Friends & Anr vs Union of India & Ors

Issue for consideration is remedial action against illegal constructions in catchment area of Naini Lake, Nainital.

Vide order dated 12.04.2019, a report was sought from Uttarakhand State Pollution Control Board, District Magistrate, Nainital and Secretary, Urban Development with reference to the allegations in the application. As per report filed by the District Magistrate, Nainital dated 24.10.2019 the same issue was pending before the Uttarakhand High Court, before this Tribunal was moved.

Vide order dated 17.12.2019, the matter was adjourned sine-die to await orders of the High Court in the pending matters and the applicants were given liberty to move the High Court.

The matter has been put up in view of the fact that Writ Petition (PIL) No. 49 of 2009, Kamal N. Tripathi vs. State of Uttarakhand & Ors. and other connected matter have been disposed of on 17.08.2020, recording assurance of the authorities to take remedial measures.

Learned Counsel for the applicants, however, submits that there are illegal constructions in the catchment area of the lake, beyond carrying capacity. Commercial constructions are taking place disregarding the environmental concerns. Recent landslides have happened. It is submitted that these issues have not been gone into by the High Court.

While we agree that environmental concerns have to be addressed having regard to eco-sensitiveness of the area for protection of lake as well as environment, the applicants have not impleaded the alleged violators nor given necessary particulars.

Further, the issue of illegal constructions in the catchment area of the lake has also been considered by the High Court vide judgment dated 27.08.2019 in Writ Petition (PIL) No. 31 of 2012, Prof. Ajay Singh Rawat vs. Union of India & Ors. as follows:-

“D. Encroachments and illegal construction in the submerged area of Sukhatal Lake, as well as encroachment and illegal construction elsewhere in Nainital.

As regarding construction around Sukhatal Lake, the same is not permissible under the law. All unauthorized construction activities, presently in progress shall stop with immediate effect. Any unauthorized construction which is already there, the Lake Development Authority is given instructions to give notices to the occupants of these unauthorized premises, so that such structures be removed in accordance with law. It is made clear that it was brought to our notice more than one occasion, and inspite of clear instructions of this Court, unauthorized construction has been permitted around the water body of Sukhatal. In case an unauthorized construction is being carried out, such officers who have permitted these constructions shall be personally responsible, inter alia, for disobeying the orders of this Court.

We make it clear that the Court Commissioner Sri Anil Kumar Joshi who has been appointed by this Court would always be at liberty to apprise this Court of any violation of our orders so that a suitable action can be taken under the law against such responsible persons.

E. Illegal constructions in Zone-1, Zone-2, (Sher Ka Danda, Ward No.7) and demolition of unauthorized construction in these areas

This Court’s order dated 13.07.2015 clearly suggests that encroachment and unauthorized construction in Zone-1, Zone-2, Sher Ka Danda, Ward No. 7 and Sukhatal Lake catchment area has to be removed in public interest. There is a report of the Committee which shows that they have earmarked the land at “Baluwakhan” for rehabilitating these inhabitants. Let the same be done in accordance with law as expeditiously as possible.

This Court has been informed that similar sensitive and danger areas such as “Baliyanala” and other places have been identified by the Administration and steps have been taken for the rehabilitation of the inhabitants at these places.

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G. Direction to the Municipality to submit the complete detail of pony and boat licences.

Our orders dated 24.11.2015 and 17.12.2015 are self-explanatory. Further no licence of pony as well as boat shall be given by the Authorities, unless it is urgently required.

As far as the main prayer of the petitioner in the present petition is concerned, we are of the view that the first prayer of the petitioner needs to be considered by the Ministry of Environment and Forests, Government of India, which shall consider whether on the basis of the report of their own Expert Committee of March, 2003 which is annexed as Annexure No. 7 to the writ petition, the entire Nainital region needs to be declared as Eco-Sensitive Zone. We make it clear that it is not a direction for a declaration as such. The order is merely for the Government of India to consider this aspect as this is based on the reports of its own Expert Committee. Let a decision be taken in this regard as expeditiously as possible.

Regarding the second prayer of the petitioner, we direct the Secretary Disaster Management, Government of Uttarakhand to reappraise the development or construction plans in Nainital and its outlying areas, and take appropriate measures in case any construction activity is in violation of the law.

As regarding the third prayer of the petitioner, we are also of the opinion that the Commissioner, Kumaon Division as well as the District Magistrate, Nainital and the Secretary, Lake Development Authority shall take all possible measures to see that no construction activity takes place inside the shoreline of “Sukhatal”, and take all remedial measures for removing the unauthorized construction.

The District Magistrate, Nainital and the Senior Superintendent of Police, Nainital along with other concerned authorities shall take a stock of the traffic situation before coming of each season, as far as practical in the month of February itself, and prepare a traffic plan for control of traffic in Nainital, a plan which should cause as less inconvenience to the tourist, as well as to the residents of Nainital, but at the same time be effective. Consultation with IIT, Delhi be done, on regular basis, in this regard.

As regarding the preservation of Nainital Lake and other periphery region of Nainital, we have been informed that appropriate orders have already been passed by a Coordinate Bench of this Court, and therefore, we need not to pass any such order here.”

We also note that vide order dated 28.07.2022 in MCC Review Application No. 978 of 2019 in WPPIL No. 31 of 2012, matter has been taken up by the High Court. The authorities are bound to comply with the directions of the High Court on the subject and in case of violations, aggrieved party can take remedies in accordance with law.

In view of above, since the matter has already been dealt with by the High Court and is also pending, we do not find it necessary to deal with the matter to avoid conflicting orders. It is open to the applicant to move the High Court as per law.

The application is disposed of.

All pending IAs also stand disposed of accordingly.

A copy of this order be forwarded to Chief Secretary, Uttarakhand by e-mail.