National Green Tribunal
Tushar Goswami vs Union Of India Through The Secretary ... on 30 October, 2023
Item No. 06 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 203/2023
Tushar Goswami Applicant
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 30.10.2023
CORAM: HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Saurabh Tiwari, Adv. for Applicant (Through VC)
Respondent: Mr. K.M. Nataraj, ASG with Mr. Amit Tiwari, Adv. for Varanasi
Development Authority (Through VC)
Mr. Manoj Singh, ACS (Environment) (Through VC)
Mr. A.K. Sharma, Member Secretary, UPPCB (Through VC)
Mr. Bhawar Pal Singh Jadon, Mr. Chetan Jadon, Mr. Hardik Saxena,
Advs. for the State of UP
Mr. Gigi. C. George, Adv. for NMCG
Mr. Rahul Pratap, Adv. for MoEF & CC
Mr. Arvind Kumar, Adv. for UPPCB
Mr. Saurabh Balwani, Adv. for CPCB (Through VC)
Ms. Anuradha Mishra, Adv. for R - 11
Mr. R. Chandrachud, Mr. Ashok Panigrahi & Mr. S. Vinay Ratnakar,
Advs. for R - 12
ORDER
1. The issue involved in this Original Application is in respect of setting up of Tent City project in the riverbed/by the river side of Ganga at Varanasi for commercial purpose and the allegation is that the project is detrimental to flora and fauna and results in untreated sewage being directly discharged into river Ganga and the same being set up in violation of "The River Ganga (Rejuvenation, Protection and Management) Authorities order, 2016".
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2. The Tribunal considering the allegation of serious violation of environmental norms, by order dated 17.03.2023 had constituted a seven member joint Committee to, inter-alia, ascertain legality of the project, impact of the project on the Turtle Wildlife Sanctuary, river Ganga and integrity of the flood plain and the mandate of the Ganga order, 2016 and any other incidental issue like Liquid and Solid Waste Management, power supply and sources etc.
3. The Tribunal by order dated 29.05.2023 had considered the joint Committee report dated 24.05.2023 which ex facie show number of violations in setting up of Tent City. The two Project Proponents named in the report were impleaded as respondent no. 11 and 12 and were noticed.
4. On 21.09.2023, when the matter was taken up, some of the respondents had sought further time to file the report. Hence, the case was adjourned.
5. The report/reply filed by respondent reveals that setting up of Tent City in the bank of river Ganga at Varanasi is a seasonal activity and for the year 2022 (2022-2023), the Project Proponent had started the temporary construction on 01.12.2022. The city was made operational on 16.01.2023 and has been closed down on 31.05.2023 before the arrival of monsoon and the structure has been removed. Now, the process is on for setting up the Tent City for the year 2023 (covering period from 2023- 2024).
6. Hence, the issue relating to the violation of environmental norms and non-compliance of procedure and remedial action for both past and present is required to be considered.
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7. The report of NMCG filed on 27.10.2023 refers to various provisions of "The River Ganga (Rejuvenation, Protection and Management) Authorities Order, 2016" and specially makes reference to paragraph 6 of the order, 2016 which reads as under:-
"6. Prevention, control and abatement of environmental pollution in River Ganga and its tributaries.- (1) No person shall discharge, directly or indirectly, any untreated or treated sewage or sewage sludge into the River Ganga or its tributaries or its banks:
Provided that where a local authority does not have, on the date of commencement of this Order, sewerage scheme or infrastructure for collection, storage, transportation and disposal of sewage or sewage sludge or such infrastructure is not functional on the said date in an area abutting the River Ganga or its tributaries, every such local authority shall, within a period, specified by National Mission for Clean Ganga from the date of commencement of this Order, develop such infrastructure or make such infrastructure functional, as the case may be, for collection, storage, transportation and disposal of sewage in the territorial area of the local authority.
(2) No person shall discharge, directly or indirectly, any untreated or treated trade effluent and industrial waste, biomedical waste, or other hazardous substance into the River Ganga or its tributaries or on their banks:
Provided further that where an industry or industrial area management does not have, on the date of commencement of this Order, industrial effluent treatment scheme or infrastructure for collection, storage, transportation and disposal of trade effluents industrial waste, bio-medical waste, or other hazardous substance, etc. or such infrastructure is not functional on the said date in an area abutting the River Ganga or its tributaries, every such industry or industrial area management shall, within a period so specified by the National Mission for Clean Ganga from the date of commencement of this Order, develop such infrastructure or make such infrastructure functional, as the case may be, for collection, storage, transportation and disposal of trade effluent and industrial waste, bio-medical waste, or other hazardous substance in the jurisdiction of the industry or industrial area management.
(3) No person shall construct any structure, whether permanent or temporary for residential or commercial or industrial or any other purposes in the River Ganga, Bank of River Ganga or its tributaries or active flood plain area of River Ganga or its tributaries:
Provided that in exceptional circumstances like natural calamities or religious events at traditional locations, temporary structures can be raised after prior permission of the National Mission for Clean Ganga acting through the State Ganga Committee and the District Ganga Committee: Provided further that in case any such construction has been completed, before the commencement of this Order, in the River Bank of River Ganga or its tributaries or active flood plain area of River 3 Ganga or its tributaries, the National Mission for Clean Ganga shall review such constructions so as to examine as to whether such constructions are causing interruption in the continuous flow of water or pollution in River Ganga or its tributaries, and if that be so, it shall cause for removing them.
(4) No person shall do any act or carry on any project or process or activity which, notwithstanding whether such act has been mentioned in this Order or not, has the effect of causing pollution in the River Ganga.
(5) It shall be the duty of the National Mission for Clean Ganga, every Specified State Ganga Committee or specified District Ganga Protection Committee, local authority and all other authorities and persons to disseminate widely and bring to public notice, using various means, information captured in reports and the aforesaid measures in the local language in every village, town, city and other areas abutting River Ganga and its tributaries."
8. The report further makes it clear that there is no provision in the authorities order for grant of post fact approval and that prior approval from the NMCG is mandated in terms of paragraph 42 of the Authorities Order, 2016. The report refers to the communication dated 26.10.2023 sent by the NMCG to VDA, a copy of which has been handed over during the course of argument. The said communication reads as under:-
"1. This has reference to the application referred at (a) above and the clarifications submitted vide letter referred at (e) above.
2. The application and the clarifications provided have been examined and it is to convey that:
(a) Application for the 'Prior-Approval for the project "Development of Tent City in Varanasi has been made after the project has already been implemented at site in year 2022. The application for the year 2022 has accordingly not been considered as there only exists provision for 'Prior-approval in the Ganga Authority Notification 2016, cited at Ref. c) above. The application has accordingly not been examined further.
(b) The prior approval applications in this matter will be considered on year on year basis. VDA may accordingly seek prior-approval on annual basis while also submitting the Environmental Impact Assessment of the previous year implementation.
(c) For the consideration of the application for the year 2023 i. VDA to provide Environmental Impact Assessment study and flood plain demarcation notification.89219/2023 4
ii. VDA may develop the project in the proposed location on a limited scale (not more than 40% of the VDA proposed tent city area & cottages) that too with temporary Istructures, which are not detrimental to the environment, subject to the conditions that
(a) No-Objection-Certificate taken the State Ganga Committee and District Ganga Committee and furnished to NMCG, as per para 6(3) of the Authority Order, 2016
(b) the proposed Tent City shall comply with provisions of Water Act (1974) and Environment Protection Act 1986, as amended,
(c) No waste from the project shall be disposed of into to river Ganga or its flood plains,
(d) development of emergency preparation and compliance to the and
(e) compliance with the conditions imposed by various agencies like VDA, UPPCB, VNN, Fire & Safety department. D/o Irrigation etc.
(f) these temporary structures shall be removed and that status- ante is restored within a period of 6 months or earlier, from the date the permission is granted, as the case may be. iii. VDA may also propose to develop such temporary facility outside the active flood plains, duly notified by the Government and identifiable on the ground and subject to the conditions that
(a) plan for putting up tents outside active floodplain including coverage proposed is submitted,
(b) flood plain demarcation duly notified by State Govt be furnished to NMCG,
(c) the proposed Tent City shall comply with Environment Protection Act 1986, as amended,
(d) No waste from the project shall be disposed of into to river Ganga or its flood plains,
(e) development of emergency preparation and compliance to the and
(f) compliance with the conditions imposed by various agencies like VDA, UPPCB, VNN, Fire & Safety department, D/o Irrigation etc.
3. NMCG reserves the right to revoke the permission granted, without assigning any reasons.
4. This issues with the approval of DG, NMCG."
9. The communication is not very happily worded and it is difficult to accept the submission of Counsel for NMCG that by this communication, conditional permission to set up Tent City for the year 2023 (2023-2024) has been granted.
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10. Learned Counsel appearing for NMCG has submitted that the position in this regard will be duly clarified by filing a fresh report. He also seeks time to place on record the proposed plan for setting up the Tent City for the year 2023, its exact location and distance from the river bank and the factual position as to whether the Tent City is being set up on the prohibited area/flood plain zone.
11. Shri K.M. Nataraj, Learned ASG appearing for VDA has also submitted that once the detailed report of NMCG comes on record, the position will become clear to the Tribunal.
12. Reply affidavit on behalf of respondent no. 9, Varanasi Development Authority has been filed stating that the temporary construction was started on 01.12.2022. The Tent City was made operational on 15.01.2023 and has been closed on 31.05.2023 before the arrival of the monsoon and entire structure has been removed. Respondent No. 9 has denied setting up the Tent City in the riverbed and has taken the plea that the same was set up approximately 60 mtrs. away from the flow of river Ganga.
13. Reply on behalf of Respondent No. 11, M/s Praveg Communication (India) Limited has been filed taking the same stand as has been taken by respondent no. 9. Further stand has been taken that Kachhua Wildlife Sanctuary was de-notified by notification dated 17.03.2020.
14. Respondent No. 12 has filed separate reply taking the stand that CTE dated 12.01.2023 was issued by UPPCB/Respondent No. 10 for New Unit/Expansion/Diversification under Water (Prevention and Control of pollution) Act, 1974 for the period 09.01.2023 to 08.01.2028 and CTO was also issued by Respondent No. 10 under the Air (Prevention and Control of Pollution) Act, 1981.
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15. So far as the past violation is concerned, Shri Manoj Kumar, ACS for State of UP has submitted that action has been initiated to impose fine at the rate of Rs. 12,500 per day. He is directed to place on record the complete details with full particulars of the action initiated against the private respondents for past violations by submitting his affidavit in this regard within two weeks.
16. Let the reply/further affidavit in terms of the above directions be filed by the concerned respondents within two weeks.
17. List this matter on 30.11.2023.
Prakash Shrivastava, CP Sudhir Agarwal, JM Dr. A. Senthil Vel, EM October 30, 2023 Original Application No. 203/2023 SN 7