Chandrabhan Rajpurohit vs State of Rajasthan

In this writ petition in the public interest, petitioner has prayed for the following reliefs:

"8.1 The necessary direction may kindly be given to the respondent authority to remove the encroachment/construction made over the Gair Mumkin River Land of Khasra No. 1048, village Pali, Tehsil & District Pali, while quashing the order of allotment dated 9.7.2009 issued by the respondent No. 5 in favour of the respondent No. 7.

8.2 It may be ordered to do the measurement of Bandi River Land "

On 6.8.2014, we passed the following order:

We have heard Dr. Chandrabhanu Rajpurohit, petitioner present in person; Mr. Anil Mehta, Chairman, Pali Water Pollution Control, Treatment and Research Foundation, Pali (a private trust funded by the industries in District Pali for short referred to as ''the Trust'') and Mr. S.L. Parmar, Superintending Engineer, Water Resources Department, Pali.

This writ petition has been filed in public interest for removing encroachment/constructions made over Gair Mumkin river land of khasra No. 1048 in Village Pali, Tehsil & District Pali, as also for quashing the order of allotment dated 9.7.2009 issued by Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO), Jaipur in favour of the Trust for construction of CETP.

The petitioner has drawn the attention of this Court to the alleged illegal construction of CETP which is likely to affect the flow of water in river Bandi and which may overflow the banks of the river threatening the residents living on up and down streams of the river.

The matter was adjourned on 22.7.2014 to enable the District Magistrate, Pali to dispose of the application submitted by the petitioner as per the provisions of Section 133 Cr.P.C. in accordance with law.

We are informed that the District Magistrate, Pali has by his order dated 31.7.2014 dismissed the application on the ground that it did not fall within his jurisdiction for removing public nuisance under Section 133 Cr.P.C. The District Magistrate prima-facie found that the construction of CETP is necessary for the treatment of water discharged by the textile industries in Pali. There was no material on the record nor any report of the Superintending Engineer, Water Resources Department, Pali was placed before him which may support the allegation of the applicant that the construction of CETP will affect the free flow of water in the river and will pose a threat to the citizens of Pali. The District Magistrate did not find it proper to stop the construction of CETP only on the ground that the allotted land falls in the river bed. He further observed that no objection was made by any Government department including the Water Resources Department regarding the obstruction to the free flow of water in the river. The place where the CETP has been constructed is of triangular shape in which on two sides, RIICO has allotted plots for industrial development and that the boundary walls have been constructed by the industrial units to check the inflow of water. The CETP and the boundary wall of the units are in straight line and thus, it is not clear as to how even if the CETP is constructed in the river bed, the free flow of water in the river will be affected. After hearing the parties including the Superintending Engineer, Water Resources Department, Pali, we are of the view that a technical study based on the extensive survey of the river is required to be carried out by the Water Resources Department, Pali to allay the apprehension of the petitioner that the construction of the CETP will affect the free flow of water in the river.

We may observe that whereas the construction of the CETP is necessary so as to prohibit the polluted water to flow in the river, the construction should not be made in such a manner which may affect the free flow of water in the river.

We thus, find it appropriate to direct the Water Resources Department, Pali to carry out an extensive survey and to submit a technical report to this Court as to whether, at present or in future, the construction of CETP (plant No. 5) will affect the free flow of water in the river and whether it will cause any threat to the residents of Pali in any manner.

We are informed that the Water Resources Department does not have sufficient funds and thus, we direct the Pali Water Pollution Control, Treatment and Research Foundation, Pali - respondent No. 7, a trust established by the textile industries, Pali and which also receives subsidy from the State Government, to deposit a sum of Rs. 7 lakhs with Water Resources Department, Pali to carry out the survey and submit the technical report. The respondent No. 7 will deposit Rs. 7 lakhs within a period of one week from today. We also direct the District Collector, Pali to direct the concerned revenue officials to assist the Water Resources Department in carrying out the survey.

The technical report after carrying out the extensive survey will be submitted under the signatures of Superintending Engineer, Water Resources Department, Pali, present in person in Court, within eight weeks.

Considering the importance of the matter, we exempt the Water Resources Department, Pali to adopt the tendering processes required to hire the agencies to carry out the survey. The Water Resources Department will utilise the services of the best of the agencies at its discretion. These orders are being passed considering the importance and urgency of the report to be submitted to the Court.

List on 13.10.2014."

The entire basis of complaint in the writ petition is the letter, written by the Executive Engineer, Water Resources Division, Pali to the District Collector on 26.11.2010 in which he pointed out that new CETP plant (CETP-5) is being constructed on Gair Mumkin Khasra No. 1048 recorded as riverbed. It was stated in his letter that Rajasthan State Industrial Development and Investment Corporation Ltd. (RIICO) has allotted about ten bighas for new CETP plant of which the major portion falls in riverbed. The report of the Asstt. Public Information Officer subsequently verified that about 6.12 bighas of land out of 10 bighas on which CETP plant-5 is being constructed, falls in riverbed.

The Executive Engineer, Water Resources Circle, Pali also wrote to the District Collector on 5.12.2012 that if a new CETP plant on 10 bighas of land allotted by the RIICO is constructed, it is likely to affect the free flow of water in river Bandi, which will cause a serious threat to the residents of the Pali District.

The Superintending Engineer, Water Resources Circle, Pali has submitted a report in compliance of the order dated 6.8.2014, jointly prepared and signed by the Executive Engineer and the Assistant Engineer verifying that the discharge received from upstream reaches will safely pass through the higher X-sectional area near CETP No. 5. As CETP No. 5 is constructed in line with other industries, it will not cause obstruction in river flow. It is useful to quote the report for the purpose of this case, which reads as follows:

"TECHNICAL REPORT

In the matter of construction of CETP No. 5 on Bandi River at Pali

The Pali City is located at longitude 73�19''42" E and Latitude 25�46''29" N on geographical map. The population of Pali City is 2,29,956 as per census 2011.

The River Bandi is flowing southward of old Pali City, but due to development of Textile Industries & other Infrastructure projects, the abadi of town with industries has spread on both banks of Bandi River .

The CETP No. 5 is constructed on right bank of Bandi river and as per revenue record it is partly on Gair Mumkin Khasra No. 1048. The Compound wall of CETP No. 5 on river side is almost in line with established Industrial Units. The right bank of Bandi river is protected by pitching at many reaches between 0 Ch. (Sumerpur-Pali city bridge) to 65 Ch. (each 1 Ch.=100''). The location of CETP No. 5 is between 2200-2550 M. (0 M. at Sumerpurpali city bridge).

In compliance of Hon''ble High Court order dated 06.08.2014, a scientific Survey has been conducted to assess obstruction in river flow due to construction of CETP No. 5. As per Survey and other records, data has been analyzed and compared with U/S & D/S location with respect to CETP No. 5. The X-Section area of river at various locations are as under:

The X-Sectional area has been calculated with respect to Lowest Level of river bank. They may vary by +/- 5% due to deposits of waste material, thick bushes of Juliflora or water poundage. All these X-Sectional areas shows in U/S & D/S locations. (Annexure-1).

The width of river has been verified and checked from independent records, which is as under:

Comparison of above data indicates that X-sectional area & width of river near CETP No. 5 location is on higher side. Therefore it is concluded that discharge received from U/S reaches will safely pass through the higher X-sectional area near CETP No. 5. As CETP No. 5 is constructed in line with other industries, it will not cause obstruction in river flow.

As location of CETP No. 5 Bandi River is flowing in "meandering" state. (''Meander''- The formation of meanders due to both deposition & erosion and meanders gradually migrate Down Stream. The force of water erodes and under cuts the river bank on outside of bend where water flow has most energy due to decreased friction. Over the time the hourse shoes become close through.)

Therefore at this state protection of bank by under cutting during high flood is necessary.

The many colonies of Pali City are constructed in low lying area like Indira Colony, Bapu Nagar Colony & Sindhi Colony. The drainage system of Pali discharges in river and always cause of concerned during heavy flood due to reverse flow of river water. The CETP No. 5 plant will not be cause of concern for adjoining locality & will not obstruct river flow.

We have heard learned counsel appearing for the parties.

The CETP No. 5 is being constructed alongside the textile industries on the banks of river Bandi by a Trust, formed and funded by the Association of Industries. The Collector was earlier the trustee of the Trust but he has since been withdrawn, leaving the trust to be a private body. The constructions are funded by the water cess received by the Municipal Council for the textile industries. We are informed that about 80% constructions of CETP No. 5 is complete.

The river Bandi has experienced floods twice in the last many years. With the changing climate conditions in which the State of Rajasthan experienced excessive rainfall in the year 2014, it is not certain as to whether the catchment areas of river Bandi will receive excessive rain water to flood the river all over again in near future. We, therefore, share the concern of the petitioner that any fresh constructions on the river bed or on a part of river bed, may affect the flow of water in river Bandi to endanger the town of Pali.

In the circumstances, we find that though the construction is being raised by the Association of Industries, we are informed that eighty percent of the construction is already completed. We find that the river Bandi has been experiencing floods for last 30 years with the changing climatic conditions in the environment. We cannot say as to when the next flood will uplift river Bandi.

The geographical maps downloaded through Google Website of river Bandi have been produced before us, which clearly demonstrates that the entire land allotted by the RIICO to the textile industries and CETP plants, is on the banks of the river Bandi. The circumstances in which the industrial area was permitted to be established adjacent to the river, will require a thorough examination, as it cannot be denied that the untreated effluent discharged from the textile industries is toxic in nature and unless the discharge is treated with satisfactory results, it will pollute the downstream of river Bandi from Pali.

An effort was made by the counsel for the RIICO to suggest that in fact the untreated discharge from the drainage system of the city of Pali gets mixed up downstream with the treated discharge of the industries, which is far more dangerous and is a major threat to the residents of the city of Pali and the areas downstream the Bandi river. In the absence of any material to support the assertion, we are unable to comment on such defence.

We are informed that a writ petition in public interest was filed by "Kisaan Paryavaran Sangarsh Samiti", Jaipur regarding construction of textile industries on the banks of the river Bandi in Pali and that this court after considering the orders passed by the Hon''ble Supreme Court for transferring the matters relating to the environment to the National Green Tribunal, has transferred the same to be heard by the National Green Tribunal Bench in which the next date fixed is 27.11.2014.

After hearing learned counsels appearing for the parties, we find that the questions raised in this writ petition cannot be decided in isolation. The constructions of CETP No. 5 on the river bed in Pali in line with the industries, which were also allowed to be established on river bed, may not only cause obstruction in the free flow of river Bandi, which is meandering in nature, but that the discharge of the industries and discharge of untreated drainage down stream the river Bandi for the town of Pali, is a cause of greater concern. Any view taken by the Court in this writ petition on the limited material produced before it, is likely to affect the decision to be taken by the Court or NGT in the pending matters. The entire matter with regard to existence of textile industries on river bed on the land allotted by RIICO and in-toxic discharge including the discharge from the drainage system of the town of Pali, requires a comprehensive decision for protection of environment. It may have been necessary to develop an industrial area for growth of textile industries, which offers employment and revenue, but the protection of environment raises issues of far reaching concern inviting the principles of sustainable development. The Courts must protect the environment from immediate threat caused by the polluted water in river Bandi, which ultimately meets river Banas. The Courts must also take care of the pollution in river Bandi for future as well as the threat of floods in the town of Pali, of which a number of localities are in low lying areas for which it is stated that sluice gates have been constructed for protection. The entire matter has to be decided in a holistic manner, taking into consideration the principles of sustainable development, inter-generational equity and the polluter pays. In this writ petition, except a technical report on the alleged threat to environment by construction of CETP No. 5, no further material has been placed, which must be collated in a proceeding in which the environment threat has to be seen in a holistic manner and directions given, to be monitored for protecting the environment.

In the aforesaid circumstances, we are of the view that this matter should also be transferred to the National Green Tribunal to be considered alongwith pending writ petitions for protection of river Bandi and also the environment for residents of Pali district and for all those residents, who are living downstream. In order to give any relief in this writ petition, a holistic view has to be taken with regard to environment, which is likely to be affected or to be protected by construction of the CETP-5.

Let the entire record of the case be transmitted to the National Green Tribunal within a week on or before 24.11.2014. The Registry will make arrangements for transfer of the record to the National Green Tribunal to be considered by it in its next sitting on 27.11.2014.

Learned counsel for the Industries states that while considering the issues raised in this writ petition, the National Green Tribunal may be directed to consider the question of limitation also. We are not expressing any opinion on the question of limitation. If it is permissible in law, the objection raised by the Industries may be considered in accordance with law. So far as a P.I.L. for protection of environment is concerned, the limitation is no bar for entertaining such a petition in the court. The question, however, is left open to be considered by the National Green Tribunal in accordance with law.

This writ petition stands disposed-of accordingly.