "industrial plant" means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere;"
108. 'Industrial plants' include any plant used for any industrial or trade purposes, therefore, anything which is used even for trade purposes is 62 within the term 'industrial plant' under Air Act, 1981.
109. We also find that the term 'Occupier' has been defined under Section 2(m) and it is not confined to a factory but covers even a premises which is a very wide term. Purpose of Air Act, 1981 is to prevent air pollution effectively and, therefore, the terms used in Air Act, 1981 have to be given the widest permissible meaning.
110. A Cruise used for recreational purposes for the public at large against consideration is clearly a plant used for trade purposes and if it emits pollutants in the air causing pollution, it attracts the prohibition contained in Air Act, 1981 and, therefore, needs consent under the said Act. No such consent has been obtained for operating Cruise in the case in hand.
111. We also find violation of HOWMTM Rules, 2016 which have been framed in exercise of powers under Sections 6, 8 and 25 of EP Act, 1986 and violation whereof, is an offence under Section 15 of the said Act. The term 'Hazardous Waste' is defined in Section 3(17) and reads as under:
"(17.) "Hazardous waste" means any waste which by reason of characteristics such as physical, chemical, biological, reactive, toxic, flammable, explosive or corrosive, causes danger or is likely to cause danger to health or environment, whether alone or in contact with other wastes or substances, and shall include -
(i) waste specified under column (3) of Schedule I;
(ii) waste having equal to or more than the concentration limits specified for the constituents in class A and class B of Schedule II or any of the characteristics as specified in class C of Schedule II; and
(iii) wastes specified in Part A of Schedule III in respect of import or export of such wastes or the wastes not specified in Part A but exhibit hazardous characteristics specified in Part C of Schedule III;"
112. It is not disputed before us that diesel is a hazardous substance, 63 attracting the provisions of HOWMTM Rules, 2016. Rule 6 requires every occupier of the facility who is engaged in handling, storage, transportation, use etc. of hazardous and other waste to obtain authorization for the said purpose. No authorization has been obtained by the operators of Cruise in the present case.
113. However, it is contended that the provisions of Rule 6 are applicable to an occupier of the facility. The term 'facility' is defined in Rule 2(15) and it is said that Cruise Boat cannot be treated to be a facility. However, we find it difficult to accept this contention. Here also the term 'facility' is used in a very wide sense by referring to any establishment. A Cruise Boat in its entirety is an establishment which carry out the processes incidental to storage, handling of hazardous and or other wastes.
114. We have already said that the term 'hazardous waste' is defined in Rule 3(17) while term 'other wastes' is defined in Rule 3(23) and reads as under:
"23. "other wastes" means wastes specified in Part B and Part D of Schedule III for import or export and includes all such waste generated indigenously within the country;"
115. The term 'waste' is also defined in Rule 3(38) as under:
"38. "waste" means materials that are not products or by-products, for which the generator has no further use for the purposes of production, transformation or consumption. Explanation.- for the purposes of this clause,
(i) waste includes the materials that may be generated during, the extraction of raw materials, the processing of raw materials into intermediates and final products, the consumption of final products, and through other human activities and excludes residuals recycled or reused at the place of generation; and
(ii) by-product means a material that is not intended to be produced but gets produced in the production process of intended product and is used as such;"
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116. Various processes which a facility may carry out includes utilization and the term 'utilization' as defined in Rule 3(37), reads as under:
"37. "utilisation" means use of hazardous or other waste as a resource;"
117. The term 'used oil' is defined in Rule 3(36) as under:
"36. "used oil" means any oil-
(i) derived from crude oil or mixtures containing synthetic oil including spent oil, used engine oil, gear oil, hydraulic oil, turbine oil, compressor oil, industrial gear oil, heat transfer oil, transformer oil and their tank bottom sludges; and
(ii) suitable for reprocessing, if it meets the specification laid down in Part A of Schedule V but does not include waste oil;"
118. Looking to the entirety of the provisions of HOWMTM Rules, 2016 and the fact that the same are beneficial and for protection of environment, we are of the view that the same would apply to the Cruise Boats in question.
119. Thus, we are of the view that Cruise(s) run/operates in inland waters mechanically propelled, using motors and fuel/diesel oil/petrol are within the ambit of provisions of Water Act, 1974, Air Act, 1981 and EP Act, 1986 and rules framed thereunder. Since no consent/ NOC/ Clearance/ permission has been obtained from the Statutory Regulator or Competent Authority under the relevant environmental laws including Rules framed under the aforesaid Statutes, running of Cruise Ships/Boats in various water bodies of State of Madhya Pradesh which are detailed above including Bhoj Wetland is illegal and cannot be allowed to continue in violation of the above provisions.
120. It is argued that plying of non-motorized boats is a regulated activity in para 4(B) and community based eco-tourism (with minimum 65 construction activity) is a permitted activity under para 4(C). Since motorized boats is not mentioned as such in the order dated 16.03.2022, it means that there is no restriction of plying of motorized boats in the wetland and therefore, running of Cruise Boat which is operated by motors is neither illegal nor contrary to the provisions of Wetland Rules, 2017 and statutory orders issued therein.
121. We find no merit in the submission.
122. When out of various modes, one mode is specifically mentioned in a statutory order, unless there is an inbuilt suggestion, the remaining modes will be treated to be deliberately omitted and cannot be treated to be permitted activities. Community based eco-tourism cannot be extended to the term plying of motorized boats which is a serious activity when plying of non-motorized boats has been kept in the category of regulated activities. In our view, the term 'conversion for non-wetland uses' in para 4(A)(a) of the order dated 16.03.2022 is very wide and cover all activities unless specifically mentioned in regulated or permitted categories. Further, there is a complete prohibition in respect of storage of hazardous substance covered by HOWMTM Rules, 2016.
123. In our view, plying of non-motorised boats in a regulated manner is permitted by the order dated 16.03.2022 read with Wetland Rules, 2017 though it is a non-wetland use but the plying of motor boats is totally prohibited and cannot be allowed in a wetland since it is non wetland use and is totally prohibited. Use of wetland for an activity which is prohibited is per-se illegal and is an offence under Section 15 of EP Act, 1986.
124. Now coming to the aspect of illegal construction in the area of Zone of Influence, it is no doubt true that temporary construction or temporary jetty for use of the boats is a permitted activity and by itself will be not 66 objected by application of the provisions of Wetland Rules, 2017 read with administrative order dated 16.03.2022. However, photographs appended to the documents show that for the purpose of construction of restaurant/waiting area, trees have been cut but it has not been placed on record that permission from the Competent Authority was obtained.
125. On this aspect, we find that Principal Chief Conservator of Forest of the concerned area would look into this matter and take appropriate action in accordance with law.
126. We further provide that no permanent construction shall be allowed to be raised within the 'No Development Zone' i.e., 'Zone of Influence' or 'buffer zone' as provided in Wetland Rules, 2017. We also make it clear that in case any permanent construction has been raised within 'wetland area' or 'Zone of Influence' or 'buffer zone', the same shall be demolished forthwith and MPPCB is directed to ensure compliance of this direction.
127. In view of the above discussion, the issues formulated above, are answered against the respondents and in favour of applicant.
128. With regard to other bodies, discussions and observations made above will equally apply and shall be observed, followed and complied accordingly in words and spirit and strictly.
129. In the result, respondents' authorities are directed to stop operation of Cruise and other motor propelled boats in Bhoj Wetland being Ramsar site and other wetlands, details given herein above, forthwith. They are restrained from raising any permanent construction within 'Zone of Influence' of water bodies/wetlands and if any permanent construction has been raised, the same shall be demolished.
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130. The respondents are restrained from running Cruise Boats and any other boat operated with motors in Bhopal Lake (Ramsar site) and other designated wetlands. The above restrictions will not apply to non- motorised Boats/Cruises. However, if such non-motorised Boats and Cruises deploy any system creating noise etc., the relevant environmental Statutes shall be followed.
131. The operation of the boats in the lakes/water bodies not designated as wetlands may be carried out with the boats fitted with four stroke outboards engines as being utilized in more than three dozen Countries in the World, subject to compliance of environmental laws.
132. The fitness standards of the boats should be given top priority and accordingly periodical and regular maintenance of the boats had to be carried out. Fitness of boats should include inspection of boats from top to bottom, inspection of wear and tear, fibre and wooden repair, noise level, oil/grease leakage, checking buoyancy and balance of the boats, painting and polishing work etc.
133. MPPCB and Forest Department shall also ensure that the activities within prohibited range from Reserved Forest, National Parks, Eco- Sensitive Zone etc. are not allowed so as to disturb, disrupt and damage wildlife activities unless due permission/clearance/NOC, if permissible, is obtained from the concerned authorities.
134. MoEF&CC and CPCB are directed to formulate a SoP for the motorized boats in water bodies/lakes (not designated as wetlands), if the motors are fitted with four stroke outboard engines or operated by green fuel and do not cause any damage to water and air ecology and environment.
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135. The above directions shall be carried out by the respondents and MPPCB shall ensure compliance thereof and submit an action taken Report within 3 months before Registrar of Central Zonal Bench, Bhopal by e-mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF, who if finds necessary, may place the matter before the Bench for further order if necessary.
136. With the above observations/directions, this OA is allowed. Pending IAs stand disposed of.
137. Copy of this order be forwarded to Regional Office, MoEF&CC at Bhopal, Secretary, MoEF&CC, CPCB, Member Secretary, MPPCB, Commissioner, BMC, Chief Secretary, State of Madhya Pradesh, Secretary, Environment Department, Secretary, Forest Department, Department of Water Resources, River Development and Ganga Rejuvenation, Bhopal Smart City Development Corporation Limited, MP State Wetland Authority, Secretary, MP Tourist Department and MP Tourism Board for information and compliance.
SUDHIR AGARWAL, JUDICIAL MEMBER DR. AFROZ AHMAD, EXPERT MEMBER September 12, 2023 Original Application No. 82/2022(CZ) R 69