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Judgment
The applicant had initiated this application as B.B. Civil Writ Petition No. 652/2014 in the Hon'ble High Court judicature for Rajasthan at Jodhpur for following reliefs :
(a). direction to the respondent authorities to remove the encroachment/construction made over the Gair Mumkin river land - Khasra No. 1048, Village Pali, Tehsil and District Pali on quashing the order of allotment dated 9.7.2009 issued by the Rajasthan Industrial Development and Investment Corporation Limited in favour of the respondent no. 7 (Pali Water Pollution Control Board and Research Foundation, Pali);
(b). Measurement of Bandi River land in accordance with Jamabandi;
(c). Restraint on construction over the land in question;
The parties were heard by the Hon'ble High Court whereupon the Hon'ble High Court considered the dismissal of the application submitted by the applicant to the District Magistrate, Pali for removing the nuisance upon invoking the provisions of Section 133 of the Cr. P.C., particularly on finding that the CETP is necessary for treatment of water discharged by the textile industries in Pali and there was no material on record nor any report of the Superintending Engineer Water Resource Department, Pali in support of the allegation made by 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. On realising the need of CETP as well as its construction being not made in such a manner so as to affect free flow of water in the river, the Hon'ble High Court took a view that a technical study based on extensive survey of the river is required to be carried out by the Water Resource Department Pali to alleviate the apprehension of the petitioner regarding effect of the construction of CETP on the free flow of water in the river, and directed the Water Resource Department Pali to carry out extensive survey and submit a technical report thereof as to whether, at present or in future, the construction of CETP in question would affect free flow of water in the river and whether it would cause any threat to the residents of Pali in any manner. District Collector, Pali was directed to arrange assistance from the concerned revenue officials to the Water Resource Department in carrying out the survey as directed. Liberty was granted to the Water Resource Department to utilise the sources of best of the agencies at its discretion and freed it of the tendering the process as required in hiring the agencies to carry out the survey.
The Hon'ble High Court took into consideration the report of the Assistant Public Information Officer that about 6.12 bigha land out of 10 bigha of which CETP plant is being constructed falls in river bed. A letter addressed by the Executive Engineer, Water Resource Department, Circle Pali wrote to the District Collector on 5.12.2012 regarding likely effect of the construction on the free flow of river Bandi was also taken into consideration by the Hon'ble High Court in juxtaposition with the technical report filed by the Superintending Engineer, Water Resource Department, Pali in compliance of the order dated 6.8.2014 passed it.
The Hon'ble High Court found that the holistic and comprehensive view keeping the Principle of sustainable development as guiding principle was required to be taken in the present case which involved the fate of textile industries situated on the land on the river bed allotted by RIICO and toxic (effluent) discharge from the drainage system of the town of Pali. A need to protect the environment from immediate threat caused by the polluted water in river Bandi which ultimately meets river Banas as well as from threat of floods in town of Pali was expressed by the Hon'ble High Court in the order disposing of such writ petition and transferring it to us for considering the questions including the question of limitation raised in this petition.
Before we proceed to consider the merits of this application, we reiterate that our mandate under the National Green Tribunal Act, 2010 is to examine the substantial question of environment including the questions relating to the enforcement of the right to the environment arising out of the implementation of the enactments specified in Schedule-I to the Act as well as to hear the appeals preferred against the orders/decisions specified under Section 16 of the Act.
In the instant case, the applicant besides making a bald statement that the construction over the land in question referred to as the land admeasuring 20225 sq. meters allotted by respondent no. 5 - RIICO is likely to affect free flow of water in River Bandi has not disclosed any other environmental concern in the application. Moreover, no challenge has been offered to the environmental clearance dated 9.9.2011 granted by the SEIAA, Rajasthan to the said project of construction of CETP on the land in question.
On this backdrop, respondent no. 7, which has undertaken construction, installation, and commissioning of CETP Plant Unit No. 5 on the land in question, in its reply dated 14.5.2015, has inter-alia among other contentions raised the contention that not only any person much less the applicant, filed any objections to the grant of environmental clearance dated 9.9.2011 granted to the project but there has been long delay in questioning the propriety of grant of environmental clearance. Respondent No. 7 further contended that the plant in question would also include the Reverse Osmosis Plant which would make it possible to reuse the treated water discharging from the Reverse Osmosis in the industrial activity and thereby succeed in attaining the zero discharge. This according to respondent no. 7 would not only benefit the environment but also benefit the public at large by optimum use of natural resource like water.
Inviting our attention to the judgement of the Hon'ble Apex Court in Common Wealth Games Village case reported in (2009) 8 SCC 582: Delhi Development Authority Vs. Rajendra Singh & Ors. learned Counsel appearing for respondent no. 7 submitted that the clear opinion expressed in technical report of the experts filed before the Hon'ble High Court that the CETP plant unit no. 5 in question will not be a cause of concern for adjoining locality and will not obstruct the river flow needs to be given due weightage and the allotment of the land for construction of such beneficent CETP cannot be now made a subject matter of challenge. He further invited our attention to the fact that more than 70% work of the CETP has been completed.
The Technical report tendered by the Water Resource Division Pali in pursuant to the directions dated 6.8.2014 to carry out extensive survey of the river reveals before us certain facts. It appears that the Experts, Engineers of Water Resource Division Pali took into consideration geographical location of Pali city and river Bandi and in relation to it described the location of CETP no. 5 in following terms:
"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."
It speaks of scientific survey being conducted to assess obstruction in river flow due to construction of CETP no. 5 and verification of the width of the river from independent records. On comparison of data, the report reveals, it is concluded that the discharge received from upstream reaches will safely pass the higher cross sectional area near the CETP No. 5 and CETP No. 5 is constructed in line with the other industries it will not cause obstruction in river flow. In the conclusion the report expresses that the CETP No. 5 plant will not be a cause of concerns for adjoining locality and will not obstruct river flow. There is nothing before us to come to the contrary conclusion. We must therefore yield to merit of the submissions made on behalf of the respondent no. 7.
No questions have been raised regarding the grant of EC dated 9.9.2011 to the project. Moreover, it is too late in a day to challenge the EC dated 9.9.2011 which ought to have been challenged long before as prescribed in proviso to Section-16 of the NGT Act. As a corollary, we have to hold that adverse impacts of the development in question have been duly considered and the safeguards prescribed while granting the EC.
The Technical Report has also taken note of the 'Meandering' state of Bandi River and suggested bank protection measures in times of high flood. We, therefore direct the respondent no. 7 to take such flood protection measures along the bank of its CETP and to raise such constructions as spurs, gears etc. With this, we dispose of this application.
Original Application No. 18(Thc) of 2015 stands disposed of accordingly.