Jammu & Kashmir High Court - Srinagar Bench
Central Auqaf Committee Tarzoo vs State Of on 14 September, 2020
Bench: Chief Justice, Puneet Gupta
1
S. No. 209
Advance List
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
WP (C) PIL No. 08/2020
CM Nos. 2162/2020, 2778/2020
(Through Video Conferencing)
Central Auqaf Committee Tarzoo
.... Petitioner
Through: Mr. Shafaqat Nazir, Advocate.
v.
Union of India and others
.... Respondents
Through: Mr. T.M. Shamsi, ASGI, for R-1
Mr. B. A. Dar, Sr. AAG, for R-2, 3, 7 & 8.
Mr. M. A. Chashoo, AAG, for R- 4 to 6 & 11 to 13
Ms. Asifa Padroo, AAG, for R-9 & 10.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
14.09.2020
1. Reply dated 01.09.2020 has been filed by respondent no. 8. The Respondent No. 8 in its reply has stated as follows:
"1. Wular Lake forms a part of river Jhelum basin which is a sub-basin of Indus river. Wular Lake is one of the largest freshwater lakes of Asia. Wular with its associated wetlands support rich biodiversity and provides habitat to migratory birds within Central Asia flyover. Wular Lake is largest fisheries resource in Kashmir valley supporting livelihoods of large human population living along its fringes. The Wular and its associated wetlands protect the Kashmir Valley from floods as well as maintain the flow to support agriculture and hydro-power generation. Recognizing Importance of this wetland for its biodiversity and socio-economic values, the lake was been designated as "Wetland of International Importance" under "Ramsar Convention" in 1990.
2. The J & K Government formally constituted the Wular Conservation and Management Authority (WUCMA) in 2012 vide SRO-311 & 314 of 2012 under the J & K Development Act of 1970 and the Authority came into existence in 2012. The Authority has been given the task of conservation and preservation of the Wular Lake and its feeder channels as well as the treatment of its catchment area falling under Erin and Madhmuti watersheds in district SYED TASADUQ QADRI 2020.09.18 12:33 I attest to the accuracy and integrity of this document 2 Bandipora. Prior to the constitution of WUCMA, a Comprehensive Management Action Plan (CMAP) for the conservation and development of Wular Lake and its associated ecosystems was prepared by M/s Wetlands International, South Asia, New Delhi in 2007.
3. The Wular Conservation and Management Authority (WUCMA) soon after its creation started consolidation of Wular boundary on priority. The process Wular demarcation was entrusted to Forest Demarcation Division Srinagar Jammu & Kashmir Forest Department Based on satellite imageries obtained from National Remote Sensing Agency (NRSA) and revenue records, the department of Environment, Ecology & Remote Sensing prepared digitized boundary list of Wular lake using GIS/GPS/Remote Sensing technology followed with ground truthing. This boundary line was duplicated in its physical form on the ground in form of concrete boundary pillars by Forest Demarcation Division in accordance with demarcation rules of erstwhile Jammu & Kashmir Forest Act. Accordingly 836 km boundary line was delineated with the help of serially numbered 1159 boundary pillars of which 100% boundary line- demarcation stands completed. The description as well as GPS location of all these 1159 boundary pillars stands recorded and compiled. Survey and Demarcation of Wular has been carried out as per the nine demarcation files and maps and besides "24 Masavies" obtained from Director Survey & Land Records. A demarcation Map has been generated by the Department of Environment & Remote sensing Govt of J&K based on recorded geo-locations of various boundary pillars. The total area of the Wular Lake water demarcation comes out to 130sqkm. The abstract of demarcation is given as under and map of geo-tagged boundaries is enclosed herewith as (Annexure-I).
Details of Boundary Pillars
From To Nos.
01. Ningli Saderkot Banyari Block 01 92 92
02. Ningli Hajin Plantation Block 93 253 161
03. Ningli Shahgund Plantation Block 254 361 108
04. Ningli Ningli Tarzoo Plantation Block 362 553 192
05. Ningli Aadipora Plantation Block 554 664 111
06. Ningli Ashtingoo Plantation Block 665 808 144
07. Ningli Wular Plantation Zalwan Block 809 1080 272
08. Ningli Mangipora Zalwan Block 1 79 79
Total 1159
Total demarcation area of Wular Lake : 130 Sq. Kms.
4. Municipal Committee Sopore has illegally dumped municipal solid waste within the demarcated area of Wular Lake and also carried out unauthorized construction in the said area. The delinquent department has carried out construction through R & B Division Sopore and published tender namely "Fencing of dumping site of Darnamabal Sopore" vide NIT No: 02 of R&B Sopore of 2020-2021 with site plan for said construction approved and vetted by Chief Executive Officer MC Sopore and Assistant Ex Engineer (R & B) Sub SYED TASADUQ QADRI 2020.09.18 12:33 I attest to the accuracy and integrity of this document 3 division Sopore. The said site has been taken up for construction without any formal transfer of land issued to M. C. Sopore. As per Government order No:
30 -Rev(s) of 2019 dated 05-03 2019 (Ref. State Administrative Council Decision No. 44/5/2019 dated 13-02- 2019) proposals for transfer of State/ Departmental land for various public purposes shall have to be processed and various Government authorities have been prescribed for transfer of land to Government departments for carrying out such developmental works. The relevant para said Government order is reproduced as under:-
In partial modification of Cabinet Decision No. 136/11/2009 dated 01.10.2009, it is hereby ordered that the proposals regarding transfer of State/Departmental land for various public purposes shall be processed for consideration/orders of the authorities as under:-
a) Government in the Revenue Department shall be competent to decide cases relating to transfer of state/departmental and exceeding 100 Canals and upto 500 Canals (free from encumbrances) to the state government department(s) for public purposes developmental programmes.
b) The Divisional Commissioner concerned shall be authorized to decide the cases relating to transfer of state/departmental land exceeding 10 Kanals and upto 100 Kanals (free from encumbrances) to the state government department(s) for public purposes/ developmental programmes, within its territorial jurisdiction.
c) The Deputy Commissioner concerned shall be authorized to decide the cases relating to transfer of state and upto 10 Kanals (free from encumbrances) to the state government department (s) for public purposes/developmental programmes, within his territorial jurisdiction.
Pertinent to mention here that no such order has been issued in favour of MC Sopore by any authority in terms of above Government order for carrying out such development work. Therefore, the said construction is legal and can be treated as encroachment on other departmental land and responsible officer need to be punished for such delinquency with costs recovered from their salaries.
5. As per spot verification carried out by WUCMA field team, the said construction activity has been undertaken between boundary pillar 509 & 510 within the demarcated boundary of Wular Lake. Further as per the revenue extract issued by the Tehsildar Sopore in respect of land in question, the corresponding revenue entry record recognizes it as Forest Land. The said entry is a clear proof of ownership of same vesting with WUCMA/ Forest Department.
6. The Central Government has notified new rules for conservation and management of wetlands namely "Wetlands (Conservation and Management) Rules, 2017" in exercise of the powers conferred by section 25, read with sub- section (1) and clause (v) of sub-section (2) and sub section (3) of section 3 and section 23 of the Environment (Protection) Act, 1986. These rules are applicable to Wular Lake as per section 3 of said rules. The said rule states as under:
3. Applicability of rules.-These rules shall apply to the following wetlands or wetlands complexes, namely:-
(a) Wetlands categorised as 'wetlands of International importance' SYED TASADUQ QADRI under the Ramsar Convention;2020.09.18 12:33 I attest to the accuracy and integrity of this document 4
(b) wetlands as notified by the central Government, State Government and Union Territory Administration: Provided that these rules shall not apply to the wetlands falling in areas covered under the Indian Forest Act, 1927, the Wild Life (Protection) Act, 1972, the Forest (Conservation) Act, 1980, the State Forest Acts, and the Coastal Regulation Zone Notification 2011 as amended from time to time, Wular lake being designated Ramsar Site and listed up at S.No 26 of Schedule of Wetlands notified under Rule 3(i), therefore, comes under the purview of above cited rules.
The Wetland Management and Conservation Rules prohibit certain activities in scheduled and notified Wetlands which are laid down in Rule 4 of said Rules. The said rule states as under:
4. Restrictions of activities in wetlands.- (1) The wetlands shall be conserved and managed in accordance with the principle of wise use as determined by the Wetlands Authority. (2) The following activities shall be prohibited within the wetlands, namely,-
(i) Conversion for non-wetland uses including encroachment of any kind;
(ii) Setting up of any industry and expansion of existing industries;
(iii) manufacture or handling or storage or disposal of construction and demolition waste covered under the Construction and Demolition Waste Management Rules 2016, hazardous substances covered under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 or the Rules for Manufacture Use, Import, Export and Storage of Hazardous Microorganisms Genetically engineered organisms or cells, 1989 or the Hazardous Wastes (Management Handling and Transboundary Movement) Rules, 2008; electronic waste covered under the E-Waste (Management) Rules, 2016;
(iv) Solid waste dumping:
(v) Discharge of untreated wastes and effluents from industries, cities, towns, villages and other human settlements;
(vi) Any construction of a permanent nature except for boat jetties within fifty metres from the mean high flood level observed in the past ten years calculated from the date of commencement of these rules; and
(vii) poaching.
7. In violation of Wetland Rules supra, Municipal Council Sopore started dumping solid waste in the Wular Lake and also started construction by tendering work for fencing of dumping site, taking advantage of COVID-19 restrictions. As the said activity was in violation of Rule 4(i) of Wetland (Conservation & Management) Rules, 2017 read with Section 15 & 17 of EPA 1986 rules, WUCMA took cognizance of said violation and issued Notice to Executive officer Municipal Committee Sopore on 17-03-2020 under Section 19 (b) of Environment Protection Act, 1986 to stop the illegal activity. Despite issuance of notices, the delinquent agency still proceeded ahead with the illegal dumping and construction at the site. Since the municipal committee did not stop the work despite notice and kept violating the provisions of Act Supra, the authority submitted the case to Regional Director Pollution Control Board vide no Coord/WM/WUCMA/2020/41-42 Dated: 29-05-2020 Dated: 29-05- 2020 to initiate legal action against the violators as an authorized/empowered authority under Environment Protection Act, 1986.
8. In pursuance of WUCMA Communication, the Regional Director, Kashmir Pollution Control Board issued Notice to Executive Officer, Municipal Council Sopore to showcase within 15 days as to why the instant case may not be SYED TASADUQ QADRI 2020.09.18 12:33 I attest to the accuracy and integrity of this document 5 recommended to the competent authority of JKPCB for levying Environmental Compensation on his organization for brazen violation of MSW rules and Hon'ble National Green Tribunal directions (Copy of notice enclosed as Annexure- X). Despite issuance of Notice from Pollution Control Board, the delinquent agency still did not pay any heed and proceeded ahead with its construction activity (Photos of fencing and dumping of Waste are enclosed as Annexure-XI).
9. In PIL No. 345/2006 titled "Kashmir Environmental Protection Vs State of J&K & ors", Hon'ble High Court has prohibited all types of construction activities within the demarcated area of Wular Lake. The order race as under:
"We further direct that no construction in the demarcated area shall be permitted by any Authority without specific orders from this Court."
Keeping in view the above WUCMA vide its letter no.
Coord/WUCMA/WM/2020-21/118-22 Dated: 07-07-2020 informed delinquent agencies that the said construction work is a violation of Hon'ble High Court order Supra and concerned officers viz Director, Urban Local Bodies Srinagar, Executive Engineer, R&B Sopore & Chief Executive Officer, Municipal Committee Sapporo were directed to immediately cease all operations forthwith within the Wular demarcated area pending further orders from Hon'ble High Court. Copy of Hon'ble High Court order and relevant Notice issued to violating agencies are enclosed herewith as Annexure-XII.
10. In the light of the aforesaid, it is submitted that the land in question is a Wular demarcated Land as revealed from Toposheets, Wular demarcation records and revenue extract of Tehsildar Sopore. The delinquent agency namely M.C. Sopore and R&B Division Sopore have encroached upon Wular Land and have started construction of dumping site in gross violation of Wetland (Conservation Management) Rules, Hon'ble High Court orders, Hon'ble National Green Tribunal orders, and Solid Waste Management Rules. Therefore it is prayed that the said activity be stopped forthwith and directions be issued to concerned departments to restore the said land to WUCMA in its original position. Besides, delinquent offices be awarded exemplary punishment for violating environmental legislations so that Wular Lake which is a Lake of International importance and one of the Ramsar site is preserved please."
2. In view of the seriousness of the issue, we direct the Municipal Committee, Sopore, to take steps for removal of municipal Solid Waste forthwith which has been dumped within the demarcated area of the Wular Lake. The Municipal Committee, Sopore, shall place on record the site plan, the location of the dumping site before us, before the next date of hearing.
3. We shall also be informed with regard to the notification of the Solid Waste Management Bye-Laws by the Municipal Committee and the fines collected thereunder.
4. The respondent no. 8 shall inform this Court about the steps which can be taken for earmarking the boundary of the Wular Lake in the manner SYED TASADUQ QADRI 2020.09.18 12:33 I attest to the accuracy and integrity of this document 6 in which it is required to be done and shall inform us before the next date. The respondent no. 8 shall examine the steps taken for marking the boundaries of the Dal Lake in Srinagar and to see whether similar steps are required to be taken and could be replicated qua the Wular Lake as well.
5. Let copy of the writ petition, reply filed by respondent no. 8 be made available to Mr. Faizan-ul-Haq Iqbal, Secretary, District Legal Services Authority, Baramulla, within three days from today as also a copy of the order passed today, who shall verify the position and submit a report before us before the next date of hearing.
6. Mr. B. A. Dar, learned Sr. AAG, and Mr. M. A. Chashoo, learned AAG, shall coordinate with the Registrar General with regard to Court visit.
7. The Registry shall send copy of this order to all learned counsel for the parties through electronic mode.
8. List on 23rd September, 2020.
(PUNEET GUPTA) (GITA MITTAL)
JUDGE CHIEF JUSTICE
SRINAGAR
14.09.2020
TASADUQ
SAB:
SYED TASADUQ QADRI
2020.09.18 12:33
I attest to the accuracy and
integrity of this document