National Green Tribunal
Biswajit Mohanty vs State Of Odisha Represented By The Chief ... on 21 September, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item Nos. 02 & 03 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 68/2020/EZ
Pradip Kumar Pattnaik Applicant
Versus
Union of India & Ors. Respondent(s)
WITH
M. A No. 08/2020/EZ
In
Original Application No. 47/2016/EZ
Biswajit Mohanty Applicant
Versus
State of Odisha & Ors. Respondent(s)
Date of hearing: 21.09.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Sisir Das, Sr. Advocate a/w Mr. Prabhu Prasanna Behera, Advocate
(in item 2), Mr. Sankar Prasad Pani, Advocate (Item No. 03)
Respondent(s): Mr. Ashok K. Parija, Advocate General a/w Mr. Amar Pattnaik, Advocate
Mr. Ashok Panigrahi, Advocate, Mr. Janmejaya Katikia, AGA, & Mr.
Venugopal Mahapatra, Advocate for R-1, 2 and 3
Mr. Gora Chand Roy Choudhury, Advocate for R-10 (in Virtual Mode),
Ms. Papiya Banerjee Bihani, Advocate for Odisha SPCB
Mr. Surendra Kumar, Advocate for CPCB
(In Item No. 03)
Mr. Ashok K. Parija, Advocate General a/w Mr. Amar Pattnaik,
Advocate, Mr. Ashok Panigrahi, Advocate, Mr. Janmejaya Katikia, AGA,
& Mr. Venugopal Mahapatra, Advocate for R-1, 2 and 3, Mr.
Sailazanandan Das, Advocate for R-6 in O.A. (in Virtual Mode)
Mr. Surendra Kumar, Advocate for CPCB
ORDER
1. Grievance in this application is against the illegal sand filling in the Mahanadi river bed within the water area of Jobra Barrage at Cuttack.
1According to the applicant, the illegal action being undertaken is causing damage to the environment and the riverine ecosystem. The project called Balijatra River Front Improvement (BARFI) is an attempt to monetize the river bed for commercial purposes which will reduce the water retaining capacity of the river at Jobra Barrage at Cuttack. Free flow of water of the river bed will be affected in violation of judgment of the Odisha High Court dated 27.02.2012 in W.P.(C) No. 20283/2011, The National Lawyers Forum vs. State of Orissa and Ors. This will affect supply of drinking water and obstruct dredging which is necessary. This will also add to the floods in the city.
2. The proceedings in the matter were reviewed on 07.02.2022 in the light of earlier order dated 15.12.2020 in a connected matter (OA 22/2020(EZ) and affidavit filed by CPCB dated 04.10.2021 with a report of Joint Committee earlier constituted by the Tribunal for identification of flood plain zone. In the light of suggestion that ecological and hydrological aspects had not been covered by the report, which was mainly based on engineering aspects only, the Tribunal modified the constitution of the Committee to include ecological and hydrological experts. Relevant extracts from the order dated 07.02.2020 are:-
"2. During the hearing, learned Counsel for the applicant has also referred to the order of this Tribunal dated 15.12.2020 in O.A. No. 22/2020(EZ), Dilip Kumar Samantaray vs. State of Odisha Board & Ors., wherein the Tribunal constituted a joint Committee as follows:
"16. Accordingly, we constitute a joint Committee comprising representatives of Central Water Commission (CWC), nominees of MoEF&CC, CPCB, National Institute of Hydrology, Roorkee and the State PCB to consider the issue and lay down norms so as to ensure that the proposal of the State for construction of the medical college and river front development takes place in accordance with law, without damage to the flood plains of the Rivers. Flood plain zones need to be identified and demarcated in the light of such norms. The Committee may identify the extent of floodplain zone/active floodplain zone from the 2 edge of the river. CPCB will be nodal agency for compliance. The Committee is free to associate any other individual or institution. The Committee may complete its exercise within four months. The members of the Committee are free to interact by video conferencing or otherwise. If any grievance with regard to violation of environmental norms survives, the applicant will be free to take any further remedies as per law."
3. The matter was considered on 21.01.2021. The applicant was permitted to represent grievance in this application to the Committee already constituted so that the Committee could file a consolidated report about all the issues and the statutory authorities could take remedial action to enforce the law.
4. At this stage, we may also note the observations in order dated 15.12.2020 in O.A. No. 22/2020(EZ), Dilip Kumar Samantaray vs. State of Odisha Board & Ors. about the legal framework and need for protection of flood plains in the interest of riverine ecology and the life and property of people. Reference was made to the judgment of the Hon'ble Supreme Court dated 30.07.2009 in D.D.A. vs. Rajendra Singh, 2009 (8) SCC 582 mentioning the significance of protecting river beds and flood plains. Reference was also made to earlier order of this Tribunal dated 13.01.2015 in OA No. 6/2012 and OA No. 300/2013, Manoj Misra vs. Union of India & Ors. reported in 2015 ALL (I) NGT REPORTER (1) (DELHI) 139, judgment of this Tribunal dated 13.07.2017 in OA No. 200/2014, M.C. Mehta vs. Union of India & Ors. reported in 2017 NGTR (3) PB 1 in the context of river Ganga. The Tribunal referred to the Notification dated 07.10.2016 issued by the Ministry of Water Resources with regard to Ganga River on the subject of protecting active flood plain areas of the river and its tributaries. Reference was also made to laws enacted on the subject in certain States including Manipur Flood Zoning Act, 1978 and the Uttarakhand Flood Plain Zoning Act, 2012. Apart from Rules/Guidelines, reference was made also to Wetland Rules and action plans prepared by River Rejuvenation Committees in all the States/UTs in pursuance of order of this Tribunal dated 21.09.2020 in OA No. 673/2018, In Re: News item published in "The Hindu" authored by Shir Jacob Koshy, titled "More river stretches are now critically polluted: CPCB to the extent of steps for protecting flood plains. The Tribunal finally observed that no project could be developed in a flood plain of the river even in absence of any statutory provision on the subject as doing so affects the riverine ecology adversely. Accordingly, the Tribunal constituted a joint Committee mentioned earlier to identify the extent of flood plain zones and to lay down norms to ensure that no project was developed on the flood plains in violation of laws, resulting in damage to flood plains.
5. Accordingly, CPCB has filed its affidavit dated 04.10.2021 annexing the report of the joint Committee. The affidavit of CPCB shows that CPCB sanctioned a project called "Floodplain Zoning Study for the Identified Stretches of Mahanadi River Basin" for mapping of the river using satellite imageries, digital elevation maps, land use and land cover map showing habitation, flood frequency analysis and demarcation of flood plain zones from the edge of the river under supervision of Prof. K.C. Patra, Civil Engineering Department, NIT 3 Rourkela, who submitted his initial study report on 03.08.2021 on flood plain zoning of the area based on discharge data provided by (i) Central Water Commission (hereinafter referred as "CWC") as well as Odisha Water Resources Department (hereinafter referred as "WRD"),
(ii) DEM provided by National Remote Sensing Centre (hereinafter referred as "NRSC"), (iii) Reduced levels of Baliyatra and other points by Odisha Water Resources Department (hereinafter referred as "WRD") and (iv) Modelling through HEC-RAS 6.0.The annexed report has following conclusions and recommendations:-
"5.4 Conclusion and Recommendation as indicated in the study:
The floodplain zoning study for the identified stretches of Mahanadi river basin was carried out based on the discharge data provided by the (i) Central Water Commission (CWC) as well as Odisha Water Resources Department (WRD), (ii) DEM Provided by National Remote Sensing Centre (NRSC), (iii) Reduced levels of Baliyatra and other points by Odisha Water Resources Department (WRD), and (iv) Modelling through HEC- RAS 6.0. For details results and discussion of the study, page no. 35-37 may kindly be referred. As per the report following key conclusion and recommendations have been made;
1 From the derived statistical parameters of the CWC as well as Odisha WRD data, the value of 25 years return period flood (Q25) of magnitude 40,063 m3/s (from CWC data) is considered for floodplain mapping of the study area. During the passage of floods of Q25 and Q100, the difference in flood depths over the study areas are not found to be significant. This may be due to the river at this stretch is quite wide and thus, it is in a position to pass the flood of various return periods without appreciable change in the floodplain submergence geometry.
2 While routing this Q25 flood, it can be seen that the depth of water over the Baliyatra ground during the propagation of this flood just exceeds its average formation level of 24.5 m, but below the Reduced Level (RL) of ring road. Records from Odisha WRD indicate that water level during the passage of the flood of 44,768 m3/s was less than the RL of ring road, which further strengths the present finding on the safety of passage of the flood. Therefore, any development activities in this area can be suitably planned keeping in mind the possible submergence of this Baliyatra rehabilitated area can be expected at least once in 25 years.
3 The flood of 25 year return period is most likely to affect about 38 villages in and around the Cuttack city between Munduli and up to the lower reach, while another 66 villages may be partially affected.
These villages are on the outer periphery of both Kathjodi and Main Mahanadi branches.
44 The mean and maximum velocity of flow at cross-section 5 (having sand dune) areas are 0.493 m/s and 1.051 m/s, while at cross-section 1 (having no sand dune) the corresponding values area 0.62 m/s and 1.155 m/s. The same values at cross-section 3 which is very close to the Jobra barrage are 0.527 m/s and 1.02 m/s. From this, it can be observed that the removal of sand dunes has increased the velocity of flow at the section.
5 National Disaster Management Authorities (NDMA) Guidelines, 2008 and all other design codes need to be followed while implementing any concepts for the utilization of Baliyatra Ground at Cuttack.
5.5 Limitations of the study:
The study has the following limitations:
The flood inundation area has been computed from the CARTOSAT DEM which is not verified from the ground survey and DGPS.
Some water resources projects (both storage projects and diversion schemes) are expected to come up in future in the upstream catchment areas that is expected to store more water and moderate floods leading to reduce its peak at the Baliyatra site.
The study has the limitations inherent to the modelling through the software, quality and accuracy of the data, accuracy of the DEM, and all other associated parameters.
6.0 Recommendation of the joint committee To comply with the directions committee carried out the study by the expert institutes and agreed with the findings of the study. The point wise compliance status of the directions are as follows;
6.1 Identification and demarcation of Floodplain Flood plain zoning study (Annexure: 3) was conducted by NIT Rourkela and was agreed upon by the committee members. In this study, Flood Zone Mapping and Inundation Map was done using the latest version of HEC- RAS V-6.0 (1-D Modelling). As per the study, it was found that flood of 25 year return period (Q25) can be considered for modelling and identifying the floodplain inundation maps in the concerned stretch as the difference in flood depths between Q25 and Q100 is not found to be significant. It was further found that the flood of 25 year return period is expected to affect about 38 villages in and around the Cuttack city from the Munduli barrage to the downstream of Jobra barrage as depicted in Figure 6-1. A list of these villages is also provided in Table 2. Based on 5 the analysis it was observed that the depth of water over the Baliyatra ground during the propagation of Q25 flood exceeds its average formation level of 24.5 m, but is below the RL of ring road.
Table 2: List of villages expected to be affected during the passage of 25 year return period flood in periphery outer zones Most Likely to be Affected Village List
1. Balipur 2. Pahilabar 3. Talagar
4. Baula 5. Lalitabisakhapur 6. Chhagan
7. c:.
Madhyakachha 8. Agrahat 9. Nuapatana 10 Sankarpur 11. Jhatia 12. Shrirangapur
13 Bhabadeipur 14 Katkiasahi 15. Jagannatarapur
16. Nuasas 17. Mangalpur 18. Ramshyampur an
19. Badasantarapur 20. Jemadeipur 21. Arilo
22. Suniamunha 23. Bhuinbarei 24. Kotar Sun
25. BandhahataOTF* 26. Sarakuan 27. Paikerapur
28. Sardarkharida 29. Brahmanbasta 30. Nuagada
31. Kalankipur 32. Anantapur 33. Prabatia
34. Jagmohanpur 35. Baghua 36. Similihanda
37. Badapadagaon 38. Sanakakhadi 6.2 Construction of the medical college and river front development as per norms Based on the meeting taken by the committee with all the concerned agencies on 7th April, 2021 at Cuttack, the concept note on Mahanadi Waterfront Development describing the proposed construction activity was provided by Cuttack Development Authority (CDA). The same has been considered by the committee.
Based on the study, Baliyatra Ground comes under floodplain zone, therefore construction of structures of permanent type, as in column 2 of this Table 3 (priority-2) may be prohibited and only non- permanent structures may be allowed subject to strict adherences to the NDMA guidelines, Building Codes and others. These structures should be planned as far as away from the river water lines and active only during non-monsoon days so that there is no loss to the life and property.
Although most of the activities proposed in the CDA concept note fall under priority 3 and may be allowed following the guidelines, • however, a few construction activities like art galleries, museums etc. fall under priority 2 and therefore may not be permitted. The construction or extension of the Medical college has neither been proposed in the CDA note nor is it permissible as per NDMA Guidelines, as this kind of structure falls under Priority 1 activities.
6Categorization of the construction activities proposed by the Cuttack Development Authority (CDA) under the Mahanadi Waterfront Development is provided in Table 3. Table 3; Categorization of the construction activities proposed by the Cuttack Development Authority (CDA) under the Mahanadi Waterfront Development Priority Priority Priority Proposed Construction Activities 1 2 3 Public infrastructure such as ✓ parks, gardens, sports facilities Public infrastructure art galleries ✓ and museums Roads with uniform travel lanes, ✓ shaded footpaths, designated cycle tracks, safe intersections and landscape and public Open air market, craft bazar, food ✓ stalls like Dilli Haat (New Delhi) & Ekamra Haat (Bhubaneswar) to promote local art & crafts as well as traditional An open-air auditorium works ✓ Bali Jatra grounds ✓ "
6. Appendix-2 annexed to the report about the scope of allowed and not allowed facilities is as follows:-
"Scope of the allowed and non-allowed facilities under Priority-
1, 2 and 3
Type of Basis of Study
tion
Categoriza
structures Prioritization and Recommendations
permitted as guidelines (Joint Committee
per NDMA may decide on the
Guidelines Activities following
NDMA guidelines)
Defence Buildings should be Structures under
installations located in such a Priority-1 of the NDMA
Industries fashion that they are Guidelines is not
Public utilities above the levels permitted in the
like hospitals, corresponding to a Baliyatra Ground.
electricity 100- year frequency
Priority -1
installations, or the maximum
water supply, observed flood levels.
telephone Similarly they should
exchanges, also be above the
aerodromes, levels corresponding to
railway a 50-year rainfall and
stations, the likely submersion
commercial due to drainage
centres, etc. congestion.
7
Public Buildings should be Baliyatra Ground
institutions above a level comes under floodplain
Government corresponding to a 25- zone, therefore
offices year flood or a 10-year construction of
Universities rainfall. structures of
Public libraries Stipulation that all permanent type, as in
Residential buildings in column 2 of this table
areas vulnerable zones (priority-2) may be
should be constructed prohibited.
on columns or stilts. Baliyatra Ground is
(a) Plinth levels of within floodplain area
all buildings and therefore non-
should be 0.6 permanent structures
m above the may be allowed
drainage/flood subject to strict
Priority -2
submersion adherences to the
lines. NDMA guidelines,
(b) In the areas Building Codes and
liable to floods, others. These
all the structures should be
buildings planned as far as
should away from the river
preferably be water lines and active
double and only during non-
multiple monsoon days so
storeys. that there is no loss to
(c) In urban areas the life and property.
ground floor to
be utilised for
non-
residential
purposes
Parks and Certain areas on Priority-3 activities
playgrounds either side of the such as
existing and proposed developments of Parks,
drains (including Playgrounds and
rural drains) should creation of other
be declared as green facilities (such as
belts where no Recreational Space,
building or other Urban Forests,
activity should be Pedestrian Paths,
allowed. Cycle Tracks, Solar
This will not only Lighting, Rain Water
facilitate Harvesting, Gardens, "
improvement of these Footpaths, Cycle
Priority -3
drains in future for Tracks, Open Air
taking discharges on Market, temporary
account of growing Craft Bazar, Food
urbanisation, but will Stalls, Open Air
also help in Auditorium) may be
minimising the permitted following
damage due to NDMA Guidelines in
drainage congestion the Baliyatra Ground.
whenever rainfall of These facilities should
higher frequency than be active during non-
designed is monsoon periods so
experienced. that there is no
These green belts, at loss to the life and
suitable locations, can property.
also be developed as
parks and gardens.
7. We have heard learned Counsels for the parties. Learned Counsel for the applicant submitted that while the report considers 8 engineering aspects in light of guidelines issued by National Disaster Management Authority, it does not consider ecological and hydrological aspects in terms of order of this Tribunal dated 15.12.2020 in O.A. No. 22/2020(EZ), Dilip Kumar Samantaray (Supra). Such consideration is essential for protection of flood plain zone and associated issues relating to the ecology, environment and biodiversity. Ecological vulnerability and combined hazard vulnerability are required to be studied in light of observation of this Tribunal in order dated 15.12.2020 and safeguards need to be identified for protection of the flood plains. It requires constitution of joint Committee comprising Experts in the field of Hydrology, remote sensing and Ecology.
8. We do not see any reason not to accept the suggestion for such further study to consider appropriate directions in the interest of environment. Accordingly, we direct a joint Committee of seven Experts, with five members in the earlier Committee and two other Experts viz. Prof. C.R. Babu, eminent ecologist and environmentalist and Prof. P.C. Mishra, former Expert Member of NGT to undertake the study in light of above observations so as to include ecological and hydrological aspects and vulnerability, adding these components in the report and to make detailed recommendations identifying the steps required for protecting the flood plain zone and the environment within three months. It will be open to the applicant as well as State of Odisha to place their respective view point before the Committee. CPCB will be the nodal agency to carry out the entire exercise. Report may be filed before the Tribunal on or before 30.04.2022 by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF on or before 30.04.2022. Report may also be placed on the website of CPCB for response by any stakeholder before the next date of hearing."
3. In pursuance of above, report dated 01.09.2022 has been filed by the Joint Committee constituted as per order dated 07.02.2022. The report mentions field visit undertaken on 17.04.2022, consideration of order of the Odisha High Court in WP(C) No. 20283/2011, order of this Tribunal in OA No. 47/2016/EZ, report of the Flood Pain Zoning by Prof. K.C. Patra, vision document of Cuttack Municipal Corporation and minutes of further meetings. The Committee also considered the submission of the advocates for the applicants and officials of Odisha Government. Relevant extracts from the concluding part of the report are as follows:-
"3.3 Conclusion Based on the above mentioned field observations, the following conclusions are drawn:9
1. The 426 acre area is a dump of anthropogenic origin within the pondage area along the ring road (bund road) and is filled with solid waste and sand dredged from the exposed floodplain (shoals/ islands) of the pond.
2. The size of pond is vast and perhaps 3 to 5 km2 and the dump is about 5 km length wise and <0.5-1.2 km widthwise.
3. There are evidences that the area has been used for dumping for a long period and was encroached as evident by old trees and some of trees might have come up on their own from seeds brought by water. Heavy dumping of dredged sand took place resulting in the death of some trees and iron sheets of 8.5 mm thick and 12 m high were piled at two levels on the shoreline to prevent erosion of dumped material. Recent dumping was also done on water bearing portion of the pond. The 1000 mm pipeline was standing short columns at one time but now seems standing on sand (Figure
15).
4. Time series of maps starting from 2007 to 2022 Google Earth also show water channels passing through the area and flooding of the area but photographs of 2021/ 2022 showed only sand.
5. In simple way, the 426 acre dump is on the floodplain of river Mahanadi in the upstream of Mahanadi barrage which resulted in the submergence of the area under water due to barrage.
3.4 Consequences anticipated What are the consequences of such dumps in the mouth of barrage?
(i) The impact of habitat vulnerability during once in 25 years flood and once 100 years flood events have been worked out by the Joint Committee based on the studies carried out by Prof. K. C. Patra and the Report was submitted to Hon'ble NGT: The objections to the studies carried by Prof K. C. Patra have been filed by the Odisha State Government at Hon'ble NGT and a copy of which was submitted to the Members of the Joint Committee for responses. The responses of K. C. Patra to the objection have been accepted by the Committee and included in the Report (Annexure 6).
(ii) The hydrological impact and vulnerability of the dump are:
(A) possible reduction in the water quantity retained in the pond of the tune of 426 × 4046 × 6.50 m= 11203374 m3 ×1000 L / m3 = 11203374000 L = 2463 MG, (B) enhanced resistance to floodway of waters which result in the following hydrological and ecological vulnerability;10
(a) The floodwaters may breach embankments leading to flooding of the city and human habitations located along the embankments, particularly during the extreme events of flooding due to climate change, as it has happened in in the past not only in India but also outside India.
(b) The floodwaters may result in washing away of the barrage leading to flashfloods in the downstream that not only submerge crop fields and washing away of villages but also drastically alter the downstream of river ecosystems, particularly floodplain ecosystems.
3.5 Alternative options to protect the flood pain
1. The Committee further deliberated on the following options to address the issues arising out of the dump area within the pondage of Jobra barrage.
Option 1: Remove 426 acre dump from the pondage and utilize the sand for construction purpose.
Option 2: Bring the entire mound to the level of lower iron sheet pile so that the area receives flood water, like other islands in the river and mitigate the impacts of flood water and also retain more water during monsoon and greater recharging of ground water. The Channels that used to exist can be easily revived. Option 3: The extended Baliyatra ground (34 acres) may be retained without further expanding it and rising its height and use it as per the Hon'ble High Court Order (Honourable Odisha High Court, Cuttack in W.P(C) NO. 20283 of 2011 in the matter of The Nationalist Lawyers Forum Vrs State of Odisha and Ors.). The remaining part of the dump may be removed and no concretization nor compacting with gravel is permitted at Baliyatra ground. Option 4: The whole area may be developed into greens with revival of channels buried under sand.
Option 5: Develop the area into a Biodiversity Park that includes revival of old channels, development of Recreational Parks and Bamboo huts that contain Natural History of the River Mahanadi and its people.
Option 6: Integration of Option 2 with Option 4. Option 7: Integration of Option 2 with Option 5.
4.0 Recommendations Considering the above mentioned facts and figures, the Committee makes the following recommendations:
1. The Hon'ble NGT may consider to immediately issue direction to Govt. of Odisha i. not to dump any solid material (sand and/or solid wastes etc.) nor undertake any activity in 426 acre area, including dredging of remaining islands in the pondage area.
ii. To remove all encroachments including unauthorized religious structure on the floodplain.
112. Although the members are of the view that the flood plain has been illegally reclaimed in the river bed and there has been violation of Hon'ble High Court Order, any attempt to restore it to original situation may create further problem and may not be economically feasible. Therefore, Committee unanimously recommends that i. the extended Baliyatra ground (34 acres) may be retained without further expanding it or raising its height and shall be used as per the Hon'ble High Court/ NGT Order as stated above.
ii. Neither concretization nor compacting with gravel be permitted at extended Baliyatra ground.
iii. The whole reclaimed land (426-34 = 392 acres) except the 34 acre of Baliyatra ground may be used for plantation with appropriate Local species and the area may be developed into a Biological park reviving the old channel buried under sand.
iv. The reclaimed land must not be used for any commercial use.
3. The Government of Odisha may also be directed to take necessary steps for floodplain zoning of major rivers in the State and secure them to prevent floods, particularly flash floods that cause community losses, loses of human lives and irreparable damage to river ecosystems."
4. On behalf of the applicant an additional affidavit has been filed on 20.09.2022 inter alia stating as follows:-
"8. That 426 acres of land reclaimed from Mahanadi River is of Nadi Kisam land and it use to receive the water flow during monsoon and there used to be a channel adjoining the river embankment which has been buried under sand dump.
9. That the applicant humbly submits that the original status of the reclaimed area of 426 acres may be restored and the sand dumped be removed and used for construction purpose.
10. That the attempt of District Administration to reclaim the Mahanadi Riverbed and use of same for Baliyatra and other purposes may be restrained and the dumped sand be immediately removed so as to restore the original status of the land."
5. On behalf of the State of Odisha, objections have been filed by Collector, Cuttack on 20.09.2022. It is stated that in view of Odisha High Court order dated 27.02.2012 in WP(C) No. 20283/2011, bathymetric survey was to be done by IIT Madras and dredging and strengthening of protective embankment were to be undertaken. IIT Madras conducted 12 survey and submitted its report in June, 2015 regarding removal of shoal formation and deposition of sand locations. It recommended dredging and disposal of dredged material for reclaiming area of erosion. In the light thereof, steps were taken resulting in reclamation of low lying land on the bank of the river adjoining the ring road, using the dredged material under the supervision of the IIT Madras. In the process, 426 acres of land adjacent to City Protective Embankment around Cuttack (between new Baliyatra ground to Viewing Gallery near Maritime Museum) being the low-
lying area has been filled upto 24.5m in terms of the directions issued by the Orissa High Court in WP(C) No. 20283/2021. The State has referred to CPCB report filed on 06.10.2021 and report of Technical Committee of Odisha about flood data dated 25.04.2022 and its objections dated 20.05.2022 to the report filed by CPCB on 04.10.2022. According to the State, seven member Committee report wrongly held the dredging to be illegal, overlooking Prof. K.C. Patra report that the dredging and embankments were in pursuance of order of High Court and studies. Thus, the 426 acres of reclaimed land cannot be restored back, as sought by the applicants. The State's proposal is to prepare a master plan for development of the reclaimed land as per its vision document as follows:-
"Vision: To transform the quality of life . for all in the Cuttack region by creating an Iconic Waterfront development on the 426 acres of reclaimed land that provides opportunities . for live work- play supported by robust infrastructure, a resilient and responsive water edge and sustainable financial models.
The vision for the masterplan is guided by a 3 E principle:
Environment, Economy and Equity to attract and develop economic energies, provide for social and civic infrastructure for all and create a sustainable development which transforms Cuttack to a pull city from a push city.
Based on the guiding principles, the masterplan development is divided into three parts:
Environment 13
(i) A buffer along the river edge is to be developed cis a green eco sensitive recreational space for the city inclusive of floodable wetlands, bio diversity parks, urban forests etc.
(ii) A hierarchy of green spaces connected to a large central open space is planned for along with a robust network of pedestrian paths and cycle tracks.
(iii) Several zones in the masterplan will be demarcated as no-
vehicular zones.
(iv) Solar lighting, rain water harvesting and other smart technologies will be mandatory in the development Equity
(i) The masterplan will provide the residents of Cuttack and regional, national and international tourists equal access to world class public infrastructure such as parks, gardens, sports facilities, art galleries and museums
(ii) The entire area will be serviced by a hierarchy of roads with uniform travel lanes, shaded footpaths, designated cycle tracks, safe intersections and landscape and public space inclusion.
(iii) The masterplan will be serviced by robust networked infrastructure in terms of underground sewage, 24/7 water supply, uninterrupted access to power, telecom, and a sustainable solid waste management system.
Economy
(i) Portions of the masterplan will be developed as open air market, craft bazar, food stalls like Dilli Haat (New Delhi) & Ekamra Haat (Bhubaneswar) to promote local art & crafts as well as traditional works i.e. applique work, filigree work, Maniabandha Saree. Sambalpuri Sarees etc. to improve livelihood and create employment in the region.
(ii) 100 acres will be reserved ,for the Bali Jatra grounds-
to hold the 9 day festival in November, and it will be used as a multifunctional events ground for the rest of the lvar.
(iii) An open air auditorium also shall be planned for performance of Odissi dance and other Indian dance forms to promote culture & tourism in the State. Some Stadia will be constructed for promoting sports.
(iv) As suggested by the Expert committee of Govt. of Odisha about 66 Acres of road side reclaimed land out 14 of 426 Acres would be utilized for permanent construction.
An underlying principle and perhaps the most important of all is to build a strong link between the city and river, visually and physically with a nature responsive approach.
(i) The development will be volumetrically zoned to have terraced buildings, viewpoints and vistas to capitalise the proximity to the river.
(ii) The river edge will be designed as a green edge with various edge engineering solutions to revive the riparian ecology and promote bio diversity.
(iii) There shall be a green buffer zone i.e. no development zone which will protect the river and create a flood safe zone for the development The impact of the proposed development of the reclaimed land is to incrementally improve the economy, tourism and environment of Cuttack and create a space with improved access to all services and infrastructure as well as opportunity for a better quality of life of people staying in this millennium city."
6. It is further submitted that:-
"43. Therefore, to implement the vision plan of the CDA for the development of the riverfront and enhance the life and livelihood of the people of the historic city of Cuttack, permanent construction activities as permissible under the NDMA Guidelines may be permitted on at least 1/3 rd of the total area of such reclaimed land.
44. The balance 2/3rd of the total area of reclaimed land would be used for plantation of appropriate local species, development of a Bio-Diversity Park and other temporary constructions, as and when necessary.
45. In this context, it may also be pertinent to note that the State Government has removed four unauthorised slums and a large number of unauthorised religious structures from the Hadiapatha and Bali Yatra area following its reclamation. Keeping this land vacant would also pose a perennial threat to its encroachment in future as this land is close to the city of Cuttack. in fact, the Objection Affidavit dated 20.05.2022 filed by the Superintendent Engineer, Mahanadi River Barrage states as follows:
"10. ...It is apt to mention here that earlier the said area was under the occupation of slum dwellers. If the same portion would not be used for the purpose of public 15 utilities, the said area, in all probability, is likely to be occupied again by slum dweller.
46. Therefore, it would be in public interest to allow the State Government to make permanent constructions on, at least, 1/3 rd land of the reclaimed area.
H OLDIN G O F BAL I Y ATRA
47. In this regard, it is pertinent to note that an Original Application being OA No. 47 of 2016 was filed before the Hon'ble NGT, Eastern Bench, Kolkata. challenging inter alia organization of Bali Yatra.
48. In the said matter, the Hon'ble NGT, Eastern Bench, Kolkata in its judgment dated 16.10.2017 directed as follows:
"... There may be a probability of monsoon water of the river reaching the site. But the festival is held after onset of winder when the river flows beyond the designated site. Therefore, we are of the view that the age old tradition of organization such historic festival should continue provided the District Administration takes all preventive measures to ensure that the festival in no way affects the river ecology and contaminate the water body."
49. It is pertinent to note that the Bali Yatra festival is organized for a short duration of 9-10 days only during the month of November every year.
50. It is stated that all structures to be constructed for the purposes of Bali Yatra festival in this period would be temporary in nature.
51. The District Administration, in terms of the earlier order of the NGT, Eastern Bench in Q.A. 47 of 2016, undertakes to take all preventive measures to ensure that the festival in no way affects the river ecology and contaminate the water body including carrying out an extensive cleaning exercise to restore the area used for Bali Yatra festival to its pre-Yatra stage."
7. We have heard the learned Counsel for the applicants and learned Advocate General for the State of Odisha.
8. While, we are in agreement with learned Advocate General, supported by the view of the seven-member Committee Report that even restoration of reclaimed land is not viable. However, we find it difficult to 16 accept the proposal of the State by way of vision document/master plan for constructions in the reclaimed land which is established to be part of floodplain zone. There is clear anticipated danger of flooding. We are guided by 'precautionary principle' under section 20 of the NGT Act. We further agree with the recommendations of the Committee that while Baliyatra ground (34 acres) may be retained, though in floodplain zone, there should be no further expansion and no concretization or compacting of the said ground. Remaining 392 acres of land be used for plantation of local species and the area be developed into a Biological Park and no commercial use be allowed. State of Odisha may take steps for floodplain zoning of other major rivers.
9. Only modification/clarification to the recommendations which we make in the light of suggestion of the Advocate General is that reclaimed land that while 2/3rd of reclaimed land be developed as a dense forest, the remaining 1/3rd land may be developed as parks/playgrounds without any permanent or temporary constructions but without allowing any commercial activities. Parks may be maintained in accordance with the judgments of the Hon'ble Supreme Court in Bangalore Medical Trust v. B.S. Muddappa, (1991) 4 SCC 54 and Lal Bahadur vs. UP, (2018) 15 SCC 407.
It is made clear that no concretization of any sort will be allowed in the entire 426 acres of land. While allowing Baliyatra in 34 acres of land, all due precautions for maintaining sanitation and hygiene shall be observed.
10. The State may adopt necessary safeguards for protection of 38 villages likely to be affected by floods in the periphery of Cuttack, identified in para 7 of the report of Prof. K.C. Patra of September, 2020, Annexure II to the report of the seven-member Committee. List of 38 villages find mention in quoted part of earlier order in para 2 above (Table 2).
1711. Area where forest is to be developed may be handed over to the forest department, after demarcation. Rest of the area be maintained by concerned local body/Flood and Irrigation Department, as may be decided by the Orissa Government.
The applications stand disposed of accordingly.
If any grievance survives, aggrieved party will be free to take further remedies as per law.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM B. Amit Sthalekar, JM Saibal Dasgupta, EM Prof. A. Senthil Vel, EM September 21, 2022 OA No. 68/2020/EZ with MA No. 08/2020/EZ in OA No. 47/2016/EZ AVT 18