National Green Tribunal
Vipin Nayyar vs Union Of India on 7 December, 2023
Item No.2 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI.
(Through Physical Hearing with Hybrid VC Option)
Original Application No.305/2022
(I.A NO. 751/2023)
Vipin Nayyar ...Applicant
Versus
Union of India & Ors. ...Respondents
Date of hearing: 07.12.2023
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER.
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER.
Applicant: None for the Applicant.
Respondents: Mr. Thakur Sumit, Advocate for Respondent No. 1,
MoEF&CC.
Mr. Rahul Verma, AAG for State of Uttarakhand.
Mr. Rajeev Dhiman, Chief Conservator of Forest
(Through VC)
Mr. Jaipal Singh, Chief Engineer Irrigation
Department.
Mr. Tejender Rajawat Proxy Counsel for Mr. Ruchir
Mishra Advocate for Respondent No. 3-ASI.
Mr. Mukesh Verma, Advocate for respondent no.7-
UKPCB (through VC).
Mr. Rajesh Kumar, Advocate for Respondent No. 8.
Application under Section 18 read with Sections 14 and 15 of the
National Green Tribunal Act, 2010
ORDER
1. The grievance in the present application is regarding construction of Moga Resort in violation of 1:25 years Flood Plain Zone of river Ganga, by encroaching upon the Forest Land, narrowing down of river bed of river Rambha, cutting down of trees on the forest land situated on the confluence of river Ganga and Rambha, in eco-sensitive and prohibited O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -2- zone of Archaeological Excavation Site of an Ancient Monument of National Importance.
2. Vide order dated 06.05.2022, notices were ordered to be issued to respondents and a Joint Committee was also constituted to verify the factual position and submit its Factual and Action Taken Report.
3. In compliance thereof, report of the Joint Committee was filed vide email dated 24.08.2022 and replies/reports were filed by the respondents. The matter was heard on various dates and was last heard on 29.09.2023.
4. Vide order dated 29.09.2023 personal appearance of the PCCF (HoFF), Government of Uttarakhand, Chief Engineer, Department of Irrigation, Government of Uttarakhand and District Magistrate, Dehradun was ordered.
5. Mr. Anup Malik, PCCF (HoFF), Government of Uttarakhand has filed an application for exemption from personal appearance on the grounds stated therein and in view of the reasons mentioned the application is allowed.
6. In compliance of order dated 29.09.2023 Mr. Rajeev Dhiman, Chief Conservator of Forest has appeared before this Tribunal through VC and Mr. Jaipal Singh, Chief Engineer Irrigation Department has appeared before this Tribunal physically and we have interacted with them.
7. In the present case, in the report of the Joint Committee forwarded by UKEPPCB coordinates of "Moga Resort" were mentioned as 30003'59"N and 78016'51"E but in reply to the application dated 14.08.2022 filed by the applicant under the Right to Information Act, 2005 the Executive O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -3- Engineer, Irrigation Department mentioned coordinates of "Moga Resort"
as 30003'58.2"N and 78016'50.4"E.
8. Vide order dated 22.11.2022 respondent no. 8 was directed to file an affidavit mentioning the coordinates of Moga Resort but the same has not been filed so far.
9. Respondent no. 8 is directed to file its affidavit mentioning the coordinates of Moga Resort on or before 17.02.2024 by e-mail at judicial- [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
10. Comparative reading of the report of the Joint Committee and reply filed by respondent no. 1 indicates the contradictions in the same. In the report of the Joint Committee "Moga Resort" is mentioned to be situated outside the reserved forest but it has also been mentioned that the Forest Department has shown the "Moga Resort" to be situated in Virbhadra Kaksh Sankhya 1 and 2 which fall in prohibited area. In the report of the Joint Committee "Moga Resort" is mentioned to be situated within 1:25 Flood Plain Zone of river Ganga. In his report dated 26.08.2022, Divisional Forest Officer, Dehradun Forest Division, Dehradun has mentioned "Moga Resort" to be situated outside the limits of reserved forest but in his report he has also acknowledged the possibility of error in demarcation.
11. Vide order dated 24.11.2022, I.A No. 295/2022 filed by the applicant was allowed and (1) the National Remote Sensing Centre (NRCA), Hyderabad was directed to submit status report over the Prescribed Time-Line for Year 2014, Year 2016, Year 2017 and Year 2021 with High Resolution Satellite Imagery of the construction site of the "Moga Resort" to ascertain the factual situation with respect to the Forest Canopy/Vegetative Cover at (i) the Co- O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -4- ordinates 30003'58.2"N and 78016'50.4"E and (ii) 30003'59"N and 78016'51"E; and (2) the Director Map Archive & Dissemination Centre, Survey of India, Dehradun was directed to confirm whether the (i) Co- ordinates 30003'58.2"N and 78016'50.4"E and (ii) 30003'59"N and 78016'51"E pertain to Reserve Forest in District Rishikesh Uttarakhand.
12. Report was filed by NRCA, Hyderabad vide email dated 13.01.2023 stating that in order to ascertain whether the construction site of the "Moga Resort" falls in forest cover, accurately surveyed boundaries of the "Moga Resort" as well as base map and forest boundary compatible with cadastral scale are required and the required base maps and boundary information are not available with NRSC.
13. No report was filed by the Director Map Archive & Dissemination Centre, Survey of India, Dehradun and no explanation what so ever has been furnished for non-compliance with the orders passed by this Tribunal.
14. Vide order dated 29.09.2023 the Director Map Archive & Dissemination Centre, Survey of India, Dehradun was directed to file his report as directed vide order dated 22.11.2022 within one month and it was mentioned that in case of failure to submit the report as directed, the Director Map Archive & Dissemination Centre, Survey of India, Dehradun before the date fixed by this order, the same will be construed as willful non-compliance with the order passed by this Tribunal and accordingly appropriate legal action will be initiated against him. No report has been filed in compliance of order dated 22.11.2022.
15. In view of the facts and circumstance of the case, we consider personal appearance of the Director Map Archive & Dissemination O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -5- Centre, Survey of India, Dehradun before this Tribunal physically or through VC on the next date of hearing to be essential for producing the relevant record and assisting this Tribunal in just and proper adjudication of the questions involved in the case. Accordingly he is directed to remain present before this Tribunal on that date with the relevant record.
16. We are constrained to clarify that in case of his non-appearance on the next date of hearing to be hereby fixed, warrant of arrest may be issued against him for securing his presence before this Tribunal.
17. I.A. No. 68/2023 was filed by the applicant seeking direction to respondent no. 2, the Principal Chief Conservator of Forest to explain the factual situation of River Rambha that is clearly marked and shown in the beat map of Veerbhadra Reserve Forest Sr. No. 1 and Sr. No. 2 and to confirm if River Rambha flows along the right side of the complete length of 'Moga Resort' and the same falls under reserve forest.
18. I.A no. 68/2023 filed by the applicant was allowed by this Tribunal vide order dated 24.05.2023 and respondent no. 2-PCCF was directed to file affidavit explaining the factual situation of River Rambha as shown in the beat map of Veerbhadra Reserve Forest at Sr. No. 1 and Sr. No. 2 and to confirm if River Rambha flows along the right side of the complete length of 'Moga Resort' and the same falls in reserve forest.
19. In compliance thereof affidavit was filed by Mr. Anup Malik, PCCF (HoFF), Government of Uttarakhand vide email dated 28.09.2023 stating that as per the report, furnished by the DFO, Dehradun Forest Division, Rambha river flows on the right side of the Moga Resort, The area comes O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -6- under revenue department (village Virpur Khurd) and the same does not fall in Reserve Forest.
20. This Tribunal observed in order dated 29.09.2023 that the affidavit filed by the PCCF (HoFF), Government of Uttarakhand was materially deficient and did not take into consideration the questions raised and adopted a short cut of placing reliance on report of the subordinate officers which is grossly incomplete, inadequate and unscientific. The PCCF (HoFF), Government of Uttarakhand was directed to look into the matter personally, make the relevant inquiry on the basis of the record of the Forest Department and the Revenue Department, look into the averments made in the original application and the documents attached with the same and the replies filed by the respondents and file his affidavit explaining the factual position as involved in the present case.
21. In compliance of order dated 29.09.2023 Mr. Anup Malik, PCCF (HoFF), Government of Uttarakhand has filed affidavit dated 06.12.2023. The relevant part of the affidavit reads as under:-
"Affidavit of Anup Malik (Male), aged about 59 years, S/o Sh. Pratap Singh, presently posted as Principal Chief Conservator of Forests (HoFF), Uttarakhand X X X X X X That in compliance to the above directions, the deponent directed the Conservator of Forests, Shivalik Circle, vide letter no. P.O/47 dated 02.12.2023, who is having jurisdiction over the forest land/river in question, to inspect the site personally and after going through the relevant documents shall furnish his report pertaining to the above queries, as directed by this Hon'ble Tribunal.
3. That it is pertinent to mention here that the Conservator of Forests, is a very senior post in the departmental hierarchy. He is placed at level 13¬A in the 7th pay commission pay matrix. Conservator of Forests, Shivalik Circle, himself visited the site on 03.12.2023 in the presence of Revenue as well as Forest department officials. After the site visit and examination of the relevant records he had submitted his detailed report vide his letter no. 6297/29-3(3) dated 04.12.2023. Along with his report, he has annexed the joint inspection report, submitted by O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors.-7-
the joint committee of Revenue and forest department officials. Copy of the report furnished by the Conservator of Forests, Shivalik Circle along with the joint inspection report is being annexed collectively and marked as ANNEXURE-1.
4. That as per the report furnished by the Conservator of Forests, Shivalik Circle, the entire construction of Moga Resort is on private land (land with transferable rights) as allotted to the owner of Moga Resort by the Revenue Department. Thus, there is no encroachment on the Reserve forest land.
5. That as per the joint inspection report of the revenue and the forest department, a stretch of 91 mtrs. of Rambha river which is flowing parallelly on the right side of Moga Resort is mentioned as 'khala' in revenue records and is part of khasra no. 94-ka and 95-ga under the jurisdiction of revenue department, (village Virpur Khurd). Thus, this particular stretch of 91 Mtrs. is not part of Reserve Forest. It is pertinent to mention here that beyond the above mentioned stretch of 91 Mtrs. of Rambha river, a stretch of around 130 Mtrs. of river Rambha, lies down stream of Moga Resort and its confluence with river Ganga. This 130 Mtrs. stretch lies in Reserve Forest compartment Veerbhadra-2d of Rishikesh range of Dehradun Forest Division. As far as width of Rambha river flowing along the length of Moga Resort is concerned, it is around 10 Mtrs. Moreover, this entire stretch is protected on both the banks by flood protection walls constructed by irrigation department (as informed by the locals).
6. That the Conservator of Forests, Shivalik Circle also inspected the adjoining Reserve Forest area including the area situated on the confluence of river Rambha and Ganga, and as per his report, no direct or indirect signs of felling of trees were found in the above mentioned Reserve Forest areas. This fact was further ascertained from the perusal of record of forest offences (H-1, register) maintained in the range office.
7. That the Conservator of Forests, Shivalik Circle, vide his detailed report dated 04.12.2023, has concluded after thorough examination of the records of Revenue and forest department, site inspection and detailed survey of the boundaries of the reserve forest, that the entire construction of Moga Resort is outside the boundary of the reserve forest, and the river Rambha flowing parallelly throughout the length of the Moga Resort, falls outside the boundary of the reserve forest area. Moreover, there is no sign of illicit felling of trees in the adjoining Reserve Forest near the confluence of river Rambha and Ganga.
8. Thus, after looking into the matter personally, and making the relevant inquiry through Conservator of Forests, Shivalik Circle and after going through the records of the Forest Department and the Revenue Department, and after looking into the averments made in the original application and the documents attached with the same the deponent has reached at the conclusion that the Moga Resort has been constructed on private land allotted to the owner by Revenue Department. As far as the stretch of Rambha river (91 Mtrs.) flowing parallelly to Moga Resort is concerned, this stretch is part of Revenue Department land. The width of this stretch is around 10 Mtrs. O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors.-8-
with pucca protection walls constructed on both the banks. Thus, neither the Moga Resort nor the stretch of river Rambha flowing parallelly to Moga Resort are part of Reserve Forest area. Thus, it is concluded that there is no encroachment on Reserve Forest area. As far as felling of trees in adjoining reserve forest area is concerned, no direct or indirect sign of illicit felling was found. Thus, it can be concluded that no illicit felling has happened in the said area.
9. That as far as flood plain zone of river Ganga is concerned, it is a matter related with irrigation department, and the Hon'ble Tribunal has already directed the Chief Engineer, Irrigation Department to file his reply before this Hon'ble Tribunal.
10. That as far as prohibited distance from archaeological site is concerned, the archaeological survey of India (ASI) would be the competent authority to respond to the said averment..."
22. The affidavit filed does not explain the factual situation of River Rambha as shown in the beat map of Veerbhadra Reserve Forest at Sr. No. 1 and Sr. No. 2 and does not confirm if River Rambha flows along the right side of the complete length of 'Moga Resort'. Mr. Rajiv Dhiman, Chief Conservator of Forest, whose report has been relied by PCCF (HOFF), has appeared on behalf of the PCCF (HOFF) but in the course of interaction he has conceded that he has not looked into the relevant questions as mentioned in order dated 29.09.2023 as to whether the land underneath the Moga Resort falls within Veerbhadra Kaksh No. 1 and 2. Further, geo-coordinates of the forest land and the land underneath Moga Resort have not been mentioned in the report and copies of the relevant maps have not been enclosed with the same. Consequently, the report submitted by Chief Conservator of Forest does not deserve any credence as to its correctness as the relevant issues have not been addressed.
23. The PCCF (HoFF), Uttarakhand is directed to submit report with specific demarcation based on forest working plan, satellite imagery, survey of India Map and other relevant records to ensure scientific assessment of the issue under consideration and verify the factual O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -9- position giving clear answers to questions raised in terms of order dated 24.05.2022 on or before 17.02.2024 by e-mail at judicial- [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
24. Vide order dated 29.09.2023, the District Magistrate, Dehradun was directed to produce complete revenue record pertaining to the land on which Moga Resort has been constructed and also the record pertaining to river Rambha and Ganga alongwith copies of the relevant Jamabandies/Khatonies/Mutations, field book/survey maps pertaining to the same and copies of orders passed by the Revenue Courts in favour of respondent no. 8.
25. In compliance thereof report has been filed by Mr. Ramji Sharan Sharma, Additional District Magistrate on behalf of District Magistrate, Dehradun, Uttarakhand.
26. The relevant part of the report filed by Mr. Ramji Sharan Sharma, Additional District Magistrate on behalf of District Magistrate, Dehradun, Uttarakhand reads as under:-
"Report by way of affidavit on behalf of District Magistrate, Dehradun, Uttarakhand in compliance of directions passed by the Hon'ble National Green Tribunal vide its order dated 29.09.2023.
X X X X X X
5. That in compliance of the abovementioned directions passed by this Hon'ble Tribunal, a joint team of the officials of revenue department and forest department visited the site in question and held the joint survey and contents of the report are as follows:-
I. That Mogha Resort situated at an area 0.045 Hectare at Khasra Nos. 94Gha, area 0.081 hectare at 94Da, area 0.0130 Hectare at Khasra No. 95Kha total area 0.1390 Hectare. Copy of report of joint team is annexed hereto and marked as ANNEXURE R-2.
II. That it is respectfully submitted that the Bhumidhari rights O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors.-10-
were given to Surendra Kumar Mogha in view of order passed by the Court of Assistant Collector, First Class Rishikesh passed in Case No. Misc./2015 - Surendra Kumar Mogha Versus State under Section 131 KhaZamindari Abolition Act. Copies of the said order dated 8.1.2021 passed by the Assistant Collector, First Class, Rishikesh, Khasra, Khatoni, ZindBandovast, Shajra and Nazri Map are annexed hereto and marked as ANNEXURE R-3 (COLLY).
III That this is to bring the kind notice of this Hon'ble Tribunal regarding the Zamanbandi that according to the Section 2 of The Uttarakhand (Uttar Pradesh) Zamindari Abolition and Land Reforms Act, 2011, the member of the families who have not land area more than 1.26 Hectare (3.125) of total area of land as Bhurnidhar starting of .Agriculture Year from 1st July, 1977, they will be relieved from the paying land revenue. IV. That it is also bring to the kind notice of this Hon'ble Tribunal that partial part of river Rambha is flowing on Khasra No.94 and 95 and the same is recorded in the Khata No. 274 as Khala in the of revenue record of Village BirpurKhurd. Copy of the Khatoni is annexed hereto and marked ANNEXURE R-4. V. That it is also bring to the kind notice of this Hon'ble Tribunal that partial part of river Ganga is flowing on Khasra No. 94 and 95 and the same is recorded in the Khata No. 274 as Khala in the of revenue record of Village Birpurkhurd. Copy of the Khatoni is annexed hereto and marked Annexure R-4. V. That it is also bring to the kind notice of this Hon'ble Tribunal that river Ganga is flowing outside the area of limit of Village BirpurKhurd, therefore, the same is not recorded in the revenue records....."
27. Copies of Joint Inspection report order dated 08.01.2021 passed in Case no. Misc/2015 titled as Surendra Kumar Moga Versus State of Uttarakhand and Khasra/Khatoni have been enclosed with the report.
28. Mr. Ramji Sharan Sharma, Additional District Magistrate who has appeared on behalf of District Magistrate, Dehradun, Uttarakhand does not have complete revenue record with him.
29. The District Magistrate, Dehradun is directed to submit a report regarding nature and status of the land prior to and after 3rd June, 1995 along with copies of the relevant khasra and khatoni and also to file copies of relevant revenue maps showing Revenue and Forest land on the basis of which the land in question was demarcated by the Revenue O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -11- Officials on or before 17.02.2024 by e-mail at judicial- [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
30. The applicant filed I.A No. 751/2023 vide email dated 26.09.2023 seeking relief of declaring the provisional notification no. 1875/ 11(2)- 2020-06(18)/2020 dated 07.10.2020 issued by the State of Uttarakhand under the Uttarakhand Flood Plain Zoning Act 2012 as the final notification regarding identification and demarcation of the flood plain zones of river ganga in Tehsil Rishikesh District Dehradun.
31. Vide order dated 29.09.2023 State of Uttarakhand and the Chief Engineer, Department of Irrigation, Government of Uttarakhand were impleaded as respondents no. 9 and 10 and notices were ordered to be issued to them for filing their responses.
32. Pursuant to notice report has been filed by Respondent no. 10- Department of Irrigation, Uttarakhand vide email dated 06.12.2023.
33. The relevant part of the report filed by way of affidavit Mr. Dinesh Chand Uniyal, Executive Engineer, Irrigation Division, Dehradun, Uttarakhand Respondent no. 10-Department of Irrigation, Uttarakhand reads as under:-
"REPORT BY WAY OF AFFIDAVIT ON BEHALF OF DEPARTMENT OF IRRIGATION, GOVT. OF UTTARAKHAND IN COMPLIANCE OF DIRECTIONS PASSED BY THE HON'BLE NATIONAL GREEN TRIBUNAL VIDE ITS ORDER DATED 29.09.2023.
X X X X X
6. That in compliance of the above mentioned directions passed by this Hon'ble Tribunal, the present Factual Report on behalf of Department of Irrigation, Govt. of Uttarakhand by way of present Reply by way of Affidavit is being filed as follows:-
O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors.-12-
I. It is pertinent to mention herein that in the revenue record of irrigation Department of Uttarakhand, the Mogha Resort is not constructed on the land related to the irrigation department of Uttarakhand.
II. That Govt. of Uttarakhand issued vide its Interim Notification No.727/II (2)-2022-06(18)2020 dated 13.07.2022 with regard to flood plain zoning of right side of river Ganga in Tehsil Rishikesh of District Dehradun, Uttarakhand, thereafter, for issuance of final Notification, District Magistrate, sent proposal to State Government vide its letter No.344/C.R.A.-AApda- 2023/Dehradun dated 27.01.2023, and the proposal was sent to the Government Copies of abovementioned Notification dated 13.7.2022 dt.27.1.2023 are annexed hereto and marked as ANNEXRE R-2 & R-3 respectively.
III. It is further respectfully submitted that for finalization of the proposal sent by District Magistrate, Dehradun, a meeting was held under the chairmanship of Chief Secretary, Govt. of Uttarakhand on 16.06.2023, and in view of the same the guidelines were issued and in view of the said guidelines, a district level committee under chairmanship of Flood Zoning Officer /District Magistrate was constituted and its meeting was held on 2.11.2023, the said committee is reviewing the proposal in accordance with guidelines issued by the Government of Uttarakhand, and the proceedings are in process for finalization of flood plain zone. A copy of the minutes of the meeting dated16.06.2023 and 02.11.2023 is annexed hereto and marked as Annexure R-4 and Annexure R-
5...."
34. The relevant provisions of the Uttarakhand Flood Plain Zoning Act, 2012 are reproduced as under:-
"8. Declaration of intention of State Government to demarcate flood plains areas. - The State Government may on the basis of a report from the Flood Zoning Authority or otherwise, by notification in the Official Gazette, declare its intention to demarcate the flood plain areas and either prohibit or restrict the use of land therein.
9. Public Notices. - (1) The Flood Zoning Authority shall, on the issue of notification under section 8, cause public notice of the substance of such notification to be given at convenient places in the area.
(2) The Flood Zoning Authority shall also give notices individually to the owners of the lands situated in the area. (3) The Flood Zoning Authority shall exhibit records, charts, maps, registers and such other document showing the river channel, flood channel and the flood plain area, specifying the nature and extent to which the use of limits of the area is either prohibited or restricted, in the office for inspection by the General public at the timing specified therein.
O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -13-
10. Objections. - (1) Any person, who desires to raise any objection to the limits and either the prohibitions or restrictions specified in the public notice referred to in section 9, may within a period of sixty days from the date of publication of the notification in the Official Gazette, forward to the Flood Zoning Authority a statement in the writing setting forth his objections. (2) After the expiry of the period aforesaid, the Flood Zoning Authority shall issue a notice in a manner prescribed and consider the objections after giving the party concerned a reasonable opportunity of being heard in the matter. (3) The Flood Zoning Authority shall forward to the State Government its or his proposals together with the records referred to in sub-section (3) of section 9.
11. Decision of State Government. - (1) The State Government shall after considering the report of the Flood Zoning Authority, order such alteration in the limits of the area as it considers necessary.
(2) The decisions of the State Government shall be final. (3) The State Government shall by notification in the Official Gazette, declare that the provisions of this Act shall apply to the said river with boundaries and limits as specified :
Provided that the State Government shall also make arrangement for rehabilitation of Colonies already existing in the flood plain.
(4) The areas delineated and approved by the State Government shall be deemed to be the flood plain and the limits shall, where necessary be marked either by boundary stones or other suitable marks.
(5) The Flood Zoning Authority shall maintain the charts and registers of such areas so delineated and such charts and registers shall form part of the permanent records of the office. (6) The charts and registers maintained under sub-section (5) shall be furnished to the Collector of the District in which any part of the river is situated and shall be opened for inspection by the general public at such times as may be prescribed.
12. Power to prohibit obstruction etc. in flood plain. - (1) Where the State Government is satisfied that it is necessary to do so in the interest of public health, safety or property or reducing the inconvenience to the general public to prohibit or restrict the activities in the flood plain, the Government may, by notification in the Official Gazette, specify the area where such prohibition or restriction is to be enforced and the nature and extent of such prohibition or restriction:
Provided that no notification under this sub-section shall be issued after the expiry of [eighteen months] from the date of publication of notification under section 8. (2) Upon the publication of a notification under sub-section (1), notwithstanding anything contained in any law, custom, agreement of instrument, for the time being in force, the prohibition or restriction specified in such notification shall prevail.
O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -14-
(3) No person shall undertake any activity within the prohibited area or restricted area except with the previous permission of Flood Zoning Authority:
Provided that where a person makes an application to the Flood Zoning Authority for permission under this sub-section to undertake any activity and the Flood Zoning Authority does not within a period of ninety days from the date of receipt of such application, communicate to the said person that permission applied for has been refused, it shall be presumed that he Flood Zoning Authority has granted such permission."
35. Mr. Jaipal Singh, Chief Engineer, Department of Irrigation, Government of Uttarakhand has explained the delay in finalization of notification and assured that it will be done expeditiously.
36. We see no valid justification for such long delay in finalization of the draft notification. However, due to self-adopted restraints of judicial propriety we do not want go into or comment on the reasons for the same.
37. The respondents are directed to take requisite steps for finalizing the notification and file progress report on or before 08.01.2024 by e-
mail at [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
38. It may be observed here that in his affidavit Mr. Dinesh Chand Uniyal, Executive Engineer, Irrigation Division Dehradun, Uttarakhand has mentioned that parts of Moga Resort fall within 1 : 25 and 1 : 100 flood plain zone. The relevant part of the affidavit reads as under :-
"......
.......
IV. it is respectfully submitted that during the inspection it was found that Mogha Resort is constructed on the left side of Rambha river and on the right side of the Ganga River, on confluence of Ganga-Rambha river. As per the interim notification of flood plain zoning proposal mentioned above, it was found that 436 square meter structure of Mogha Resort exists under interim proposal of 1:25 year flood plain zone and O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors.-15-
336 square meter structure (open halls) exists under interim proposal of 1:100 year flood plain zone...."
39. The case involves question as to permissibility of construction of resort in view of notification issued with respect to river Ganga and its tributaries.
40. In the facts and circumstances of the case we also consider it appropriate to seek response from NMCG and consider presence of NMCG to be essential for just and proper adjudication of the questions involved in the case. Accordingly, NMCG is impleaded as respondent no. 11. The Registry is directed to amend memo of parties and issue notice to respondent no. 11 requiring it to file its response on or before 17.02.2024 by e-mail at [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
41. Vide order dated 22.11.2022 this Tribunal directed UKPCB to pay the expenses, if any, incurred for the submission of the reports by the NRSC, Hyderabad. It appears from the material on record that the requisite expenses have not been paid by UKPCB. UKPCB is directed to pay the requisite expenses to NRSC, Hyderabad within one month from the date of receipt of a copy of this order.
42. In view of the facts and circumstances of the case, UKPCB is also directed to inspect Moga Resort and to file status report regarding compliance with environmental norms and obtaining of requisite NoCs from the concerned Departments by the Project Proponents and also regarding obtaining of CTO/CTE by the Project Proponent from the UKPCB on or before 17.02.2024 by e-mail at judicial- O. A. No. 305/2022 Vipin Nayyar Vs. Union of India & Ors. -16- [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
43. List on 10.01.2024 for consideration on progress report regarding finalization of interim notification issued on 13.07.2022 and thereafter list on 20.02.2024 for further consideration.
44. A copy of this order be sent to the PCCF (HoFF), Uttarakhand, Director Map Archive & Dissemination Centre, Survey of India, Dehradun Chief Engineer, Irrigation Department, Uttarakhand, the District Magistrate, Dehradun and the Member Secretary, UKPCB.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM December 07, 2023 AG