National Green Tribunal
Kaushal Kumar Tripathi vs Ministry Of Urban Development on 11 August, 2023
Item No. 04 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 491/2023
Kaushal Kumar Tripathi Applicant
Versus
Ministry of Urban Development Respondent
Date of hearing: 11.08.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, CHAIRPERSON
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
ORDER
1. The grievance of the applicant in encroachment of pond area in Nagar Panchayat, Sahjanwa, District Gorakhpur. The contention of the applicant is that the pond area is being encroached by several persons and a representation was sent before the Competent Authority/District Magistrate, Gorakhpur but no action has been taken by the authorities concerned.
2. Repeated directions have been issued by this Tribunal for removal of encroachment, protection and rejuvenation of ponds/water bodies. The directions issued in Original Application No. 325/2015 Lt. Col.
Sarvadaman Singh Oberoi vs Union of India & Ors. vide order dated 18.11.2020 is quoted below:-
"5. The Tribunal noted the need for conservation of water bodies throughout India for healthy environment, particularly in the light of judgment of the Hon'ble Supreme Court in Hinch Lal Tiwari v. Kamala Devi & Ors. (2001) 6 SCC 496. The Tribunal observed that under Public Trust Doctrine, the State has to maintain and restore the water bodies. This inter-alia helps availability of water, protection of aquatic life, maintaining micro climate, recharge the ground water and e-flow of the rivers. In view of mandate of law laid down by the Hon'ble Supreme Court and the NGT Act, 2010, the Tribunal directed all States/UTs to take up the task of restoration of 1 the water bodies in their respective jurisdiction and the Chief Secretaries of all States/UTs to oversee the compliance in the course of monitoring compliance of waste management rules and other significant environmental issues for which separate directions were issued by this Tribunal (in OA 606/2018) in the light of directions of the Hon'ble Supreme Court. Further directions of this Tribunal (in OA 673/2018) related to remedial action for abatement of 351 identified polluted river stretches which were also to be monitored by the Chief Secretaries. A Central Monitoring Committee (CMC) comprising Secretary Ministry of Jal Shakti with CPCB and other authorities were to monitor compliance at National level. A status report was directed to be compiled and filed by the CPCB. Operative part of order dated 10.5.2019 is reproduced below:
"13. Thus, to give effect to 'Precautionary' principle and 'Sustainable Development' principle, we direct all the States and UTs to review the existing framework of restoration all the water bodies by preparing an appropriate action plan. Such action plans may be prepared within three months and a report furnished to the CPCB. The CPCB may examine all such plans and furnish its comments to this Tribunal within two months thereafter. The Chief Secretaries of all the States/UTs in the course of undertaking monitoring exercise in pursuance of the order of this Tribunal in O.A No. 606/2018, Compliance of MSW Rules, 2016, may also include restoration of water bodies as one of the items as the same is also incidental to waste management which are covered by orders in O.A No. 606/2018, Compliance of MSW Rules, 2016.
14. The CPCB may prepare and place on its website guidelines in the matter of restoration of water bodies in the light of above order within one month.
15. The matter may also be monitored by Central Monitoring Committee constituted in terms of order dated 08.04.2019 in O.A No. 673/2018, News item published in "The Hindu" authored by Shri Jacob Koshy titled "More river stretches are now critically polluted: CPCB, as this matter is connected to the steps required for remedying the polluted river stretches as already explained."
6. The matter was then considered on 25.02.2020 in the light of the report of the CPCB. The report mentioned that CPCB had issued the necessary guidelines on the subject such as identification and geo-tagging of ponds and lakes, maintaining water quality as per norms and removing encroachments. It was further stated that the States had failed to give proper response and the requisite information. The Tribunal, on consideration, directed as follows:
" ... ... ...
3. In pursuance of the above, the learned counsel for the CPCB has handed over a status report during the course of hearing to the effect that indicative guidelines for restoration of water bodies have been uploaded on the website of the CPCB on 18.06.2019 but most the States have not submitted their action plans. Out of 435 locations monitored, 357 locations were not complying with the primary water quality 2 criteria for bathing. CPCB constituted an expert committee vide order dated 28.08.2019 under the Chairmanship of MS, CPCB comprising, representatives of MoEF&CC, MoJS, MoHUA, IIT Delhi, officials of CPCB and DHWQM-I as member convener. First meeting of the expert Committee was held on 16.09.2019. The Tribunal has suggested following actions:
S. Activity proposed Organization Responsible No. 1 Identification and Geo- NRSA, State Space Application Tagging of Ponds or Centre and Concerned State Lakes in the Country Departments 2 Assessment of Water Through Laboratories approved Quality of Ponds or under E(P) Act, 1986 by the lakes. Concerned State Department /ULBs/State Environment Dept./SPCB/PCC.
3 Prioritization of Ponds State Environment Dept./SPCB or Lakes for restoration /PCC.
in consultation with the respective SPCB.
4 Preparation and State Environment Dept./SPCB submission of action /PCC.
plans for restoration of prioritized Ponds or Lakes to CPCB for random scrutiny of proposed action plans.
5 Execution of approved State Environment Dept./SPCB
action plans. /PCC under the overall
supervision of Principal Secretary,
Environment Department.
The CPCB conducted a workshop on the subject on 30.01.2020.
4. Learned counsel for the CPCB states that further progress in the matter is being monitored and a status report will be filed before the next date. It is stated that only 14 States/UTs have furnished information which is not complete while 22 States/UTs have not furnished any information.
5. Having regard to the significance of the issue and unsatisfactory response of the States as shown above, we direct that the information may be furnished by all the States/UTs by March 31, 2020 positively to the CPCB failing which the States will be liable to pay compensation at the rate of Rs. 1 lakh per month till information is furnished. Payment of compensation will be the responsibility of the Chief Secretaries of the respective States/UTs. Since we are informed that plans for restoration furnished by some of the States run even upto ten years, we direct that the action plans should provide for commencement of the work by 01.04.2020 and conclusion by 31.03.2021. The CPCB will be at liberty to issue appropriate directions to all the States/UTs by for compliance. The Ministry of Jal Shakti is also at liberty to take further remedial action in the matter."
38. Accordingly, a consolidated report has been filed by the CPCB on 29.10.2020 in two parts. Part A deals with the aspect of plans for restoration of water bodies and status of their execution while part B deals with the status of compliance of direction relating to water harvesting. The CPCB report points out the need for making a proper and centralized inventory of water bodies, and assessment of their water quality; the absence of a single nodal agency to oversee the management of restoration of polluted water bodies, and water harvesting; and recommends that the relevant Central Ministries, especially MoJS, play an increased and major role in implementation and oversight.
3. A report was called from the states for restoration of water bodies and at sr. no 32 in the State of Uttar Pradesh, 508 ponds have been identified and restoration matter was taken up to only 84 and rest 424 are under process of restoration and no further steps have been reported to be taken by the state authorities. CPCB gave following suggestions:-
"13. Finally, the CPCB has given following suggestions:-
"7.0 Suggestions As multiple agencies or State Departments/UT Administration Departments are involved in implantation of policies related to Rain Water Harvesting (RWH), information provided by different departments of the State/UT are not corroborating with each other leading to confusion. All the States/UTs shall nominate single Nodal Department for implementation of policies relating to rain water harvesting system.
Every ULBs should have one Rain Water Harvesting cell in place to regulate and monitor the Rain Water Harvesting related activities effectively.
Ministry of Housing & Urban Affairs (MoHUA), Central Ground Water Authority (CGWA) and Department of Water Resources (DoWR), Ministry of Jal Shakti (MoJS) should play a major role in ensuring implementation of policies relating to rain water harvesting in the Country with a mutual co-ordination and for providing requisite guidance and necessary initiatives for ensuring compliance to Hon'ble NGT orders passed in the matter of Tribunal in its Own Motion Vs Government of NCT of Delhi & Ors in OA No 496/2016 in connection with Rain Water Harvesting and Ground water recharging for water conservation.
Presently, provisions for Rain Water Harvesting (RWH) Systems are incorporated mainly under Building Bye-Laws by the 4 States/UTs/ULBs. There is a need to enact legislation/law by various States/UTs as done by Tamil Nadu to make RWH measures mandatory."
4. On the recommendation of the State of Uttar Pradesh, the Oversight Committee was constituted and submitted the report with the recommendation which are as follows:
15. The Committee has thereafter made following recommendations:-
"VIII. RECOMMENDATIONS BY OVERSIGHT COMMITTEE
1. Hon'ble NGT had asked that Action Plans may be prepared by 31st March, 2020. Uttar Pradesh has so far not prepared its Action Plan despite extension of time by Hon'ble NGT till 31.07.2020. The Oversight Committee was informed by the Commissioner, Rural Development during the review meeting that Action Plan is under preparation. In the State of Uttar Pradesh, water bodies/ponds are looked after by the newly created Department of Namami Gange and rural water supply. In each village, village ponds are maintained by Village Panchayat under the Panchayati Raj Department. The Forest Department also is involved in identification, development and maintenance of wetlands in the State. The construction and repair work on these ponds and water bodies is done under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), which is run by the Rural Development Department. These ponds are filled by Irrigation Department from their canals during summer season. So, it is quite clear that a holistic Action Plan has to be prepared. It has to have components of all these Departments. The Action Plan prepared by the Rural Development Department alone would not suffice. It would be in the fitness of things if the Chief Secretary, UP calls a meeting of all these Departments, asks all of them to survey these water bodies, identify each and every water body in each village, geo-tag it, assign a UID number and then get the Action Plan prepared allocating the role of each Department. This Action Plan should also have a component regarding continuous assessment of water quality of these water bodies to be done by State Pollution Control Board. The action plan also should indicate the prioritization of the work as to which work would be taken at what time; budgetary allocations have to be done and specific time-lines have to be fixed. Only then a meaningful Action Plan would be prepared. The statement of Rural Development Department that so far 2,40,469 water bodies have been restored under MGNREGA is a general 5 statement of works done under the MGNREGA scheme right since its inception rather than the result of a well coordinated action plan based on a state level synchronised geo-tagged survey of all the water bodies. The Chief Secretary may, in compliance of Hon'ble NGT directions, call all these Departments and get the Action Plans prepared on the above lines within the time-lines stipulated by Hon'ble NGT.
2. The Forest Department may be directed to plan out afforestation activities on the banks of these water bodies. This year the Forest Department's target of afforestation for the entire state is planting of 25 crore trees. This afforestation plan on the banks of these water bodies can be taken up as an important component of that programme and targets can be given Panchayat-wise to the respective departments right now so that they can plan all activities over the year in a sustainable manner.
3. The District Magistrates have been directed to take up one pond per village this year. This programme may be included in the District Environment Plan to be monitored by the District Magistrates on a monthly basis. The list of one pond per village may be collected from the districts by the Rural Development Department/Namami Gange Department and it may be made a part of the Action Plan for this year. Funds for the activity may be allocated by budgetary grant from the budget heads of the respective Departments. Alternatively, MGNREGA funds from Rural Development Department may be allowed for conducting these works. Another option is use of devolution funds by the respective Panchayats for maintaining these ponds. Annual District Plan based on this list may be prepared indicating the names of the water bodies to be rejuvenated, the budgetary allocation for each water body and their respective time-lines. These should be monitored on a regular basis by the District Magistrates as part of the District Environment Plan on a monthly basis. Periodical reports of implementation of these Action Plans may be sent at the Headquarters to Chief Secretary through respective Principal Secretaries of various Departments who may further intimate it to Hon'ble NGT.
5. The Committee also recommends that active efforts be made in close coordination with technical bodies to tap excess runoff of rivers/canals during rainfall season to recharge old water bodies and retain water in new ponds to be constructed specifically for the purpose.. Such simple interventions have been taken up in district Mathura, Uttar Pradesh to increase groundwater level and rejuvenate water bodies (refer Annexure VI).The Mathura experiment may be technically vetted by some technical body 6 under the Ministry of Water Resources, Govt of India.
6. Development of Bio Diversity Parks in the vicinity of rivers lead to continuous recharge of aquifers and maintenance of E Flow of the rivers. It has been put to notice that project of Biodiversity parks was submitted to NMCG but could not get approved due to shortage of funds. The Committee recommends re- formulation of project by Forest Department after in-depth analysis of such projects in other states viz. Wetland park in Delhi and taking technical advice from experts.
10. Use of bio-plastics/bio-degradables in every sector viz. domestic and industrial sectors is a viable solution to prevent rivers and water bodies from choking and warding off adverse implications on biodiversity. The State government may develop plans for switching to bio-plastics/bio-degradables at macro level within six months.
13. Restoration of ponds, lakes require involvement from all stakeholders especially local people. Community participation must be encouraged and campaigns be started in areas to restore, conserve water bodies. Ansupa Lake in Odisha has been restored by sincere efforts of Self Help Groups in the area."
16. We find that the steps taken so far can hardly be held to be adequate. As already noted, protection of water bodies serves great public purpose and is essential for protection of the environment. It helps not only aesthetics but also water availability, aquatic life, micro climate, recharge of ground water and maintaining e-flow of the rivers. Under the Public Trust Doctrine, the State has to act as trustee of the water bodies to protect them for the public use and enjoyment for current and future generations. We may note the observations of the Hon'ble Supreme Court on the subject which are as follows:
i. State of T.N. v. Hind Stone, (1981) 2 SCC 205, at page 212:
"6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation."
ii. Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496, at page 500:
"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, 7 mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution."
iii. T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606, at page 628:
"... ... ...
33. ... As was observed by this Court in M.C. Mehta v. Kamal Nath our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership."
iv. Intellectuals Forum v. State of A.P., (2006) 3 SCC 549, at page 574:
"75. In M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388, Kuldip Singh, J., writing for the majority held:
"34. Our legal system ... includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. ... The State as a trustee is under a legal duty to protect the natural resources."
76. The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said:
"Thus, the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust."
This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, 8 and the special, more demanding obligation which it may have as a trustee of certain public resources [Joseph L. Sax "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol. 68, No. 3 (Jan. 1970) pp. 471-566]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine [ibid]:
1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
2. the property may not be sold, even for fair cash equivalent;
3. the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources."
v. Jitendra Singh v. Ministry of Environment & Ors., 2019 SCC Online 1510 pr 20 ".... .... ...
20. .... Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal."
17. In NGT order dated 27.08.2020 in OA 351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors., it was observed:
"... .... ... ...
8. One of the serious challenges is solid and liquid waste management, apart from encroachments. There are binding directions of the Hon'ble Supreme Court in Almitra H. Patel Vs. Union of India & Ors. and Paryavaran Suraksha vs. Union of India on the subject of scientific management of solid waste and sewage/effluents in accordance with the statutory provisions of the Water (Prevention and Control of Pollution) Act, 1974, ('Water Act') Air (Prevention and Control of Pollution) Act, 1981, ('Air Act) and waste management rules framed under the Environment (Protection) Act, 1986 ('EP Act'). There is large scale non- compliance of the said statutory provisions which has led this Tribunal to consider the issue of river pollution in OA No. 673/2018, News item published in "The Hindu"
authored by Shri Jacob Koshy Titled "More river stretches are now critically polluted: CPCB" in view of acknowledged data of 351 polluted river stretches in the country. Apart from the said issue, large scale failure has been found in the matter of solid waste management as repeatedly recorded in O.A. No. 606/2018. The Chief Secretaries of all the States/UTs were required to remain 9 present in person before this Tribunal for interaction and further planning. In O.A. No. 325/2015, Lt. Col. Sarvadaman Singh Oberoi v. UOI & Ors., the Tribunal has considered the issue of restoration of water bodies. In Original Application No. 593/2017, Paryavaran Suraksha Samiti & Anr. v. UOI & Ors., the issue of untreated sewage or effluent being discharged in water bodies have been taken up for consideration. There are several other matters dealing with the such issues, including coastal pollution, pollution of industrial clusters etc.
9. There is discussion in the media about inadequacy of monitoring of action for restoration of lakes, wetlands and ponds which is certainly necessary for strengthening the rule of law and protection of public health and environment. Several directions have been issued by the Hon'ble Supreme Court in M.K. Balakrishnan and Ors. v. UOI & Ors."
18. We also note that the Ministry of Urban Development, Government of India, Central Public Health and Environmental Engineering Organization (CPHEEO) has issued an advisory on "Conservation and Restoration of Water Bodies in Urban Areas" in August, 2013 which need to be followed. The matter was also considered by the Standing Committee on Water Resources (2015-16), Sixteenth Lok Sabha. Its Tenth Report has been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation under the heading "Repair, Renovation and Restoration of Water Bodies-Encroachment on Water Bodies and Steps Required to Remove the Encroachment and Restore the Water Bodies" in August, 2016. Further, the "Guidelines for the Scheme on Repair, Renovation and Restoration (RRR) of Water Bodies under PMKSY (HKKP)" have been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation, Govt. of India in June, 2017. The said report also provides useful material to be looked into by the enforcement agencies.
19. As regards, report of the CPCB on the subject of rain water harvesting, it appears that CPCB has not appreciated the direction of this Tribunal on the subject. While rain water harvesting may be required in all buildings and other places in urban areas, in the present context, the Tribunal has directed setting up of such facilities in sub water sheds along ponds for utilization of surplus rain water for restoration of the ponds which have become dry and for augmenting other ponds.
20. There is, thus, need for continuous planning and monitoring at National, State and District levels. Suggestions and observations of CPCB and the Oversight Committee need to be acted upon.
21. As suggested by the CPCB, a single agency needs to be set up in every State/UTs within one month. This work may either be assigned to the Wetland Authority of the State or the River Rejuvenation Committee or to any other designated authority such as the Secretary, Irrigation and Public Health/Water Resources. It is made clear that if the State Wetland Authority is to be assigned the 10 task of protection of all water bodies, this task will be in addition to the normal functioning of the State Wetland Authority under the Wetland (Conservation and Management) Rules, 2017. Such nodal agency must call a preliminary meeting on the subject with all the District Magistrates on or before 31.01.2021 to take stock of the situation and to plan further steps. Thereafter, a regular meeting may be held for periodic monitoring at the District level as well as the State level with the identified targets of proper and scientific identification and protection of all water bodies, assigning unique identification number, removing encroachments, preventing dumping of waste, maintaining water quality and restoration by taking other appropriate steps, involving the Panchayats and the community, utilizing the financial resources available from different sources. Steps taken need to be documented and compiled and reported to a central authority, preferably the CPCB. This Tribunal has already constituted a CMC to be headed by the Secretary, MoJS with the assistance of CPCB and other authorities to monitor remedial action for 351 polluted river stretches. Restoration of water bodies is also a connected issue which can be monitored by the same Committee atleast thrice a year at the national level.
22. Accordingly, we dispose of this application with following directions:
(i) All States/UTs may forthwith designate a nodal agency for restoration of water bodies, wherever no such agency has so far been so designated.
(ii) Under oversight of the Chief Secretaries of the States/UTs, the designated nodal agency may a. Hold its meeting not later than 31.1.2021 to take stock of the situation and plan further steps, including directions to District authorities for further course of action upto Panchayat levels and to evolve further monitoring mechanism as well as Grievance Redressal Mechanism (GRM).
b. Submit periodical reports to the CPCB/Secretary Jal Shakti, Government of India. First such report may be furnished by 28.02.2021.
(iii) The CMC for monitoring remediation of 351 polluted river stretches, headed by the Secretary, MoJS may monitor the steps for restoration of water bodies by all the States periodically, atleast thrice in a year. First such monitoring may take place by 31.3.2021.
(iv) The CMC may give its action reports to this Tribunal in OA 673/2018 and first such report may be furnished preferably by 30.4.2021 by e-mail.
5. In view of the above, we direct the District Magistrate, Gorakhpur to see the matter personally and ensure that there shall not be any encroachment of ponds, and in case there are encroachments, District 11 Magistrate shall directly or by constituting a competent Committee of the Officers of Revenue Department, identify, demarcate and to protect the pond area/waterbody and to ensure removal of encroachment within a time frame say within six months in accordance with law.
6. With these directions, Original Application stands disposed of.
Sheo Kumar Singh, CP Dr. A. Senthil Vel, EM August 11, 2023 Original Application No. 491/2023 SN 12