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Judgment
Grievance in this application is against concretization of storm water drain from 01 Navyug Market to 33 Navyug Market, Ghaziabad and for direction to maintain buffer zone of 12 meters from the edge of the drain on either side free from construction/encroachment.
According to the applicant, the drain in question is meant to carry runoff during rainfall but at present sewage and industrial effluents are discharged in the said drain in violation of the Water (Prevention and Control of Pollution) Act, 1974. The said drain has now been completely covered and concretized by the Nagar Nigam which is against recommendations of an expert Committee appointed by this Tribunal dated 13.10.2014 in respect of control of pollution and restoration of Yamuna River based on which this Tribunal vide judgement dated 13.01.2015 in O.A No. 06/2012, Manoj Misra v. Union of India & Ors. directed:-
“There shall be no construction and/or coverage of any of the drains in Delhi by any Authority or Municipal Corporation. All the drains shall be kept obstruction free by the concerned Corporation.”
As per NCR Planning Board decision in meeting held on 28.04.2016, covering of drain is not permissible and buffer zone of 12 meter from the boundary of the drain is ‘no-construction zone’. Reference has also been made to order of this Tribunal dated 13.05.2022 in OA No.16/2014 directing as follows:-
“ ...covering of a drain obstructs flow of the river and is not environmentally permissible with or without permission of a Nagar Nigam. Not only drain, but reasonable buffer area from its edge has to be left free as held in Mantri Techzone Pvt. Ltd. v. Forward Foundation and Ors., (2019) 18 SCC 494 (Para 21). Preferably such buffer zone should be covered by dense forest. Section 24(1)(b) of the Water Act prohibits any obstruction of the flow of water of a stream which may add to pollution.
Mere fact that the permission has been granted by the GNN cannot be of any consequence to remedy such illegality. It is well settled that protecting and maintaining drains is covered by the doctrine of public trust under which certain environmental assets vest in the people. The State has to act as a trustee. Storm water drain has important ecological functions in augmenting water supply. Discharge of untreated sewage in such drains is prohibited under the Water Act. So is obstructing its flow. The Nagar Nigam is thus not only under an obligation to prevent discharge of any pollutant into the drains (whether natural or manmade) but also prevent impeding its flow. In view of section 24 of the Water Act, it is not possible to accept that the Nagar Nigam can, in exercise of its contract making power or authority responsible for maintaining the drain, allow either impeding of flow or polluting of the drain. The Nagar Nigam is to act as a trustee in respect of the drain. The powers of the Nagar Nigam are not unlimited so as to either by itself or through anyone else violate the mandate of the Water Act.”
…
Even though the Hon’ble Supreme Court in Mantri Techzone, supra, has approved larger buffer zones ranging from 25 meters to 50 meters from the edge of the drain (depending upon size of the drain), the buffer zone laid down by the NCR Planning Board which is lesser area, must be followed in the NCR, which includes Ghaziabad. Thus, all constructions within the buffer zone of 12 meters from the edge of any drain have to be held illegal and liable to be removed…..”
Vide order dated 06.07.2022, the Tribunal considered the matter and sought a factual and action taken report from a joint Committee of CPCB, NCR Planning Board, State PCB, District Magistrate and Municipal Corporation, Ghaziabad.
In pursuance of above, the joint Committee has filed its report dated 13.12.2022 to the effect that there is a dense market in existence since 60–70 years. The drain has been constructed 3-4 years back for smooth flow of storm water and to prevent water logging. Concretization is being done for vending zones and not for the market. There is no mixing of sewer with the storm water. The Committee has accordingly suggested as follows:-
“a. The solid waste and waste water handling in densely populated areas along the drain needs further improvement. Municipal Corporation, Ghaziabad should ensure that adequate segregated waste collection points are made in areas from where fruit, vegetable and chicken vendors operate and frequency of collection may be optimized to ensure optimum usage of space.
b. Bar screens be installed at adequate locations and solid waste finding its way into the drain should be removed regularly from these areas. Strict action should be taken against establishments as well as individuals found to be littering/disposing waste or discharging waste water into the drain in violation of laid rules and guidelines.
c. Municipal Corporation, Ghaziabad along-with representatives of land-owning agencies should ensure that activities along the drain's catchment area are in accordance with approved land use as this will further ensure regulation of solid as well as liquid waste finding its way into the drain.
d. Municipal Corporation, Ghaziabad should carry out survey of the entire stretch of drain and ensure that there is no mixing/leakage of sewer from sewered network into the drain.
e. Covering of drain, if required should be done only in accordance with Functional Plan on Drainage for National Capital Region, approved in the 65th meeting of the Planning Committee of the NCR Planning Board. Also, adequate space should be made available for access of mechanical equipment needed for cleaning of drain at regular intervals.”
After hearing learned Counsel for the parties, we accept the report and issue directions in terms of recommendations of the Committee. We further direct that the drain be not concretized so as to adversely affect charging of ground water which is necessary in view of the fact that the ground water in the area is already depleted. No sewage be discharged therein.
The application will stand disposed of accordingly.
A copy of this order be forwarded by email to the District Magistrate and Municipal Corporation, Ghaziabad for compliance.