National Green Tribunal
News Published In The Newspaper 'The ... vs Before The National Green Tribunal on 15 March, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
ORIGINAL APPLICATION NO. 93/2023
IN THE MATTER OF:
In re: News item published in Newspaper 'The Hindu' dated
04.02.2023 titled "19 families shifted after houses in J & K
village develop cracks"
COUNSELS FOR RESPONDENT(S):
Ms. Palak Mittal, Advocate for UT of Jammu & Kahsmir with
Mr. Vivek Modi, Special Secretary (Technical) Forest, Ecology and
Environment Department (Through VC)
Dr. Harpreet Kaur, Secretary (Technical) (Through VC)
CORAM:
HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
RESERVED ON: FEBRUARY 13, 2024
PRONOUNCED ON: MARCH 15, 2024
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This Original Application (hereinafter referred to as 'OA') was registered under Sections 14 and 15 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act 2010'), taking suo-moto cognizance of a newspaper report published in daily newspaper 'The Hindu' dated 04.02.2023 under the title "19 families shifted after houses in J & K village develop cracks". Report stated that 21 structures developed large cracks due to sinking surface in Doda District of Chenab Valley in State of 1 Kashmir, situated on the slopes with the Chenab River nearby. There were around 50 residential structures. Many houses developed cracks and got damaged. First such case was reported in December 2023. The local people complained that one side of slope is slipping. This resulted in evacuation from twenty one houses, one masjid and one madras. The area was put on Red alert as informed by Sub-Divisional Magistrate, Thathri, District Doda. Several families were shifted to Government Higher Secondary School for Boys' in Doda. Locals also informed that it is for the first time that the area has witnessed damage to houses due to slipping earth. Most of the affected houses have become unlivable due to wise cracks, weakening the structure. Six structures had developed major cracks. The newspaper also referred to a statement of Union Minister and Member of Parliament Mr. Jitendra Singh that a Geological Survey of India team was already on its way to the affected spot to study the underlying causative factors and short and long term remedial measures, as required, shall be taken.
2. Noticing that the above report discloses a very serious ecological disturbance calling for stringent, preventive and remedial measures inter- alia to regulate location and nature of constructions in the interest of safety of inhabitants, Tribunal referred to its earlier order dated 31.01.2023 passed in OA 51/2023, In re : News item published in The Tribune dated 16.01.2023 titled "Joshimath disaster a warning for Mussoorie", wherein a Joint Committee headed by Chief Secretary and other expert members was constituted to conduct study of capacity of eco- sensitive areas in Himalayan regions in holistic manner, particularly, in respect of Mussoorie where similar cracks were developed and noticed. Joint Committee was directed to conduct study as to how much construction can be allowed and with what safeguards and what preventive 2 measures be taken for existing buildings and all other relevant and associated aspects including vehicular traffic, sanitation management, maintaining ecological integrity in terms of soil stability and flora-fauna. Acting on the same line, Tribunal constituted a Joint Committee to be presided by Chief Secretary, J&K and other members comprising Wadia Institute of Himalayan Geology Dehradun, Govind Ballabh Pant National Institute of Himalaya and Environment, National Institute of Hydrology (NIH), Roorkee, Prof. J.S Rawat, Kumaon University, Almora, Space Application Centre, Ahmedabad, National Institute of Rock Mechanics, Bangalore, Central Pollution Control Board (hereinafter referred to as 'CPCB') and ACS Environment, J&K. Tribunal observed that Committee may suggest remedial measures to prevent environmental damage in the light of carrying capacity, hydro-geology studies, geo-morphological studies and also covering other allied and incidental issues. Committee was also given liberty to take assistance from any other expert/institution. Compliance Report dated 24.05.2023:
3. Pursuant to above order dated 17.02.2023, a Compliance Report dated 24.05.2023 was filed by Principal Secretary, Government of J&K, Department of Forest, Ecology and Environment. It is said that pursuant to Tribunal's order dated 17.02.2023, Government of J&K constituted a Committee comprising the following:
1 Chief Secretary, J&K Chairman 2 Principal Secretary to Government, Forest, Member-
Ecology & Environment Department, Govt. Convenor of J&K (Nodal agency for coordination & compliance) 3 Prof. J. S. Rawat, Kumaon University, Member Almora 4 Representative of Wadia Institute of Member Himalayan Member, Dehradun 3 5 Representative of Govind Ballabh Pant Member National Member Institute of Himalaya and Environment 6 Representative of National Institute of Member Hydrology, Roorkee 7 Representative of Space Application Member Centre, Ahmadabad 8 Representative of National Institute of Member Rock Mechanics, Bangalore 9 Representative of Central Pollution Control Member Board
4. The observations, recommendations and suggestions, contained in the Report are as under:
"Observations of the committee along with the recommendations are elaborated below:
1.1 Doda District and the Affected Area of Thathri Doda district located in the eastern part of the Jammu region in the Union territory of Jammu & Kashmir, is comprised of 16 Tehsils. The district is bounded by Kishtwar to the northeast, Kathua to the south, Ramban to the northwest, Udhampur to the southwest, and Anantnag to the north. The total geographical area of the district is 2306 sq. km, and the administrative center of the district is situated in Doda, which is approximately 160 km away from Jammu. Due to its distinctive geo climatic conditions, Doda has historically been susceptible to natural disasters such as floods, droughts, landslides, and earthquakes, as indicated by the disaster matrix presented in Table 1. Throughout history, Doda District has experienced a number of disasters, one of the most recent being the 2017 cloudburst in Tehsil Thathri.
Table 1: Recorded incidents of disasters within District Doda.
Type of Month / Affected Area Details of damages
Disaster Year caused
Structures
Death Injury Damaged
Earthquake May, 2013 Entire district - 70074
Thathri &
Cloudburst Apr, 2014 06 01 09
Kahara
Flood/Rain Sep, 2014 Entire district 01 05 1304
4
Feb, March,
Flood/Rain Entire district 07 09 1706
April 2015
Cloudburst April, 2015 Bhagwah 06 - 01
Cloudburst Jul, 2017 Thathri 06 02 09
(Source: District Disaster Management Plant (DDMP), Doda, Rather A. H., 2018) According to Ansari et al (2022, https://doi.org/10.1007/s40098-022-00694-0.), Doda, Udhampur, Ramban and Reasi within Jammu Region are more vulnerable to earthquakes because of the centrally positioned Main Central Thrust and Udhampur Fault in the Region. Other high-risk locations include the northern outskirts of Doda and Kishtwar and the north-western part of Jammu, where mild earthquakes of magnitude Mw ≥ 5.0 have been detected regularly in Kishtwar Window and Main Frontal Thrust. The affected area of Thathri falls in Survey of India Topo sheet number 430/16, and the geographical coordinates are 33° 08' 45.21" N, 75° 47' 3.12" E with elevation of approx. 997 m. The Nai Basti, Thathri area, is situated on the left bank of the Chenab River just above the NH244 and below a village road (Figure 1), and has a general slope of 65-70°. Figure omitted.
1.2 InSAR analysis of Thatri Area, Doda District, J & K An InSAR (Interferometric Synthetic Aperture Radar) based survey was conducted to understand the evolution of land deformation at Thathri and surrounding regions. The objectives of the analysis were to examine evolution of land displacement since January 2023. Time- series data sets from Sentinel-1 (January 2023-April 2023) satellites were processed using Small Baseline Subset Interferometry (SBAS) technique to map the surface deformation.
Interferograms were corrected for topographic and phase unwrapping errors for obtaining reliable deformation time-series. Finally, areas having coherence < 0.4 were masked to further reduce noise due to land surface changes. Map showing surface deformation along the line of sight of the satellite during 2023-01-06 and 2023-04-26 is shown in Figure 2. InSAR analysis did not show any surface deformation associated with the ground cracks / rock slides in the study region.
Figure omitted.
2. General observations of the affected area by the Expert 5 Committee The committee conducted a detailed field survey of the affected area of Nai Basti, Thathri, Doda District, Jammu and Kashmir during 08- 09 May, 2023 accompanied by the Sub-divisional Magistrate (SDM) Thathri and the Conservator of Forests, Chenab Circle with their respective teams. The specific observations of the committee are as follows:
The affected settlement at Nai Basti, Thathri (24 affected houses/structures) was established majorly on Shamlat land (i.e. village pasture land), prior to 2014 when Thathri became a municipality, as informed by SDM Thathri. As such, there were no extant construction by-laws applicable and no retaining wall with weep holes, or planned drainage or sewage disposal structures were observed in the affected area, except unplanned PVC pipes for the purpose of sewerage disposal to the road side drainage downslope. As per local officials, soil bearing capacity assessment, other feasibility studies, etc. also would not have been carried out prior to the construction of these structures.
The physical inspection of cracks by the committee at various locations within the affected area revealed horizontal, lateral and vertical displacements with maximum value of cracks more than 50 cm. The total affected area is noted to be approximately 8000 m2.
Figure omitted.
The SDM Thathri and local residents informed the committee that the incident initiated on 1st February, 2023 and continued till 5th February, 2023. No new cracks are reported from 6th February, 2023 onward. The total number of structures affected is 24 including 3 completely damaged structures, 11 having major cracks and 10 having minor cracks.
The slope of the affected area is towards north and approximately 65-70°. The affected area is pre-dominantly on schist bedrock overlain by thin layer of soil. The layer of the river born material exposed towards the crown of the landslide is not much affected by the landslide as only small cracks and subsidence are observed on the road (Figure 4). The Chenab River valley between Lalhote and New Thatri is made up mainly of slate, phyllite, schist, marble and orthogneiss. The landslide affected slope at New Thatri is made up mainly of weathered schist intervened by un-weathered schist in between. The foliation 6 dips moderately towards the south. The bedrock is traversed by two important joint sets forming wedges towards the daylight slope (Figure 4). The bedrock data from the immediate adjoining slope is also made up of highly weathered schist that dips moderately to gently towards the south with wide open fractures. The slope dips steeply towards the north. The Quaternary deposits and morphology of the Chenab River valley suggest that the valley is susceptible to landslides. Observation of landslide and lacustrine deposits in the slopes a height of about 200 m from the present river bed suggest that the Chenab River was blocked by landslides from time to time. The south facing slope that is the right bank slope of the Chenab River is more susceptible to landslides as number of old and active landslides are observed. Steep slopes are observed on both sides of the river valley the south facing slope being steeper than the north facing. Geological traverses were carried out along the road sections of the Nai Basti Thathri area. The main rock types are schists and gneisses (Figure 5 c&b) of Salkhala Formation belonging to Proterozoic age. The exposed rocks are slightly to moderately weathered in nature as per ISRM 1978. The details of the discontinuities are given in Table 2 and 3.
Figure omitted Table 2: Discontinuities observed in the exposed schistose rock at the NH-244 Joint Dip Spacing Persistence Roughness* Aperture Infilling WG* Ground Remark Set direction (cm) (m) Water /Dip (mm) Amount Foliati N140° /50° 40-100 5-15 S/U Tight-2 None WI-III Dry Foliation on joint Jl N050°/40° 10-30 5-10 S/U Tight-2 None WI-III Dry Critical joint J2 230°/60- 10-20 >10 S/U 1-3 None WI-III Dry Prominent 65° joint J3 N340°/40° - 2-5 S/U 1-3 None WI-III Dry Random joint S/U* Smooth undulating, WG* Weathering grades Dip direction/ Spacing Persistence Ground Joint set Roughness* Aperture Infilling WG Remark Dip Amount (cm) (m) water Foliation N160° /50° 8-20 5-15 R/U Tight None WI-Ill Dry Foliation joint JI N 150°/90° 10-30 5-15 R/U Tight None W-I Dry Prominen t joint R/U* Rough undulating, WG* Weathering grades 7 The committee further noted that the affected area did not have any ground water springs/streams, and no ground water bore-well.
The committee further examined the report produced by GSI, GoI, wherein the total rainfall was reported to be 201.2 mm during 20 th January to 31st January, 2023. This heavy rainfall spell might have resulted saturation of the soil/rocks which might have triggered slides.
Minor cracks were observed by the committee on the road above the affected area, and in the adjoining structures.
3. Recommendations by the Expert Committee No further civil construction within the affected area of Nai Basti may be allowed. In view of the coming monsoon season, the affected area needs to be under observation of district administration. In case of any new sign of major cracks in houses outside the affected area, residents to be evacuated immediately. Moreover, as a precautionary measure, people living in houses outside the affected area and adjoining houses/structures not yet affected may also be asked to relocate to a safer place.
A retention wall of around 400 m with weep holes may be constructed near the base of the land slide area (at the toe of the slope) at the road level to stop any further slope failure. All cracks to be filled up with the cement slurry well before the onset of monsoon to control the percolation of rain water/surface water and to monitor any further displacements. The natural diversion and drainage channels within the area may be restored or renovated immediately so that the surface run-off could be diverted. Proper drainage and sewer plan for the entire area to be developed and implemented. Any further construction outside of the affected area only to be allowed after geotechnical assessments such as soil bearing tests, etc. Since the affected area is situated just above the Chenab river channel, to stop the river erosion, Gabion Wall with a suitable dimension may be constructed on the riverside.
The area lacks high resolution geotagged data of natural and man- made resources. Hence, a "geo-portal" containing the data/information of all the concerned departments/research institutions/agencies in one common platform may be developed (at 1:10,000 scale) by the district GIS cell in collaboration with Department of RS & GIS, Jammu University or such other agencies for better planning, management and regular monitoring. 8
Geomorphic map which could depict the spatial distribution landforms such as colluvial cones, colluvial fans, alluvial terraces, colluvial fans underlained by alluvial terraces, etc. composed of Quaternary deposits i.e., colluvium and alluvium is to be developed for the area under reference at 1:10000 scale for sustainable planning and development of all civil engineering works, their regular monitoring and management. Detailed Landslide Hazard Zonation of the entire new Thathri town is to be carried out, preferably by Geological Survey of India, in view of similar type of geological and geomorphologic setup in the Thathri area.
No subsurface engineering activity may be allowed within an area circumscribing 500 m of the affected location. The present residents of the affected 24 houses of Nai Basti Thathri may be rehabilitated to a suitable safer location within the framework of applicable laws.
4. Suggestion by the Expert Committee In steep mountainous terrain, geo-morphologically a hill spur has three components: crest, mid crest and foot slope. All these three components have distinct hydro-geomorphic processes and landforms. The area under reference lies on foot slope of Thathri hills spur. Figure 6 depicts the hydro-geomorphic cross-section of the foot slope zone of the Thathri hill spur which depicts: i) rain water recharge zone made-up of Quaternary landforms, i.e., colluvial fan underlained by the Chenab river terraces having very high infiltration capacity; and ii) sub-surface flow paths of infiltrated water causing earth creeping due to steadily increasing pore water pressure during rain resulting in development of multiple cracks, sinking of land, landslides and rock falls causing damages to buildings and roads constructed on this highly ill-suited site (may be due to ignorance of the local people and government also). It is suggested that for the sustenance of the environment, the Thathri type foot slope zones (Figure 6) of hill spurs in the entire District Doda should be mapped using geospatial technologies at 1:10,000 scale by which such ill-suited sites may avoided for civil engineering works in future."
5. The said Report of Committee was finalized in the meeting held on 22.05.2023 under Chairmanship of Chief Secretary on which date after deliberation for implementation of recommendations and suggestions made by Committee, following decisions were taken: 9
"a. No further constructions within the affected area of Nai Basti may be allowed.
b. The recommendations of the committee may be conveyed to the local population for a stake-holder consultation by the District Administration within 15 days, so that further action on the recommendations of the committee could be taken.
c. Draft report was agreed in principle to be submitted to the Hon'ble Tribunal."
6. Report was considered by Tribunal on 25.05.2023. It was observed that the authorities are in the process of consulting stakeholders including local population for taking further action pursuant to Report. Since deliberation was under process, Tribunal granted time to the authorities to finalize the matter, prepare a plan for implementation of the recommendations made by Joint Committee and submit to Tribunal. Tribunal also said that Chief Secretary may set up a Special Task Force of the concerned Heads of Departments to finalize modalities of execution and the Action Plan may have short and long-term executable action points; and, technical assistance may be taken from any of the Member/Institution as per the Committee constituted as well as from any other Institution. It was also observed that if entire report, after hearing the stake holders is accepted, it shall be placed or any other action is proposed, the Action Taken Report shall be submitted before Tribunal. Action Taken Report dated 01.11.2023:
7. Thereafter, a further Action Taken Report dated 01.11.2023 was filed by Principal Secretary, Department of Forest, Ecology and Environment Government of J&K, wherein it was said that Deputy Commissioner, District Doda was required to submit a prospective action plan after undertaking exercise of stakeholders' consultation and preparation of an Action Plan, based on consultation and recommendations of experts. On 10 11.09.2023, Deputy Commissioner, District Doda submitted a file stating that a meeting of officers from PWD, Municipality Thathri and Sub- Divisional Magistrate Thathri was held in his office and after threadbare discussion, it was decided that estimates for slope stabilization, construction of drainage and other things like allotment of land shall be submitted by Superintending Engineer, PWD and SDM Thathri. A detailed project report for construction of drainage system, slope stabilization and protection work at the site of incident was submitted by Superintending Engineer, PWD. In regard to allotment of land for construction of houses by the affected person, Deputy Commissioner said that once Government takes a decision in this regard, only then the matter can be proceeded and relief cases along with demand of affected people were forwarded to Divisional Commissioner, Jammu for guidance. However, no action plan was submitted by Deputy Commissioner. After various correspondence and deliberations, certain decisions were taken as under:
"(a) Proper drainage and sewer plan for the entire area to be developed and implemented.
Decision: Detailed Project Report to the tune of Rs. 37.64 lakhs for construction of Sewerage Disposal line of 2000 mtr prepared by the PWD (R&B) Department was agreed to be executed by the District Administration from funds out of its own resources, including the District Plan.
(b)(i) Development of a "geo-portal" containing the data/information of all the concerned departments/research institutions/agencies in one common platform to be developed (at 1:10,000 scale) by the district GIS cell in collaboration with Department of RS & GIS, Jammu University.
(b)(ii) Geomorphic map which could depict the spatial distribution landforms such as colluvial cones, colluvial fans, alluvial terraces, colluvial fans underlained by alluvial terraces etc. to be developed for the area at 1:10,000 scale for sustainable planning and development of all civil engineering works, their regular monitoring and management.
11
(b)(iii) Detailed Landslide Hazard Zonation++- of the area to be carried out, in association with Geological Survey of India.
(b)(iv) Mapping of Thathri type foot slope zones of hill spurs in the entire District Doda using geospatial technologies at 1:10,000 scale by which such ill-suited sites may be avoided for civil engineering works in future.
Decision: District Administration was given a go-ahead for all the above proposals, in association with University of Jammu, Geological Survey of India, Department of Geology & Mining etc., as per requirement.
(c)(i) Detailed Project Report amounting to Rs. 548.98 lakhs for construction of retention wall of around 400 m with weep holes has been prepared by the PWD (R&B) Department to stop further slope failure.
(c)(ii) To stop river erosion, Detailed Project Report amounting to Rs. 597.71 lakhs for construction of 402 m Gabion structure and river training works by way of removal of silt deposition from right bank of river Chenab has been prepared by the PWD (R&B) Department.
(c)(iii) Detailed Project Report for construction of Drain with Breast wall amounting to Rs. 32.21 lakhs has been prepared by the PWD (R&B) Department.
Decision. The detailed proposals for these engineering works shall be referred to the expert members of the Joint Committee, who may examine the same and offer their technical inputs on the sufficiency or otherwise of the proposals to offer protection to the area, within 15 days. The works may thereafter be executed, after reducing the cost estimates, if it is felt that the same shall be adequate and sufficient to prevent any further damage or untoward incident.
(d) It was proposed that out of an initially reported 19 cases, after verification, 14 cases have been found eligible for relief. However, none of the house owners are found to be owners of the land on which the houses have been built, the land being either Shamlat Deh or Kacharaie land. Since the occupants are illegal, they do not fall under SDRF norms for payment of relief or compensation. Further, in five cases, the occupants are landless and do not possess land elsewhere. Decision. Alternate land may be provided to the five cases of landless persons, as per policy under PMAY(G)."
12
8. With regard to rehabilitation, Report said that the matter was discussed in detail. Administration informed that affected persons were immediately shifted to safer buildings upon receipt of reports of damage to houses. Later on, they were shifted to their own villages or houses of relatives/friends. Deputy Commissioner also informed that three structures completely got damaged and 11 got severely damaged. District Administration had kept the houses under observation to note any expansion in cracks or any other subsequent change. Out of initially reported 19 cases, after verification, 14 cases were found eligible for relief. However, none of the house owners were found to be owner of the land on which the houses were built, the land being either Shamlat Deh or Kacharaie land; since occupants were possessing land illegally, they did not answer SDRF norms for payment of relief or compensation; further, in five cases, occupants were landless and did not possess land elsewhere; it was decided that alternate land may be provided to five cases of landless persons, as per policy under Prime Minister Awaas Yojna (Gramin).
9. The decision taken in the meeting was communicated to concerned Administrative Secretaries and Deputy Commissioner, Doda for necessary action vide department's letter dated 01.11.2023. Report also said that Expert Members of Joint Committee were requested by letter dated 01.11.2023 that detailed proposals referred in action plan submitted by Deputy Commissioner, Doda regarding construction of retention wall of around 400 m with weep holes (DPR amounting to Rs. 548.98 lakhs), drains with breast wall (DPR amounting to Rs.32.21 lakhs) and Gabion structure of 402 m and river training works by way of removal of silt deposition from right bank of river Chenab (DPR amounting to Rs. 597.71 lakhs) be examined and technical inputs on sufficiency or otherwise of the 13 proposals to offer protection to the area may be provided in 15 days. The report also included long term and short term measures on 12 action points in the form of a chart as under:
S Action Point Action taken Action by Estimated Proposed Long N (Recommendations (Department) Cost source Term/ of Joint Committee) (in lacs) of Short funding Term 1 No further civil The Nal Basti area District - - Long construction within falls within the Administr term the affected area of Municipal limits of ation/ Nai Basti may be Thathri. In this Urban allowed. In view of regard, the Local the coming Executive Bodies monsoon season, Officer MC Thathri the affected area has been needs to be under directed to ensure observation of that no new district construction should administration. In be allowed in and case of any new around the affected sign of major area of Nai Basti cracks in houses Thathri.
outside the affected The Tehsildar
area, residents to be Thathri and
evacuated Executive Officer
immediately. MC Thathri have
Moreover, as a also been directed
precautionary to keep the affected
measure, people area and its
living in houses surrounding under
outside the affected strict vigil and in
area and adjoining case any new sign
houses/structures of major cracks are
not yet affected may observed, District
also be asked to Administration
relocate to a safer Doda should be
place. informed
immediately, so
that the necessary
measures/steps
can be taken for
evacuating the
families residing in
the adjoining areas
to a safer place.
The families
residing at Nai
Basti outside the
affected area have
also been directed
to remain vigilant
and shift to any
other safer place.
2 A retention wall of Detailed Project PWD 548.9 - Long
14
around 400 m with Report for (R&B) 8 Term
weep holes may be construction of Departme
constructed near retention wall has nt
the base of the land been prepared by
slide area (at the toe the PWD (R&B)
of the slope) at the Department
road level to stop
any further slope
failure.
3 All cracks to be Detailed Project PWD 32.21 - Long
filled up with the Report for (R&B) Term
cement slurry well construction of Departme
before the onset of Drain with Breast nt
monsoon to control wall has also been
the percolation of prepared by the
rain water/surface PWD (R&B)
water and to Department
monitor any
further
displacements.
4 The natural Detailed Project PWD 37.64 - Long
diversion and Report for (R&B) Term
drainage channels construction of Departme
within Sewerage Disposal nt
The area may be line of 2000 mtr has
restored or been prepared by
renovated the PWD (R&B)
immediately so that Department
the surface run-off
could be diverted.
Proper drainage
and sewer plan for
the entire area to be
developed and
implemented.
5 Any further Detailed Project PWD 597.7 - Long
construction outside Report for (R&B) 1 Term
of the affected area construction of 402 Departme
only to be allowed mtr Gabion nt
after geotechnical structure and river
assessments such training works by
as soil bearing tests way of removal of
etc. Since the silt deposition from
affected area is right bank of river
situated just above Chenab has been
chenab river prepared by the
channel, to stop the PWD (R&B)
river erosion, Department
Gabion Wall with a
suitable dimension
may be constructed
on the riverside.
6 The area lacks high The matter District - - Short
resolution regarding Administr Term
15
geotagged data of development of a ation
natural and "Geo Portal" has
manmade been taken up with
resources. Hence, a the Department of
"geo- portal" RS & GIS, Jammu
containing the University
data/ information of
all the
concerned
departments/
research
institutions/
agencies in one
common platform
may be developed
(at 1:10,000 scale)
by the district GIS
cell in collaboration
with Department of
RS & GIS, Jammu
University or such
other agencies for
better planning,
management and
regular monitoring.
7 Geomorphic map The matter has been Geology - - Short
which could depict taken up with the and Term
the spatial Remote Sensing & Mining
distribution GIS Department, Doda
landforms such as and Mining
colluvial cones, Department Doda
underlained by for preparation of
alluvial terraces etc. Geomorphic map of
composed of the affected area
Quaternary and other
deposits i.e., vulnerable sites in
colluvium and the District
alluvium is to be
developed for the
area under
reference at
1:10000 scale for
sustainable
planning and
development of all
civil engineering
works, their regular
monitoring and
management.
8 Detailed Landslide The matter has been District - - Short
Hazard Zonation++- taken up with the Administration Term
of the entire new Geological Survey of
Thathri town is to be India for Detailed
carried out, landslide Hazard
preferably by Zonation of the
Geological Survey of entire area.
16
India, in view of
similar type of
geological and
geomorphologic
setup in the Thathri
area.
9 No subsurface All the Executing All - - Long
engineering activity agencies have been Executing Term
may be allowed directed to avoid Agencies
within an area any engineering
circumscribing 500 activity within an
m of the affected area circumscribing
location 500 m of the
affected area of Nai
Basti Thathri.
10 The present All the affected District - - Long
residents of the families were Administration Term
affected 24 houses shifted to nearby
of Nai Basti Thathri Govt. buildings
may be Including Schools.
rehabilitated to a At present most of
suitable safer the affected families
location within the have shifted to their
framework of native villages and
applicable laws. some are
temporarily residing
with their relatives.
Further the matter
regarding providing
of alternate land to
the affected families
has been taken up
with the higher
authorities.
11 The Expert The matter District - - Short
Committee also regarding mapping Administration Term
suggested that for of foot slope zones
the sustenance of of hill spurs using
the environment, Geospatial
the Thathri type foot technologies in the
slope zones of hill entire District Doda
spurs in the entire has been taken up
District Doda should with the concerned
be mapped using agencies and all the
geospatial Executing agencies
technologies at have been directed
1:10,000 scale by to avoid any civil
which such ill- engineering activity
suited sites may be in and around the
avoided for civil affected area
engineering works
in future.
12 Any other action The affected District - - Short
proposed by District families may be Administration Term
17
Administration provided relief for
their damaged
structures
irrespective of title
of the land. The
matter for providing
of relief under SDRF
for affected
structures has
already been taken
up with the Govt.
10. Tribunal considered above Report on 02.11.2023. It was noticed that on the issue of rehabilitation, report was not clear. Though 14 cases were found eligible for relief but it is said that they did not answer SDRF norms without placing on record the alleged SDRF norms and it was also not shown that SDRF norms are attracted in this case. Tribunal enquired as to how these norms will be applicable to the cases in hand but got no reply hence directed State to file a fresh report with all supporting material in this regard.
Compliance Report/Action Taken Report dated 08.12.2023:
11. Consequently, a Compliance Report/Action Taken Report dated 08.12.2023 has been filed by Special Secretary (Technical), Department of Forest, Ecology and Environment Government of J&K. It gives details of action taken as under:
"4. That Deputy Commissioner, Doda vide reference No. DCD/R/2023/931-32 dated 08.12.2023 (copy of the letter attached as Annexure-C) has submitted action taken report as under: -
a) The affected families whose houses were damaged severely/ fully/ partially, were immediately shifted to nearby Govt. School building and Prefabricated shed. The Relief materials were also provided among the affected families as immediate assistance by the District Administration in addition the Meals were also provided to the affected families till they have shifted their native 18 places/ made some alternative arrangements. The details of the immediate assistance provided are as under:
1. Blankets = 100 nos.
2. Kitchen Sets = 20 nos.
3. Bucket = 20 nos.
4. Mug = 20 nos.
b) As per the report submitted by the Revenue functionaries regarding the damages at Nai Basti Thathri, 24 structures were affected, out of which 03 were fully damaged, 11 severely damaged and remaining 10 structures had minor damage. The details of affected structures as well as the landless families are as under:
S Name of Residential No of Occupa Type of Remarks N Head of Address family tion land Family with memb and (or) parentage ers structure 1 Sh. Riaz Ahmed Joura Kalan 06 Govt. Residential Fully S/o Sh. Ghulam A/P Thathri employee House damaged Hassan Shah single structure story (No entry of land in the revenue record).
2 Sh. Tariq Malhota Tehsil 05 Govt. Kahchari Fully Hussain S/o Sh. Bhella A/P employee Land damaged Qutab Din Thathri Residential structure House 02 story (Pacca) 3 Sh. Noor Thathri 06 J&K Shamlat Fully Mohd S/o Police Deh damaged Noor Ali Residential structure House 03 story (Pacca) 4 Sh. Shandin S/o Chomoti Tehsil 05 Labourer Shamlat Severely Hazoor Din Drab Shalla Deh damaged A/P Thathri Residential structure House 04 story (Pacca) 5 Sh. Abdul Wahid Chamoti Tehsil 07 Labourer Shamlat Severely S/o Hazoor Din Drab Shalla Deh damaged A/P Thathri Residential structure House 03 storey (Pacca) 6 Sh. Abdul Kabir Chomoti Tehsil 07 Labourer Shamlat Severely S/o Sh. Hazoor Drab Shalla Deh damaged Din A/P Thathri Residential structure 19 House 02 storey (Pacca) 7 Sh. Mohd Irfan Sunarthawa 02 Labourer Kahchari Severely S/o Sh. Mohd Tehsil Chiralla Land damaged Ayoub A/P Thathri Residential structure House 01 storey (Pacca) 8 Sh. Shafqat Sunarthawa 05 Labourer Kahchari Severely Hussasin S/o Tehsil Chiralla Land damaged Sh. Mohd Ayoub A/P Thathri Residential structure House 01 storey (Pacca) 9 Sh. Mohd Ayoub Joura Khurad 0 Govt. Shamlat Severely S/o Sh. Gander Tehsil Kahara Service Deh damaged Khan (Sports structure Club Pacca) 10 Usmania U sman N/A N/A 02 Storey Severely Masjid Mohalla Nai (Pacca) (Not damaged Sharief Basti entered in structure Thathri the revenue record) 11 Sh. Ali Mohd Thathri 12 Casual Kahchari Severely S/o Sh. Abdul Labour Land damaged Rashied in Residential structure Shrine House 02 / Board storey landless (Pacca) 12 Sh. Shams Din Thathri 04 Labourer Kahchari Severely S/o Sh. Ab. Land damaged Rashied Residential structure House 02 / storey landless (Kacha) 13 Sh. Mohd Iqbal Thathri 04 J&K Kahchari Severely S/o Sh. Abdul Police Land damaged Rashied Residential structure House 03 / storey landless (Pacca) 14 Sh. Mohd Imran Thathri 03 Labourer Kahchari Severely S/o Sh. Ali Mohd Land damaged Residential structure House 01 / storey landless (Kacha) 15 Sh. Jamsheed Thathri 04 Labourer Kahchari Partially S/o Sh. Ghulam Land damaged Qadir Residential structure House 02 / storey landless (Pacca) 16 Sh. Nazir Thathri 04 SPO Kahchari Partially Ahmed S/o Sh. Land damaged Abdul Rashied Residential structure House 03 / storey landless 20 (Pacca) 17 Sh. Abdul Indralla A/P 05 Labourer Shamlat Partially Farooq S/o Thathri Deh damaged Sh.Abdul Residential structure Subhan House 01 storey (Pacca) 18 Sh. Mohd Ashraf Darai Tehsil 06 Defence Shamlat Partially S/0 Sh. Nazir Gandoh A/P Service Deh damaged Ahmed Thathri Residential structure House 02 storey (Pacca) 19 Sh. Mohd Irfan Joura Kalan 08 Ex- Shamlat Partially S/O Sh. Bashir Tehsil Kahara Servicem Deh damaged Ahmed A/P Thathri an Residential structure House 03 storey (Pacca) 20 Javed Ahmed Joura Khurd N/A Govt. No Damage Red S/O Gandera Tehsil Kahara Employee Zone/ Khan A/P Thathri Danger Zone 21 Mansoor Ahmed RIO Amrit N/A Govt. No Damage Red S/0 Ghulam Garh Tehsil Employee Zone/ Nabi Chiralla A/P Danger Thathri Zone 22 Riyaz Ahmed Thathri N/A Ex- No Damage Red S/O Bashir Servicem Zone/ Ahmed an Danger Zone 23 Mohd Sharief Gosti Tehsil N/A - No Damage Red S/O Shamas Chiralla A/P Zone/ Din Thathri Danger Zone 24 Madrassa Thathri N/A - No Damage Red Girls Zone/ Danger Zone
c) As reported by Sub Divisional Magistrate Thathri there are 06 families, who were found to be landless. Alternate State land to the quantum of 05 marlas each has been allotted in favour of all these 06 landless families under prevalent PMAY(G) norms.
d) In addition to the immediate relief as mentioned above which include boarding/lodging and all necessary relief like food,. blankets, etc till the time they shifted to their relative's places on voluntary basis, relief amount as admissible under SDRF norms for various categories viz, Fully damaged, Severely damaged and Partially damaged (Kacha and Pacca) has been sanctioned for 19 cases that fell within the preview of SDRF and is under disbursement at present."
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12. This Report was considered by Tribunal on 11.12.2023. It was observed that occupation of land in question and raising of construction by affected persons was due to inaction, inefficiency or lack of monitoring or supervision on the part of the authorities. Stakes were allowed to be created due to failure on the part of UT and its authorities in observance of its duties and responsibilities and stakes have been allowed to be created on the land in question for the reasons attributable to State's inaction. Hence, Union Territory and its authorities cannot be absolved of their responsibility of compensating the people who have suffered loss or damages at the land in question for the reasons, not attributable to these persons, but man-made situations which also have arisen due to inaction on the part of the authorities of the State. Prima-facie, it was observed that State is liable to pay compensation, to the extent, damage has been suffered by the people in raising structures on the land in dispute. Committee headed by Chief Secretary, therefore, was permitted to re-look into the matter and take appropriate decision, founded on welfare and humanitarian ground and submit its report.
Action Taken Report dated 12.02.2024:
13. Pursuant thereto, a further Action Taken Report dated 12.02.2024 has been filed by Special Secretary (Technical), Department of Forest, Ecology and Environment Government of J&K. It is said that a meeting was held under the Chairmanship of Chief Secretary on 08.01.2024 and following decisions were taken:
"1. The inputs dated 07.12.2023 received from Expert Members will be referred to Public Works (R&B) Department for necessary action.
2. It was decided that a meeting of the Joint Committee constituted by the National Green Tribunal in the matter will be convened to discuss the true regarding rehabilitation raised in the Orders of 22 Hon'ble National Green Tribunal in the orders dated 02.11.2023 and 11.12.2023."
14. Further a meeting of Joint Committee under chairmanship of Chief Secretary was held on 08.02.2024 and relevant extract of the minutes of the meeting contained in annexure-C of the Report dated 12.02.2024 reads as under:
"9. The members of the Committee were of the view that the spirit of the orders of the Hon'ble Tribunal should be respected. The Members felt that the matter was of a nature where it should be handled with sensitivity as well as with accountability. The members discussed various connected issues like:
The title of the land over which these structures were constructed, and norms municipal compliances/followed in their construction.
Whether mishap could be said to be totally a manmade disaster.
Whether the damages could be said to be not at all attributable to the actions of the owners?
Compensation payable in similar cases, for compulsory acquisition, under the provisions of Land Acquisition Act;
Is there any provision for compensating such cases in J&K/ Govt. of India/other states and UTs.
If compensation/relief is required to be paid, what should be the scale/norms?
Can encroachments/ illegal occupation be liable for compensation, if affected by disaster.
Can funds from the public exchequer be utilized for compensating such damage or should the officers/officials who have let the situation arise be made liable.
Doesn't this become a precedent in all such cases of illegal encroachments, across the UT and the country?
10. The above issues were deliberated in detail and following facts were noted/observations made:
a) The structures have been made on Kahcharai/State land and in violation of municipal norms. The structures are per se illegal.23
b) These have been done with full knowledge and connivance of the private owners and public servants, mandated with the responsibility of ensuring rule of law.
Therefore, neither the private owners nor the concerned public servants, absolve themselves of the responsibility; Therefore, it perhaps cannot be said that the damages are not at all attributable to the actions of the owners.
c) The damages were a result of the landslide/soil slippage. This was because of the poor land stability and lack of proper drainage. Therefore, the mishap was a result of combination of both - manmade as well as natural factors.
d) No compensation is payable even in cases where such illegal structure are compulsorily acquired under the Land Acquisition Act.
e) The meeting was informed that relief as per the SDRF norms has been provided. Land under PMAY(G) norms has also been provided to the landless, as per norms. The meeting was informed that there is no policy/norm under which the damages to illegal structures could be compensated. The members were not aware if any such provision existed in any other State or UT. The possibility appeared remote because even the norms of Land Acquisition Act do not provide such compensation.
f) The members were also of the view that there are a number of such vulnerable areas of state land which have been encroached over the past years and constructions raised illegally by occupants not only in this affected area but also throughout the UT of J&K and even other Himalayan States. The other Expert Members were also of the view that proper arrangements are required to be made to deal with the issue of illegal occupation and due consideration should be given to the fact that actions taken in the current case may lead to a situation where a precedence is set for future incidents. Dr. Jose also pointed out that illegal occupation are an issue in the flood plains of major rivers also. The Expert Members also noted that the manner in which such cases are dealt with by other Himalayan States like Uttarakhand and Himachal Pradesh may also be studied as those States are also prone to such incidents.
g) The Chief Secretary, J&K observed that the damage occurring at such a site is to be compensated then the manner in which the damage is assessed must be established for all cases uniformly. The scale and norms for the compensation would need to be defined.
h) The participating officers as well as the Expert Members felt that if payment of compensation is considered in this case, then there is a possibility that it may become a precedent which may 24 lead to escalation of further encroachments and illegal occupations. Hence, there is a need for the UT Government to be circumspect in this matter in order to avoid opening a pandoras box. Prof. J.S Rawat, Dr. Ritesh Agarwal, Dr. D.S Rawat and Dr. PG Jose also agreed and felt that this should be dealt with as a policy matter and necessary guidelines should be framed before proceeding further.
i) The Law Secretary was of the opinion that since there are no rules guidelines at present which could be followed by the UT Government, proceeding to pay compensation will be setting a new precedence in the UT. Therefore, if the Committee agrees, the Hon'ble Tribunal may be approached for guidance on the manner in which to proceed further.
11. It was agreed that the spirit of the approach of the Hon'ble Tribunal is respected and the UT Government has made efforts to proceed according to the same spirit. However, in absence of rules/guidelines it was felt that the issue of whether any structure raised illegally on state land should be compensated if damaged at the cost of the public exchequer. Moreover, what principle should be used for assessment of the assets, whether construction, agriculture, horticulture or other assets that may get damaged on state land occupied illegally by encroachers. Further, the guidelines on the procedure of assessment and quantum of assessed amount to be paid may also required to be framed.
15. The report said that Joint Committee decided to place the matter before this Tribunal for providing guidelines on the manner in which State is required to proceed further. In this backdrop, the matter was heard finally on 13.02.2024.
ISSUES:
16. The issues, which required adjudication of Tribunal are as under:
(I) Whether any time bound action plan is required to be prepared and executed for the area in question for its sustenance so as to avoid any further recurrence causing damage to property of the residents?
(II) What relief can be granted to the affected persons?25
ISSUE I:
17. Coming to the first question, we find that Joint Committee in its Report has clearly made various recommendations and suggestions. It is not the case of J&K UT and its authorities that recommendations and suggestions made by Joint Committee in its Report dated 24.05.2023 are impracticable or do not attract to meet the problem, which has arisen in the area concern or there exist any other reasons for not accepting and giving effect to the said recommendations and suggestions. Subsequent action taken in various meetings headed by Chief Secretary also show that decision was taken to finalize modalities of execution and prepare action plan with short and long-term executing points which means that there is no hesitation or objections to Joint Committee Report and its recommendations and suggestions. If that being so, we do not find that the above recommendations and suggestions made by Joint Committee in its Report dated 24.05.2023 should not be implemented.
18. We accept Joint Committee Report and direct Chief Secretary, Government of Jammu & Kashmir to take all steps to give effect to and implement recommendations and suggestions made in Joint Committee's Report dated 24.05.2023, in a timeline manner, which should not go beyond one year from today and submit a compliance Report to Registrar General of this Bench within 15 days after expiry of one year from today. ISSUE II:
19. Now coming to the second question, it is the admitted position that in the area in question i.e., Nai Basti Thathri, 24 structures have got damaged. Three have completely damaged, eleven severely and ten have developed minor damages. Compensation to the affected parties due to the 26 above damage to property have been denied, primarily on the ground that they are not covered by SDFR norms and also compensation under the provisions of Land Acquisition Act, 1894 for such constructions is not attracted in as much as the land on which structures were raised belong to State and, therefore, constructions raised were illegal and occupation on the land was also unauthorized, hence, no compensation is payable.
20. Our earlier orders had shown that we required State of Jammu & Kashmir to inform as to how SDRF norms can be applied to the case in hand when damage has caused not on the account of natural disaster but the situation which has arisen due to man-made reasons i.e., constructions raised on a land without its proper examination with regard to soil quality, retention capacity etc. and this could be possible since the authorities who have statutory duty of prevention, failed to discharge their obligation. Respondents were directed to place documents to show as to how SDRF norms can be sought to be relied but the said norms have not been shown to us. Nothing has been placed on record to show that SDRF norms are attracted in this case. Damage has occurred in the present case not due to natural disasters and if that be so, policy under SDRF norms is not applicable to the case in hand. Reliance placed on SDRF norms, therefore, is clearly misconceived.
21. Similarly, there is no case of acquisition of land, therefore, provisions of Land Acquisition Act, 1894 are obviously not attracted.
22. Here is a case where constructions have been made by certain persons on a land which was earlier marked as Shamlat land i.e., village pasture land though the area ceased to be a part of village as it had come within the jurisdiction of Thathri Municipality in 2014. It is true that the 27 land did not belong to the occupants who raised their residential houses over the land in question but the fact remains that this could happen due to ignorance or deliberate or passive permission of the authorities concerned who were responsible for looking after the said land and to ensure that no person unauthorizedly or illegally occupy the same. A judicial notice can be taken of the ground level reality that population is increasing but the area of land is not changing. Therefore, to accommodate the people, the land is required and it is this compulsion which is leading the people to look after the land wherever it is available and when there is no obstruction, prevention or resistance, they make their inhabitants on such land for their survival. We are not approving the unauthorized or illegal possession obtained by the affected persons but the fact remains that they could raise constructions of their residential structure on account of the lack of discharge of duties and responsibilities by the State Authorities. Moreover, it is not a case, where these affected persons are sought to be evicted or dispossessed by the authorities concerned in exercise of their statutory right to get State's land vacated but here is a case where on account of the slipping of land/slope, which situation has arisen due to omission on the part of State authorities, soil has slipped causing damage to structures of individual poor people and their structures have suffered due to man-made crisis. Hence, in a welfare state, where the hard earned money of poor people had lost in the form of damage to their residential habitat in the area in question, State not only should provide them immediate remedy but also provide adequate compensation necessary for their survival. State Authorities have admitted that in any case, occupants of affected area are partly responsible, meaning thereby, as per the case of State Authorities, it is a case of contributory negligence 28 where not only State Authorities are responsible but partly the affected persons are also responsible. The fact remains that by raising construction on the land in question without proper examination with respect to geo- technical assessment such as soil bearing test etc., ecological damage has been caused, which has resulted in the soil slipping and damage to the residential structures of the affected persons.
23. In such circumstances, under Section 15 read with Schedule II(e) of NGT Act 2010, this Tribunal can award relief in the form of compensation to the person for restitution of the property damaged and wherever such restitution is not possible to provide assistance to the affected parties in the form of compensation so that they may seek alternative accommodation at some other place.
24. In the above backdrop, we constitute a Joint Committee comprising District Magistrate, Doda, Environmental Engineer, PWD, representative of Municipality Thathari and any such person who is found necessary for compliance of this order by the above Committee to be included therein, to assess the quantum of damage suffered by the persons whose residential structures have suffered cracks/damage and, thereafter, award 50% (since the respondent State has also admitted that some part of the fault also lies with the affected parties meaning thereby a case of contributory negligence has been pleaded) of the amount assessed as compensation, to the affected persons.
25. District Magistrate, Doda shall be the nodal agency for co-ordination and compliance.
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26. Joint Committee shall make the assessment, as directed above, within three months and, thereafter, payment of compensation as directed above, shall be made within two months thereafter.
27. OA is disposed of with the above directions.
28. Copy of this judgement shall be forwarded to District Magistrate, Doda; Municipality Thathari and PWD for compliance.
29. Compliance Report shall be submitted by District Magistrate, Doda within 15 days after expiry of four months' period, as allowed above, to Registrar General of this Bench who if finds necessary, shall place the matter before the Bench of Tribunal for further directions, if any is required.
PRAKASH SHRIVASTAVA, CHAIRPERSON SUDHIR AGARWAL, JUDICIAL MEMBER DR. A. SENTHIL VEL, EXPERT MEMBER March 15, 2024 Original Application No. 93/2023 R 30