BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
Original Application No. 04/2015 (CZ) (M.A. No. 401/2017)
Decided On: 13.12.2021
Kishore Samrite
Vs.
Union of India and Ors.
Hon'ble Judges/Coram:
Adarsh Kumar Goel, J. (Chairperson), Sheo Kumar Singh, J. (Member (J)), Sudhir Agarwal, J. (Member (J)), Dr. Nagin Nanda, Member (E) and Dr. Arun Kumar Verma, Member (E)
Counsels:
For Appellant/Petitioner/Plaintiff: Vivek Choudhary, Advocate
For Respondents/Defendant: Om Shankar Shrivastava, Parul Bhadoria, Sachin K. Verma, Ajay Gupta, Rohit Sharma, Dharamveer Sharma and Saghosh Bhamore, Advocates
ORDER
1. Prayer in this application is for removal of encroachment around seven water bodies, namely, Motil Tal, Devi Ka Talab, Darri Talab, Talab situated at village Yagkhuri, Talab situated at village Budi, Talab situated at village at Nazul Block and Dhobi Talab situated at Nazul Block in Balaghat city.
2. According to the applicant, plots are being sold out of the land which is part of the ponds, in violation of the National Water Policy for Restoration of Water Bodies, 2002. The applicant represented to the authorities but no action has been taken. There is also pollution of the water bodies and the State has failed to perform its responsibility under the Public Trust Doctrine laid down in M.C. Mehta v. Kamal Nath & Ors (1997) 1 SCC 388.
3. The application was filed on 23.01.2015 and has been pending for the last six years. We may refer to the pleadings filed by the parties and significant orders passed by this Tribunal so far before taking a decision on the issue raised.
4. On 06.02.2015, the Tribunal admitted the petition and directed to issue notice to the respondents-UOI, CGWB, State of MP, MP State PCB, Collector, Balaghat, Municipal Corporation, Balaghat, Town and Country Planning Department, MP. The Tribunal also added Chief Secretary and Principal Secretary, Housing and Environment, M.P., as parties. The authorities were directed to submit a report with regard to status of environmental damage and steps taken to protect the environment.
5. The State of MP in its reply filed on 30.03.2015 gave details of the seven water tanks. It was stated that in four of the water tanks, there was no discharge of sewage and water quality was good but in the three water tanks, there was construction of police quarters since 2000. In Devi Talab, there was permanent construction on a part and construction was being made on the remaining for which proceedings were taken by the Revenue Department. Permission for backfilling of the talab was granted in the interest of general public on 09.11.2001. For Darri Talab, there was encroachment by jhuggi jhopadies and State Government has given lease (patta) as per Rajeev Gandhi Mission. The water bodies are shown as per Master Plan dated 23.05.2006. Possibility of discharge of sewage in the remaining area of Devi and Darri water tanks was not ruled out as there was human settlement in the area where sewage is generated. Details of the tanks are as follows:
6. Vide order dated 11.08.2015, this Tribunal impleaded Environmental Planning and Co-ordination Organization (EPCO) as party as the said organization was concerned with protection of water bodies in the State of MP.
7. On 17.12.2015, the Tribunal dealt with M.A. No. 714/2015 in OA 04/2015(CZ) filed by 73 persons to intervene in the matter to object to the proceedings initiated by Municipal Council, Balaghat against the said persons. However, the Tribunal directed the Collector, Balaghat to proceed in accordance with the directions of the Hon'ble Supreme Court in Jagpal Singh & Ors. Vs. State of Punjab (2011) 11 SCC 396 and orders of the MP High Court, Gwalior Bench in Shri Rinkesh Goyal Vs. State Government also reported in 2011 (2) M.P.H.T 519 (DB) directing as follows:
"(1) That, in each divisional level a Committee be constituted under the Chairmanship of Revenue Commissioner of the division to monitor the effective implementation of the water conservation schemes introduced by the Government for the aforesaid purpose.
(2) The Committee shall also ensure that there should not be any encroachment over the land of ponds, tanks and lakes, and if, there is any encroachment that be removed immediately.
(3) The State Government shall take effective steps in regard to water harvesting and ground water level management so the problem of reducing the level of ground water could be tackled.
(4) A copy of the order be sent to the Chief Secretary of the State and also the Secretary, Revenue Department of the State."
8. Reply of EPCO was considered vide order dated 22.04.2016 wherein list of 270 water bodies was given. The Tribunal directed EPCO to submit district-wise report. Vide order dated 01.10.2016, the Tribunal considered the grievance of illegal conversion of pond land by the District Collectors and directed:
"We make it clear that notwithstanding any ownership in the area of the lake no construction or land conversion shall be permitted by the District Collector/State Government."
9. On 16.11.2016, the Tribunal noticed general problem of encroachment of catchment areas of water bodies in rural areas, contrary to the mandate of Functioning of Lake Conservation Guidelines 2010 of the MoEF&CC. Accordingly, the Tribunal directed the State of MP as well as UOI to follow the said guidelines.
10. Vide order dated 10.04.2017, after noting the orders of the Hon'ble Supreme Court and the MP High Court and also orders for survey of all water bodies in the State, the Tribunal directed the Chief Secretary, MP to coordinate with the Collectors for compliance of law. The Tribunal also referred to the directions of the Hon'ble Supreme Court in M.K. Balakrishnan and Ors. vs. Union of India: (2017) 7 SCC 805, directing that Wetlands (Conservation and Management) Rules, 2010 will apply to the wetlands compiled in the Atlas for protecting the wetlands and areas adjacent thereto, even in absence of notification of a wetland. Vide order dated 19.02.2019 the State Government was directed to give information about the water bodies in the State and status of compliance of environmental norms in relation thereto.
11. On 25.05.2017, the District Collector, Balaghat filed a compliance report about demarcation of the water bodies. As per reply of the Municipal Council, Balaghat dated 29.11.2017, no construction is permitted within 30 meters from FTL point of the pond but 147 buildings had been constructed near Devi Talab since many years. Demarcation report in respect thereof is also annexed. EPCO in its report dated 28.03.2019 has furnished information received from 26 districts.
12. To complete the record, we may also note that the original applicant was replaced by Suresh Kochar, vide order dated 04.02.2016, who died on 27.08.2020. IA No. 76/2021 seeks substitution of his legal heirs, Yatharth Kochar, son of Lt. Mr. Suresh Kochar, Niswarth Kochar, son of Lt. Mr. Suresh Kochar, Chinta and S. Matta daughter of Lt. Mr. Suresh Kochar, all residents of Ward No. 20, Main Road, Balaghat, M.P.-481001 as applicants. The said application is allowed, as prayed. The registry may correct memo of parties accordingly.
13. M.A. No. 823/2015 has been filed on behalf of the applicant for taking on record documents filed which are orders of different courts about the rival disputes of private individuals in respect of lands around Devi Talab. M.A. No. 824/2015 filed on behalf of M/s. Rishabh Developers and Builders who is aggrieved with the direction of stopping constructions within the pond and adjoining lands is that the said pond is having contaminated water and since it was a health hazard, Master Plan has been amended on 26.05.2006 changing the land use of the pond against which W.P. No. 1821/2010 was dismissed by the MP High Court on 28.04.2010 which was upheld by the Division Bench of the High Court in W.A. No. 646/2010. Thus, the change of land use has attained finality. Title dispute of one Umrao Bi was decided by the Civil Court and finally by the High Court vide judgment dated 17.11.1980 against which SLP was dismissed by the Hon'ble Supreme Court on 09.12.1993. Reference has also been made to the judgment of the M.P. High Court dated 22.08.2002 in W.P. No. 4434/2003 deciding a second appeal between rival claimants and further orders in the said matter. It was also observed that the State Government was not the owner of the land in respect of 16.14 acres in khasra no. 319 of Balaghat town. It is further stated that W.P. No. 6645/2002 filed by Suresh Kochar against order of the Board of Revenue, MP dated 24.08.2002 was dismissed by the High Court on 13.10.2010. Master Plan has been prepared under provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 as land of the water body was unfit for human activities and water was unfit for consumption as drinking water, vide notification dated 03.05.2006.
14. We have heard learned Counsel for the parties and considered the issue.
15. At the outset, we make it clear that this Tribunal is not a forum to go into correctness or otherwise of the decisions already taken in any other judicial proceedings. Thus, scope of proceedings before this Tribunal is to deal with the environmental issues. With regard to individual issues, without expressing any opinion in these proceedings, it is made clear that any party is free to take remedies in accordance with law.
16. The issue raised in the present proceedings as shown by the orders earlier passed is general for protection of water bodies. This Tribunal has already dealt with such issue vide order dated 18.11.2020 in OA No. 325/2015, Lt. Col. Sarvadaman Singh Oberoi vs. Union of India & Ors. and order dated 25.11.2021 in OA 351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors. Directions have been issued to the effect that having regard to role of water bodies in eco-system, the same have to be protected by the State under the Public Trust Doctrine. Order dated 18.11.2020 in OA No. 325/2015 is extracted below for ready reference:
"1. The issue for consideration in the original application was identification, protection and restoration of water bodies in Gurgaon in Haryana. However, in the light of proceedings which took place, the scope of the application was extended to the entire State and then to the entire country, in the interest of protection of environment. This became necessary to give effect to the law laid down by the Hon'ble Supreme Court to which reference will be made later.
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8. Accordingly, a consolidated report has been filed by the CPCB on 29.10.2020 in two parts. Part A deals with the aspect of plans for restoration of water bodies and status of their execution while part B deals with the status of compliance of direction relating to water harvesting. The CPCB report points out the need for making a proper and centralized inventory of water bodies, and assessment of their water quality; the absence of a single nodal agency to oversee the management of restoration of polluted water bodies, and water harvesting; and recommends that the relevant Central Ministries, especially MoJS, play an increased and major role in implementation and oversight.
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11. It will be appropriate to reproduce the observations and suggestions of the CPCB:-
"2.5 Observations and suggestions of CPCB
* 23 States & 4 UTs have provided information as per the format circulated by CPCB.
* Based on the information received from the States/UTs, there are Lakes- 2,080 (11 States and 2 UTs), Ponds-1,69,523 (13 States and 4 UTs), Tanks- 1,699 (1 State), Others like pynes, aahars, reservoirs etc. - 1,51,440 (3 States), Total number of water bodies identified as - 4,13,911 (25 States and 6 UTs), Total number of identified water bodies selected for restoration- 1,32,080 (17 States and 02 UTs), Total number of identified water bodies already restored- 3,20,903 (13 States and 3 UTs), Total number of identified water bodies presently under restoration- 40,543 (14 States and 2 UTs).
* It appears, number of water bodies identified by the States/UTs as reported is not scientific and therefore States/UTs have to carry out proper inventory of water bodies using Geological Survey Maps of India (reconnaissance survey) or using any other available technologies like Remote Sensing.
* For prioritization of all the identified water bodies is possible only after assessment of water quality of all the water bodies. Presently, water quality of water bodies are monitored by the State Water Resources Department/Agricultural Department/Fisheries Department/Public Health Engineering Departments apart from Central Water Commission (CWC), Central Pollution Control Board (under National Water Quality Monitoring Programme). Therefore, all the water bodies to be assessed for water quality for prioritisation and for restoration. Also, there is a need to pool all the water quality data under/NOIA -WRIS Portal under National Water Informatics Centre as it facilitates policy decision.
* Presently, various departments in the States/UTs are custodians of water bodies therefore there is a need that all the States/UTs need to designate a single agency' as a nodal agency to ensure restoration of all polluted stagnant water bodies in the respective State/UT in consultation with the concerned departments. Such a nodal agency also may co-ordinate with the respective State Pollution Control Board (SPCB) in the State or Pollution Control Committee (PCC) in the respective UT for ensuring timely compliance to Hon'ble NGT directions in the matter.
* Presently, States Governments/UT Administrations are required to constitute Wetland Authority in the respective States/UTs under the Wetland (Conservation and Management) Rules, 2017. The wetland authority may be given responsibility of restoration of water bodies or a nodal agency or a separate body may be designated as done in case of Haryana (Haryana Pond Waste Water Management Authority), Madhya Pradesh (The Environmental Planning and Coordination Organization (EPCO) and Mizoram (Irrigation and Water Resource Department).
* Presently, water bodies are undergoing restoration of water bodies under the various schemes like financial support of Ministry of Jal Shakti or State schemes (like Mission Kakatiya in case of Telangana). Therefore, Ministry of Jal Shakti being nodal Ministry for Water Resources in the country, there is a need to integrate with the programmes such as 'National Lake Conservation Programme, National Wetland Conservation Programme, Ministry of Water Resources Programmes like Repair, Renovation & Restoration of Water bodies with Domestic/External Assistance which are undertaken by Government of India, Central Sector Schemes like AMRUT, Smart City, MGNREGA or any other programmes for restoration of water bodies in the country."
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16. We find that the steps taken so far can hardly be held to be adequate. As already noted, protection of water bodies serves great public purpose and is essential for protection of the environment. It helps not only aesthetics but also water availability, aquatic life, micro climate, recharge of ground water and maintaining e-flow of the rivers. Under the Public Trust Doctrine, the State has to act as trustee of the water bodies to protect them for the public use and enjoyment for current and future generations. We may note the observations of the Hon'ble Supreme Court on the subject which are as follows:
i. State of T.N. v. Hind Stone, (1981) 2 SCC 205, at page 212:
"6. Rivers, Forests, Minerals and such other resources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation."
ii. Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496, at page 500:
"13. It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution."
iii. T.N. Godavarman Thirumulpad v. Union of India, (2002) 10 SCC 606, at page 628:
"... ... ...
33. ... As was observed by this Court in M.C. Mehta v. Kamal Nath our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership."
iv. Intellectuals Forum v. State of A.P., (2006) 3 SCC 549, at page 574:
"75. In M.C. Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388, Kuldip Singh, J., writing for the majority held:
"34. Our legal system ... includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. ... The State as a trustee is under a legal duty to protect the natural resources."
76. The Supreme Court of California, in National Audubon Society v. Superior Court of Alpine Country also known as Mono Lake case summed up the substance of the doctrine. The Court said:
"Thus, the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust."
This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinise such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources [Joseph L. Sax "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol. 68, No. 3 (Jan. 1970) pp. 471-566]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine [ibid]:
1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
2. the property may not be sold, even for fair cash equivalent;
3. the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources."
v. Jitendra Singh v. Ministry of Environment & Ors.,
".... .... ...
20. .... Waterbodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal."
17. In NGT order dated 27.08.2020 in OA 351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors., it was observed:
"... .... ... ...
8. One of the serious challenges is solid and liquid waste management, apart from encroachments. There are binding directions of the Hon'ble Supreme Court in Almitra H. Patel Vs. Union of India & Ors (2000) 2 SCC 679 and Paryavaran Suraksha vs. Union of India (2017) 5 SCC 326 on the subject of scientific management of solid waste and sewage/effluents in accordance with the statutory provisions of the Water (Prevention and Control of Pollution) Act, 1974, ("Water Act') Air (Prevention and Control of Pollution) Act, 1981, ("Air Act) and waste management rules framed under the Environment (Protection) Act, 1986 ("EP Act'). There is large scale non-compliance of the said statutory provisions which has led this Tribunal to consider the issue of river pollution in OA No. 673/2018, News item published in "The Hindu" authored by Shri Jacob Koshy Titled "More river stretches are now critically polluted: CPCB" in view of acknowledged data of 351 polluted river stretches in the country. Apart from the said issue, large scale failure has been found in the matter of solid waste management as repeatedly recorded in O.A. No. 606/2018. The Chief Secretaries of all the States/UTs were required to remain present in person before this Tribunal for interaction and further planning. In O.A. No. 325/2015, Lt. Col. Sarvadaman Singh Oberoi v. UOI & Ors., the Tribunal has considered the issue of restoration of water bodies. In Original Application No. 593/2017, Paryavaran Suraksha Samiti & Anr. v. UOI & Ors., the issue of untreated sewage or effluent being discharged in water bodies have been taken up for consideration. There are several other matters dealing with the such issues, including coastal pollution, pollution of industrial clusters etc.
9. There is discussion in the media about inadequacy of monitoring of action for restoration of lakes, wetlands and ponds which is certainly necessary for strengthening the rule of law and protection of public health and environment1. Several directions have been issued by the Hon'ble Supreme Court in M.K. Balakrishnan and Ors. v. UOI & Ors, (2017) 7 SCC 805. "
18. We also note that the Ministry of Urban Development, Government of India, Central Public Health and Environmental Engineering Organization (CPHEEO) has issued an advisory on "Conservation and Restoration of Water Bodies in Urban Areas"2 in August, 2013 which need to be followed. The matter was also considered by the Standing Committee on Water Resources (2015-16), Sixteenth Lok Sabha. Its Tenth Report has been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation under the heading "Repair, Renovation and Restoration of Water Bodies-Encroachment on Water Bodies and Steps Required to Remove the Encroachment and Restore the Water Bodies"3 in August, 2016. Further, the "Guidelines for the Scheme on Repair, Renovation and Restoration (RRR) of Water Bodies under PMKSY (HKKP)"4 have been published by the Ministry of Water Resources, River Development and Ganga Rejuvenation, Govt. of India in June, 2017. The said report also provides useful material to be looked into by the enforcement agencies.
19. As regards, report of the CPCB on the subject of rain water harvesting, it appears that CPCB has not appreciated the direction of this Tribunal on the subject. While rain water harvesting may be required in all buildings and other places in urban areas, in the present context, the Tribunal has directed setting up of such facilities in sub water sheds along ponds for utilization of surplus rain water for restoration of the ponds which have become dry and for augmenting other ponds.
20. There is, thus, need for continuous planning and monitoring at National, State and District levels. Suggestions and observations of CPCB and the Oversight Committee need to be acted upon.
21. As suggested by the CPCB, a single agency needs to be set up in every State/UTs within one month. This work may either be assigned to the Wetland Authority of the State or the River Rejuvenation Committee or to any other designated authority such as the Secretary, Irrigation and Public Health/Water Resources. It is made clear that if the State Wetland Authority is to be assigned the task of protection of all water bodies, this task will be in addition to the normal functioning of the State Wetland Authority under the Wetland (Conservation and Management) Rules, 2017. Such nodal agency must call a preliminary meeting on the subject with all the District Magistrates on or before 31.01.2021 to take stock of the situation and to plan further steps. Thereafter, a regular meeting may be held for periodic monitoring at the District level as well as the State level with the identified targets of proper and scientific identification and protection of all water bodies, assigning unique identification number, removing encroachments, preventing dumping of waste, maintaining water quality and restoration by taking other appropriate steps, involving the Panchayats and the community, utilizing the financial resources available from different sources. Steps taken need to be documented and compiled and reported to a central authority, preferably the CPCB. This Tribunal has already constituted a CMC to be headed by the Secretary, MoJS with the assistance of CPCB and other authorities to monitor remedial action for 351 polluted river stretches. Restoration of water bodies is also a connected issue which can be monitored by the same Committee atleast thrice a year at the national level.
Directions
22. Accordingly, we dispose of this application with following directions:
(i) All States/UTs may forthwith designate a nodal agency for restoration of water bodies, wherever no such agency has so far been so designated.
(ii) Under oversight of the Chief Secretaries of the States/UTs, the designated nodal agency may
a. Hold its meeting not later than 31.1.2021 to take stock of the situation and plan further steps, including directions to District authorities for further course of action upto Panchayat levels and to evolve further monitoring mechanism as well as Grievance Redressal Mechanism (GRM).
b. Submit periodical reports to the CPCB/Secretary Jal Shakti, Government of India. First such report may be furnished by 28.02.2021.
(iii) The CMC for monitoring remediation of 351 polluted river stretches, headed by the Secretary, MoJS may monitor the steps for restoration of water bodies by all the States periodically, atleast thrice in a year. First such monitoring may take place by 31.3.2021.
(iv) The CMC may give its action reports to this Tribunal in OA 673/2018 and first such report may be furnished preferably by 30.4.2021 by e-mail.
17. The order dated 25.11.2021 in OA 351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors. is extracted below for ready reference:
"1. The issue for consideration initially considered in this application was prevention of unscientific dumping of waste and encroachment of Hokersar Wetland, Wular Lake and Kreentchoo-Chandhara Wetland in the Union Territory of Jammu & Kashmir. By later orders, scope of consideration was extended to protection of all wetlands in the country in the light of observations of the Hon'ble Supreme Court that 2,01,503 wetlands that have been mapped by the Union of India should continue to remain protected on the same principles as were formulated in Rule 4 of the Wetlands (Conservation and Management) Rules, 2010. It was further observed that conservation of wetlands is of immense ecological importance. The Hon'ble Supreme Court did not appreciate that the Central Government was attempting to abdicate its responsibility under the Environment (Protection) Act, 1986 in favour of the State Governments.
2. Order of the Hon'ble Supreme Court dated 3.4.2017 in M.K Balakrishnan & Ors. v. Union of India & Ors. : (2017) 7 SCC 805 as follows:
"17. Be that as it may, for the reasons given below, we are compelled to direct that the Wetlands (Conservation and Management) Rules, 2016 should be notified on or before 30-6-2017. We are compelled to issue this direction since the matter has been pending with the Union of India for the last almost a year and there has to be some finality to the publication of the Rules. The comments/suggestions have been given by all stakeholders such as the State Governments including its organisations, individuals and civil society organisations. That being the position, there is obviously a great deal of interest in the Rules being formulated and notified. Under these circumstances, there is no justification why the Union of India should not have taken prompt action and constituted the Committee much earlier for the purposes of finalising the Rules. Finally, the conservation of wetlands is of immense ecological importance.
18. The learned counsel for the Union of India says that all efforts will be made to ensure compliance with this direction and to ensure that the Rules are notified on or before 30-6-2017. We are sure that both the Committee as well as the Union of India will take into consideration the comments and suggestions offered by the State Governments and its organisations, individuals and civil society organisations before taking a final decision.
19. With regard to the Central Wetlands Regulatory Authority, we are told that its term is expiring on 14-2-2017. We have been informed by the learned counsel for the Union of India that the Central Wetlands Regulatory Authority will be notified on 13-2-2017. The Union of India is bound by the statement made by the learned counsel for the Union of India, which statement has been made on instructions received by him from an officer of the Ministry of Environment, Forest and Climate Change.
20. In our order dated 31-1-2017 [Set out in paras 11 to 13, above.], we had required the Union of India to tell us the steps taken to preserve the 26 wetlands covered by Ramsar Convention, 1971. The affidavit that has now been filed by the Union of India merely gives the disbursal of amount made by the Union of India from time to time. What specific steps have been taken including how the funds made available have been utilised and what is the impact of those steps have not been adverted to. We must have specific details. We direct the Union of India to file an affidavit within four weeks positively giving required specific details.
21. The learned counsel for the petitioners has drawn our attention to an additional affidavit filed by the Union of India on or about 9-9-2014. The additional affidavit contains an information brochure "National Wetland Inventory & Assessment". This brochure indicates on p. 11 thereof that 2,01,503 wetlands have been mapped at 1:50,000 scale. All these wetlands have an area of more than 2.25 ha. As a first step, the "brief documents" with regard to these 2,01,503 wetlands should be obtained by the Union of India from the respective State Governments in terms of Rule 6 of the Wetlands (Conservation and Management) Rules, 2010. We are told that obtaining these "brief documents" may take some time. We are inclined to grant adequate time for this purpose. The Union of India should follow this up with the State Governments and inform us of the time-frame on the next date of hearing.
22. The apprehension expressed by the learned counsel for the petitioners is that with the passage of time there is a possibility that some of the wetlands may disappear. On a reading of the information brochure, this apprehension is not unfounded.
23. Accordingly, we direct the application of the principles of Rule 4 of the Wetlands (Conservation and Management) Rules, 2010 to these 2,01,503 wetlands that have been mapped by the Union of India. The Union of India will identify and inventorise all these 2,01,503 wetlands with the assistance of the State Governments and will also communicate our order to the State Governments which will also bind the State Governments to the effect that these identified 2,01,503 wetlands are subject to the principles of Rule 4 of the Wetlands (Conservation and Management) Rules, 2010, that is to say:
"4. (1)(i) reclamation of wetlands;
(ii) setting up of new industries and expansion of existing industries;
(iii) manufacture or handling or storage or disposal of hazardous substances covered under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 notified vide S.O. No. 966(E), dated 27-11-1989 or the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms/Genetically Engineered Organisms or Cells notified vide GSR No. 1037(E), dated 5-12-1989 or the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 notified vide S.O. No. 2265(E), dated 24-9-2008;
(iv) solid waste dumping:
Provided that the existing practices, if any, existed before the commencement of these Rules shall be phased out within a period not exceeding six months from the date of commencement of these Rules;
(v) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements: Provided that the practices, if any, existed before the commencement of these Rules shall be phased out within a period not exceeding one year from the date of commencement of these Rules;
(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;
(vii) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specified in writing by the Authority constituted in accordance with these Rules."
24. The learned counsel for the Union of India has shown us a chart of proposals/brief documents that have already been received by the Union of India under Rule 6 of the Wetlands (Conservation and Management) Rules, 2010. The total number of wetlands covered in this document are 1683. Many of these proposals/brief documents received by the Union of India contain deficiencies which have already been identified in the document handed over to us. The Central Wetland Regulatory Authority will take up the rectification of deficiencies with the State Governments with promptitude and ensure that all these deficiencies are removed and complete proposals/brief documents are furnished within the next about one month so that the Central Wetlands Regulatory Authority is in a position to take a final decision with regard to these 1683 wetlands and their notification, if required, on or before 31-3-2017."
3. Further, vide order dated 04.10.2017, the Hon'ble Supreme Court in M.K. Balakrishnan, supra observed:
"We have heard learned counsel for the petitioner and the learned Additional Solicitor General.
We have been informed that the Wetland Rules have since been notified and they are now called the Wetlands (Conservation and Management) Rules, 2017. These Rules have come into force on the date of publication in the official gazette, that is, 26th September, 2017.
Learned counsel for the parties say that they have very serious objections to some of these Rules. It is submitted that it appears that the Central Government has abdicated its responsibility under the Environment (Protection) Act, 1986 and instead of delegating its powers, it has abdicated its power in favour of the State Governments. We have also been informed that the Central Wetlands Regulatory Authority has since been disbanded and the State Wetlands Authority and the National Wetlands Committee have been constituted under Rules 5 and 6 of the new Rules.
With regard to the expenditure on Ramsar Convention sites, we have been informed by learned Additional Solicitor General that the audited accounts have so far been received from the States of West Bengal, Madhya Pradesh and Odisha. Audited accounts have not been received from any other State with regard to the Ramsar Convention sites.
We have also been informed that apart from Ramsar Convention sites, further funds have been given to the States and the Union Territories for conservation of wetlands. No audited accounts have been received in regard to these funds disbursed as well as their expenditure by the State Governments and the Union Territories.
With regard to the brief documents required to be furnished under the old Rules, it appears that only ten States and one Union Territory have responded. It appears that there is now no necessity of brief documents under the new Rules. We make it clear that this does not mean that the earlier brief documents already submitted can be discarded completely.
The contents of these brief documents will still be followed as far as the implementation of the Wetlands (Conservation and Management) Rules, 2017 is concerned.
Finally, with regard to the satellite images, we are told that the Space Application Centre would require between 12 to 18 months to make an inventory of 1,75,740 wetlands as they exist today. We make no comment on this but request learned Additional Solicitor General to re-check with the Space Application Centre since the wetlands are diminishing in our country at a very fast rate. It is very likely that many more will disappear by the time the task is completed by the Space Application Centre.
We make it clear and reiterate that in terms of our order dated 8th February, 2017, 2,01,503 wetlands that have been mapped by the Union of India should continue to remain protected on the same principles as were formulated in Rule 4 of the Wetlands (Conservation and Management) Rules, 2010.
Learned counsel for the parties may file their objections to the new Rules within a period of two weeks. We direct that only one set of objections should be filed and both learned counsel should sit together and arrive at some consensus on the objections.
We further direct the State Governments that have not complied with earlier orders or directions given by the Central Government should do so within a period of four weeks from today failing which we will be constrained to require the presence of the Chief Secretaries of the State Governments in addition to imposition of heavy costs keeping in mind the necessity of conserving whatever water bodies are left in the country.
List the matter for further directions and for hearing on the objections to the new Rules on 9th November, 2017.
We would require the presence of a senior officer of the Ministry of Environment, Forests and Climate Change, Government of India to be present in Court on the next date of hearing so that any questions that may be raised can be answered immediately. Needless to say, the senior officer who should be present in Court should be well-versed with the subject. The files on the basis of which the new Rules have been framed may also be kept ready for perusal when the matter is taken up."
4. Thus, the Hon'ble Supreme Court, apart from directing the High Courts where Ramsar Convention sites are located to monitor the management of such sites, also directed application of Rule 4 of the Wetland (Conservation and Management) Rules, 2010 to 2,01,503 wetlands already mapped by the Central Government. It was further directed that the Central Government will identify and inventorise the said wetlands with the assistance of the State Governments and communicate the order of the Hon'ble Supreme Court to the State Governments who will be bound by the said order. Rule 4 in question provides for protection of wetlands against any incompatible activity, including encroachment and dumping of waste which is to be ensured by the State Wetland Authorities.
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17. The suggestion of the applicant is that significant wetlands need not be limited to 363 and more wetlands on examinations be added to the list from time to time for better protection by preparing appropriate action plans under the programme for protection of the significant wetlands. Further, apart from figure of 2.01 lakh wetlands already mapped, to which the Wetland Rules, 2017 are applicable even if no separate Notification in terms of 2017 Rules in view of directions of the Hon'ble Supreme Court in M.K. Balakrishnan, supra, it may be possible to identify more such wetlands. Infact, the report of the MoEF&CC itself mentions that some States have already identified larger number of wetlands than earlier mapped. In UP itself, 133484 wetlands are entered in the Revenue Records which are being protected by the State. On the same pattern, all the States/UTs need to map all available wetlands in their jurisdiction and file report with the National Wetland Authority so that National Wetland Authority can prepare an exhaustive inventory of wetlands in the country and extend protection to all such wetlands. These suggestions need to be considered by the MoEF&CC.
18. District Environment Plan of each District in terms of order of this Tribunal dated 05.07.2021 in OA 360/2018, Shree Nath Sharma vs. Union of India & Ors. should also cover the wetlands in the District. If necessary, the said plans be revised accordingly by the District Magistrates concerned by providing that the core activity for conservation and protection of wetlands may primarily focus on not discharging of sewage, disposal of solid waste and other wastes, preventing siltation, demarcation of wetlands/flood protection zone and removal of encroachments. There should be regular monitoring of water quality under water quality management programme at strategic locations (around 10 locations) to ensure that it is compliant with TC/FC norms. Water quality of the wetlands with respect to BOD needs to be less than 3 mg/1, feacal coliform should meet norms and contamination due to toxic constituents either directly or through runoff from the catchment should be prevented. Biodiversity of the wetlands needs to be maintained. Monitoring of steps for compliance of Rules in relation to such Wetlands ought to be at District level by the District Magistrate, at State level by State Wetland Authority and at National level by National Wetland Authority. We are confident that such initiatives in monitoring will go a long way in protecting the Wetlands which have significant environmental functions."
18. In view of above, as far as issue to protection of water bodies generally is concerned, the same stands concluded and the authorities in the State of MP may deal with the matter in accordance with the said directions. Needless to say that in the light of judgment of the Hon'ble Supreme Court in M.K. Balakrishnan and Ors. vs. Union of India : (2017) 7 SCC 805, M.C. Mehta v. Kamal Nath & Ors. : (1997) 1 SCC 388 and Hinch Lal Tiwari v. Kamala Devi : (2001) 6 SCC 496, the State Authorities are under obligation to protect the water bodies. Water becoming contaminated cannot be a ground to change the land use and destroy such water body.
19. The application will stand disposed of accordingly with a direction that the compliance of environmental norms for protection of water bodies may be monitored in every district by the District Magistrate at regular intervals which may also be monitored by the Chief Secretary of the State in accordance with the directions of this Tribunal on the subject quoted above. Since any decision of the State Authorities has to be compliant with the Central Environmental Laws on the subject, inter-alia, Air Act, Water Act, Environment (Protection) Act, 1986 and Rules/Orders framed thereunder, including Wetland Rules, any earlier decision including decision with regard to change of land use or master plan may be liable to be revisited in the light thereof.
20. Since we have not found it viable to go into individual violations simultaneously with the larger general issue of protection of water bodies, any individual surviving grievance is left open to be gone into independently in any independent proceeding in respect of such individual issue by setting out such individual grievance, impleading concerned individual party and giving the date of cause of action to determine whether the matter is within the prescribed limitation as per NGT Act.
In view of above order, all pending application will also stand disposed of.
A copy of this order be forwarded to the Chief Secretary, Madhya Pradesh, MP State Wetland Authority, Director, Department of Environment, M.P. and District Magistrate, Balaghat by e-mail for compliance.