Uttarakhand High Court
Unknown vs There Is Sufficient Runoff From The ... on 22 November, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE
WRIT PETITION (PIL) NO. 19 OF 2022
22ND NOVEMBER, 2022
BETWEEN:
Suo Motu PIL In the matter of Preservation of Sukhatal Lake
and to Stop Concretization
.....Petitioner.
And
State of Uttarakhand & others ....Respondents.
Counsel for the Petitioner : Dr. Kartikey Hari Gupta, learned
Amicus Curiae with Ms. Irum
Zeba, learned counsel.
Counsel for the State : Mr. Anil K. Bisht, learned
Additional Chief Standing
Counsel.
Counsel for the KMVN : Mr. Shobhit Saharia, learned
counsel.
Counsel for the DLDA Nainital : Mr. Sandeep Kothari, learned
counsel.
The Court made the following:
ORDER:(per Hon'ble The Chief Justice Sri Vipin Sanghi) The present public interest litigation was initiated suo motu by this Court on 02.03.2022, on the basis of a letter dated 16.12.2021, written by one Dr. Anil Bisht, Professor (Retd.), Kumaun University along with the support of 104 other persons, pleading to this Court to take suo motu cognizance of, what is claimed to be, "ongoing destruction happening on Sukhatal Lake in the name of development". The communication states that the catchment area and recharge zone of Sukhatal had directly been feeding the 2 Nainital lake in the lean months for the past 100 years and more. The communication states that the concerns with regard to Sukhatal were raised at the town meeting held with the Nainital Administration at the Lake Development Office, Nainital on 14.07.2021. In response, a panel of four experts was constituted to provide necessary feedback and guidance on the planned project. The letter petition states that no information was passed on to the experts, and the citizens have apprehensions that the Authority will go ahead with their plan of concretization of the lake bed, which, unfortunately, appears to have come true. The letter petition states that the hydrological regime of Sukhatal is being altered, which would impair its natural property of water infiltration, leading to severe and adverse consequences for the Nainital lake and the city as a whole. This apprehension, unfortunately, also appears to have come true, with the level of water in the Nainital going down significantly in the summer months.
2. Along with the letter petition, a set of expert findings- which establish the Social/ Ecological and Scientific grounds for the concerns raised in the said letter petition, has been placed on record. Some to them would be referred to a little later by us.
3. On 02.03.2022, the Additional Chief Standing Counsel for the State was directed to accept a copy of the 3 petition, and communicate the same to all the Secretaries named in the letter petition, namely the Chief Secretary, State of Uttarakhand, Dehradun; the Principal Secretary, Forest and Environment, State of Uttarakhand, Dehradun; the Commissioner, Kumaun, Nainital; the Secretary, Urban Development, State of Uttarakhand, Dehradun; the Secretary, Disaster Management, State of Uttarakhand, Dehradun; the District Magistrate, Nainital; the Managing Director, KMVN, the Secretary, District Level Development Authority, Nainital, apart from four expert members, namely Prof. Ajay Rawat, Dr. Vishal Singh, Mr. Anupam Sah, and Prof. C.C. Pant. These four individuals named are described as 'Expert Members'. At this stage itself, we may take note of the fact, that the said four individuals are stated to have been nominated by the civil society to hold a dialogue with the authorities in the matter of development of Sukhatal lake.
4. Counter-affidavits have been filed by the District Magistrate, Nainital; the Secretary, District Level Development Authority, Nainital; the Additional Secretary, Public Works Department, and; the Managing Director, KMVN.
5. We have heard Dr. Kartikey Hari Gupta, learned Amicus Curiae, appointed by the Court, at some length. We also called upon and requested Mr. Aditya Pratap Singh, Advocate, who appears for the Uttarakhand State Pollution Control Board in cases before us, to render his assistance. We 4 have also heard, very briefly, Mr. Sandeep Kothari, who appears for the District Level Development Authority, Nainital, and Mr. Shobhit Saharia, who appears for the KMVN- the executing agency of the development work being undertaken at Sukhatal.
6. Dr. Gupta has, firstly, submitted that there are Hydrological Studies which have been conducted in relation to the Nainital lake, as early as in the year 1998, by the National Institute of Hydrology, Roorkee. As per the said study, the Nainital lake gains about 39% of its water resource, as subsurface inflow. Pertinently, Sukhatal contributes 40-50% of total subsurface inflow into the lake. This means that about 18-20 % of the total volume of water that Nainital lake receives, is directly flowing from Sukhatal.
7. He has also referred to a report of the Expert Group Meeting- facilitated by the Centre for Ecology Development and Research (CEDAR), in a two day conference held on 09.04.2015 and 10.04.2015 to understand the hydrological significance of Sukhatal and its implications for Nainital lake. This meeting was attended by twelve experts. The said report contains a graphic representation of the topography of Sukhatal lake and Nainital lake. The graphic representation of the topography contained in this report is as follows:- 5
8. From the aforesaid, it is seen that Sukhatal lake is situated at a higher altitude than the Nainital lake. The water flows through the subsurface of Sukhatal lake into Nainital lake by gravitational pull, apart from recharging the water in other surrounding areas of Sukhatal lake. The said Expert Group also made certain recommendations in its report.
9. Dr. Gupta has then referred to the counter-affidavit filed by the Secretary, DLDA, Nainital. In his affidavit, the Secretary Mr. Pankaj Kumar Upadhyay, states that Sukhatal lake is situated adjoining Nainital-Kaladhungi- Motor Road. It is a natural water reservoir in which the water is collected from the catchment area during monsoon season. The water retention by the lake is only for a limited period of time in the year and, thereafter, the lake is dried up. The affidavit states that with over time, Sukhatal lake, once it dries up, is used as a dumping zone for debris, and there are encroachments made in the lake area. It refers to earlier Public Interest 6 Litigation dealt with by this Court being Writ Petition (PIL) No.31 of 2012, "Dr. Ajay Singh Rawat vs. Union of India & others." In the said writ petition, on 03.06.2014, this Court directed the Commissioner, Kumaon Division, who is also the Chairman of the Lake Development Authority, to inform about the steps being taken for preservation of water bodies, i.e. different lakes of Nainital and in the periphery of Nainital. It also refers to the order dated 03.07.2014, whereby the Commissioner, Kumaon and District Magistrate, Nainital were required to come up with concrete proposal for the beautification of Sukhatal lake.
10. We may only observe that the context in which the said order for beautification of Sukhatal was passed, appears to have been misunderstood and misinterpreted. The context in which the said order came to be passed, as is evident to us, was that the Sukhatal lake was being used as a dumping ground for malba, and also being encroached upon. The Court did not direct the undertaking of beautification of Sukhatal lake by "concrete development"- the manner in which the expression "concrete proposal for beautification of Sukhatal lake", appears to have been misunderstood to mean beautification by use of "concrete development".
11. At this stage, we may observe that photographs have been placed before us by Dr. Gupta, as well as by the DLDA, Nainital and the KMVN, which show that, literally, 7 concrete development of Sukhatal lake has been undertaken by bifurcation of lake into two water bodies, with the use of concrete materials and encircling the said bifurcated lake within a concrete path. As would be seen from the following paragraphs, the lake bed is also being made impermeable.
12. The affidavit of the Secretary, DLDA discloses that Indian Institute of Technology, Roorkee and the Wadia Institute of Himalayan Geology, Dehradun were engaged in the light of the orders passed by this court on 03.07.2014 and 31.07.2014 in the earlier PIL. The three member expert body, on the basis of inspection, submitted a report containing three options. These three options mentioned in the report are the following:-
Activity Components Positive aspects Negative aspects Option 1 Provision of No impact on Doubtful boundary pillars seepage control of Spillage encroachments arrangement Area will be Conveyance dry most of the arrangement time Poor aesthetics No resident/ tourist attraction Option 2 Provisions of No impact of Area will be boundary wall seepage dry most of the Spillage Better control time arrangement of Poor aesthetics Conveyance encroachments Low resident/ arrangement as compared to tourist Shoreline Option-1 attraction development works Option 3 Provision of Will create a Almost no boundary wall water body seepage from covering an area round the the enclosed 2 of 22,000 m year. area but Spillage Control of reduction in arrangement encroachment seepages Conveyance s insignificant in 8 arrangement High overall Bed and side Aesthetics context.
treatment High resident/
Shoreline tourist
development attraction
13. The project report itself has been placed on record along with the affidavit.
14. Dr. Gupta has also drawn the attention of the Court to a detailed project report for Rejuvenation of Sukhatal, Nainital, prepared by the Alternate Hydra Energy Centre (AHEC), Indian Institute of Technology Roorkee (IITR), in association with the Wadia Institute of Himalayan Geology, Dehradun in September, 2017, and in particular to the conclusions drawn in the said report, which are as follows:-
"3.7 Conclusions & Recommendations
(i) There are in-situ rock exposures partly at the base of western part of Sukhatal only (Fig.3.6). Therefore, care should be taken to carry out minimum excavation affecting the bed sediment/ boulder/ rock deposits so that the gradient of the hill slope does not change abruptly as this is likely to accelerate landslides/ mass movement in the periphery of Sukhatal.
(ii) The lithologs provided by the Irrigation Department show that bed material of Sukhatal Lake mainly consists of boulders, gravel, sand and little surface clay up to 51.30 m depth. The structure is suggestive of high porous medium in the bottom of the lake. The observed structure and high permeability of bed material do not allow rain water to be retained in the depression.
(iii) In order to get optimum benefit of the bio-engineering measures to mitigate surface/ subsurface soil erosion, shallow mass wasting along with ecological regeneration, the propagation of the recommended plant species need to be done according to their ecological association along with three tier system, i.e. herb, shrub and tree during suitable 9 seasons. Fresh landslide areas and places susceptible to soil erosion/ mass wasting on steep slopes need to be treated with herbs of first succession such as eriophorumcosmosum which has effective shoot and root system."
15. We may notice that in relation to Option-'3', mentioned in the aforesaid tabulation, the report states that "Option-3 was proposed after deliberations with the sponsor in the final study report (2016)." The sponsor of the said report was the Development Authority itself. The aforesaid gives a clear impression, that the third option was not an option considered by the Expert Committee on its own, but it emerged only upon discussion with the sponsor later on.
16. A perusal of the three options aforesaid would also show that the first two options had the positive aspect of there being no impact on seepage from Sukhatal lake. Meaning thereby, that the permeability of the surface of Sukhatal lake would not be impacted. Consequently, the said lake would continue to recharge Nainital lake and other surrounding areas naturally, as it has been doing over the centuries. The third option, however, directly impacted the natural permeability and seepage from Sukhatal lake, and under the third column, which enlists, "the negative aspects", it states that "almost no seepage from the enclosed area but reduction in seepage insignificant in overall context." 10
17. The affidavit further goes on to state that in a meeting convened under the Chairmanship of Chief Engineer, Department of Irrigation on 24.05.2017, a consensus was arrived at that Option-2 provided by the IIT, Roorkee can be proceeded with, and accordingly, the IIT was communicated to submit the D.P.R. on the basis of the said second option. Interestingly, the affidavit goes on to state that before the final sanction was given to the D.P.R. provided by the IIT, Roorkee, on the lines of Option-2 aforesaid, the Commissioner, Kumaon Division visited Sukhatal and during the said inspection, it was suggested that "instead of Option- 2, Option-3 can be adopted, and on the basis of the suggestions/ directions so given by the Commissioner, Kumaon Division, the District Level Development Authority, Nainital, Irrigation Department and the Jal Sansthan Nainital were to submit a project report." (emphasis supplied)
18. From the aforesaid, it appears that the Commissioner, Kumaon Division, on a mere site visit, decided to overturn the decision founded upon consensus arrived at in the meeting under the Chairmanship of Chief Engineer, Department of Irrigation, and to go with Option-3, instead of Option-2, which would have a serious impact on the natural flow of water from Sukhatal lake into the Nainital lake, as well as in other areas which were recharged by the Sukhatal lake. We may again take notice of the fact that Option-3 was 11 incorporated at the instance of the sponsoring authority, i.e. the DLDA.
19. After the visit of the Commissioner, Kumaon Division, the steps to be taken to protect and preserve the Sukhatal lake appear to have undergone a U-turn. The IIT, Roorkee then prepared another report on 12.10.2021, which proposed as follows:-
"Hydrological and Drainage aspects:
1. There is sufficient runoff from the catchment of Sukhatal to fill up the lake even in years when the rainfall is below average.
2. An outlet in the form of spillway, 9m wide has been provided at the North-East end of the depression, which will be able to pass 3.5m3/s with a head of 0.4m.
3. A steel pipe of 0.85m diameter is proposed to be provided on the downstream side of the weir to drain of the excess discharge to the Nainital club drain below the telephone exchange at a distance of about 506 m. An outlet structure at the downstream end of the drainpipe shall be provided to dissipate excess energy of the water. Proposed perennial lake:
4. The bed of the proposed perennial lake should not be made impermeable by lining it with cement concrete. Use of Geosynthetic Clay Liner of similar material is recommended to make the bed impermeable.
5. The arrangement for filling the perennial lake seems fine.
6. Few solar powered fountains or arraignment for aeration from the bottom may be made to ensure the aeration resulting in good water quality in this lake. Proposed Infiltration wells:
7. Since only about 1.35% of the total area of the catchment will be used in the artificial lake, the reduction in recharge due to this is going to be negligible. The provision of infiltration wells as proposed, besides being an eyesore will also require drilling to considerable depths and may 12 disturb the subsurface lithology of the area. What will be the order and extent of this disturbance cannot be exactly predicted. In view of the above, these are not recommended.
Proposed Children Park:
8. The proposal to establish a children's park in the area where the levels are much higher (about 3m) than the surrounding area is not recommended as it would mean encroaching upon the lake area. It is suggested that the overburden in the raised portion-which is mostly construction debris and other material- be removed and the area brought to nearly the same level as the adjoining area.
Thus, this area will also get filled up with water during monsoon thereby resulting in an increase of the area of the natural lake. A wooden deck may, however, be provided above the water level at this site for people to cross over or enjoy the scenario."
20. The last report prepared by the IIT, Roorkee, referred to above, inter alia, proposes the creation of an impermeable lake bed by lining it with cement concrete. The relevant extract from the said report reads as follows:-
"This proposal envisages creation of a perennial lake by enclosing an area of 9,145 sq. m. on the deepest part of Sukhatal by enclosing it with walls on all the sides and making the bed impermeable by lining it with cement concrete." (emphasis supplied)
21. Mr. Aditya Pratap Singh, has assisted the Court by placing before us the notification dated 14.09.2006, issued by the Ministry of Environment and Forests under Rule 5(3) of the Environment (Protection) Rules, 1986 for imposing certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impacts. 13 Rule 2 of the said Notification (referred as EIA Notification 2006), states that projects and activities in respect of matters falling in Category 'A' and Category 'B' of the Schedule shall require prior environment clearance from the concerned regulatory authority. In respect of matters falling in Category 'A', prior approval would be taken from the Central Government in the Ministry of Environment and Forests, and in respect of matters falling in Category 'B' of the Schedule, prior approval is required to be obtained from the State Environment Impact Assessment Authority (SEIAA), which is to be constituted by the Central Government under Section 3(3) of the Environment (Protection) Act, 1986. Rule 7 sets out the stages in the prior environmental clearance (EC) Process for New Projects. The four stages, in which environment clearance is to be obtained in sequential order as the following:-
"Stage(1) Screening (Only for Category 'B' projects and activities) Stage (2) Scoping Stage (3) Public Consultation Stage (4) Appraisal."
22. We may now turn to the Schedule to the EIA Notification, 2006. Entry 8(b) of the said Schedule reads as follows:-
14
SCHEDULE (See paragraph 2 and 7) LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL CLEARNANCE Project of Activity Category with Condition if threshold limit any A B 1 Mining extraction of natural resources and power generation (for a specified production capacity) (1) (2) (3) (4) (5) 8(b) Townships Covering an ++ All and Area area≥ 50 ha projects Development and or built under item projects up areas ≥ 8(b) shall 1,50,000 sq. be mts. ++ appraised as Category B1
23. The development of Sukhatal lake being undertaken by the respondents, prima facie, is an area development project, inasmuch, as the said development project has been undertaken by the respondent-District Level Development Authority, Nainital. We are informed that the project has, in fact, now been taken over by the State Government, and it is now funded by the State Government and not by the DLDA, Nainital any further.
24. The submission of Mr. Sandeep Kothari, learned counsel for the DLDA is that only those area development projects which cover the area of more than 50 hectares, and or have a built up area of greater than 1,50,000 sq. mts. would be covered by the EIA Notification, 2006. He submits that there is nothing placed on record to show that the area 15 of Sukhatal is greater than 50 hectares, or it has built up area greater than 1,50,000 sq. mts.
25. Prima facie, we cannot accept this submission, for the reason that the area development project does not concern merely geographic limits of Sukhatal, but it covers the Nainital lake and other areas which are recharged by Sukhatal lake. Sukhatal lake has a direct subsurface connection with Nainital, and since Sukhatal and Nainital are directly connected at subsurface level, any development of Sukhatal area would directly impacts Nainital. Pertinently, it is the same Local Development Authority within whose jurisdiction Nainital and Sukhatal are situated. This is because they are in very close proximity geographically and form part of the same area. Moreover, judicial notice can be taken of the fact that ever since the said development activity has been undertaken, the water level of Nainital- particularly in the summer months has significantly fallen. Therefore, the area of Nainital lake, as well as the other adjoining areas of Sukhatal, which are recharged by its water would have to be taken into consideration while calculating the area coverage for the purpose of EIA Notification 2006.
26. Prima facie, it appears to us that the said area development project could not have been initiated without obtaining clearance from SEIAA. Admittedly, there is no clearance, whatsoever, obtained from the SEIAA. 16
27. There is another significant aspect which we may take note of. The Wetlands (Conservation and Management) Rules, 2017 have been framed by the Central Government under the provisions of Environment (Protection) Act, 1986. The expression 'wetlands' is defined under Rule 2(g) to mean "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."
28. Clearly, the Sukhatal lake is a wetland falling within the definition aforesaid. Rule 4 of these Rules lay down the restrictions on the activities which could be carried out in wetlands. Rule 5 relates to the constitution of Wetlands Authorities. The Central Government vide the said Rule constitutes the State Wetlands Authority in each of the State, consisting of Minister In-charge of the Department of Environment/ Forests of the State Government, or Minister In-charge of the Department handling wetlands, as the Chairperson; the Chief Secretary of the State or Additional Chief Secretary equivalent, as Vice-Chairperson; the 17 Secretary in-charge of the Department of Environment, as the Member ex-officio, apart from several other ex-officio members. The said authority also has a Director, State Remote Sensing Centre; the Chief Wildlife Warden; Member Secretary, State Biodiversity Board; Member Secretary, State Pollution Control Board, apart from others, as the ex-officio members; one expert each in the fields of wetland ecology, hydrology, fisheries, landscape planning and socio-economics to be nominated by the State Government, and; the Additional Secretary/ Joint Secretary/ Director in the Department of Environment/ Forests or Department handling wetlands, as Member Secretary.
29. Mr. Singh informs that the Member Secretary, Uttarakhand State Pollution Control Board, is presently also the Member Secretary of the Wetlands Authority. The same gentleman is also the Director, Environment in the State. Mr. Singh states, on instructions, that the development project for development of Sukhatal lake has not been placed before the Wetlands Authority, and no approval from the said Authority has been obtained. He has placed before us Office Memorandum No./X-3-18-09(10)2004, dated 16.10.2019, constituting the Wetlands Authority in the State of Uttarakhand. He has also placed another Office Memorandum of the same date bearing No. /X-3-19-09(10)2004, constituting the State Level Technical Committee under the 18 Wetlands Authority. The said State Level Technical Committee has nine members. Mr. Singh informs that the Director, Environment, and the Member Secretary, Uttarakhand State Pollution Control Board, is Mr. S.P. Subudhi. He is also the member of the State Level Technical Committee. He states that State Level Technical Committee has not been called upon to examine or assess the development project being undertaken by the respondent for development of Sukhatal lake.
30. The photographs placed before us show the serious environmental degradation of Sukhatal. The photographs show that on one side, there is a multi-level car parking which we are informed, has existed for quite some time now. A part of Sukhatal has been enclosed by stonewalls, and it has been fenced with stone pillars and iron railing. It is obvious that the foundation would have been laid to make the said fence. In front of the fencing, there is a concrete pathway. Though, it is stated by Mr. Saharia that the said concrete pathway has been made only as a temporary measure to transport the machinery, the photographs do not give that impression. We may reproduce a couple of these photographs, which have been tendered in Court by Dr. Gupta.
19
31. The District Level Development Authority, Nainital has placed on record along with its counter-affidavit, what is claimed to be the Environmental Impact Assessment conducted by the IIT, Roorkee. Firstly, we may observe that the IIT, Roorkee is not the constituted authority to carry out the environmental impact assessment. It is also interesting to 20 note that while making the said assessment, and dealing with the aspect "impact on the Nainital lake", the assessment report states that "since only walls and piers are being constructed to enclose the area, the impact of the same is likely to be negligible to the subsurface flow into the Nainital lake. Further, it is worth mentioning that this contribution is primarily during the monsoon months and immediately thereafter. During this period the Nainital lake is already full and at times even its sluices are opened to let the excess water spill. Thus, any adverse impact on the Nainital lake is not envisaged." (emphasis supplied)
32. Thus, it would be seen that what was projected before the IIT, when it made the Environmental Impact Assessment, was that only walls and pillars are being constructed to enclose the area. The use of an impermeable layer on the surface of the lake- even in a part of it, is something which was not even present to the mind of the IIT, Roorkee when it prepared the Environmental Impact Assessment.
33. In the light of the aforesaid, we are inclined to, firstly, issue notice to the SEIAA, through its Chairman Mr. Amulya Ratan Sinha, IFS (Retd.), 11-Kishanpur, Rajpur Road, Dehradun- 248009, email- [email protected]. We also issue notice to the State Level Expert Appraisal Committee, constituted by the Central Government in 21 consultation with the State Government, i.e. SEAC, through its Chairman Mr. Shailendra Sigh Bist, Madhu Vatika, Nursery Road, Shrinagar, Garhwal, PIN- 246174, e-mail:
[email protected]. We also issue notice to the State Wetlands Authority, through its Member Secretary.
34. Mr. Anil K. Bisht, learned Additional Chief Standing Counsel accepts notice on behalf of the State Wetlands Authority.
35. Let an amended memo of parties be filed by the learned Amicus Curiae.
36. Court notice be issued to SEIAA and the SEAC, returnable by 20.12.2022.
37. Till the next date, all further development and construction activities at Sukhatal lake shall remain suspended.
38. We may also take note of the fact that large scale encroachment appears to have taken place in and around the Sukhatal. We are informed by learned counsels that demolition orders for removal of encroachment have already been passed.
39. We direct the DLDA to file an affidavit placing on record the demolition orders and disclosing as to what steps they have taken to implement the same. We also direct the 22 said Authority to undertake the process of removal of encroachment without any further delay. Mr. Sandeep Kothari states that 44 cases of encroachment have been identified which are required to be demolished. The status report to be filed by the Development Authority should specifically deal with it as well.
40. The State Administration is directed to provide necessary police force for carrying out the activity of demolition of encroachment.
41. List this case on 20.12.2022.
(VIPIN SANGHI, C.J.) (RAMESH CHANDRA KHULBE, J.) Dated: 22nd November, 2022 NISHANT