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Judgment
By this appeal under Section 16 of the National Green Tribunal Act, 2010, the appellant has challenged the order dated 12.06.2023 imposing the compensation of Rs. 10 lakhs.
As per the facts disclosed in the Memo of Appeal, the appellant is a lodge located at 198, Kallupura Malliwara Chowk, Ghaziabad.
Earlier, OA No. 438/2018 was filed with the allegation against the respondents therein, including the appellant, that they were extracting ground illegally and unauthorizedly. The Tribunal by order dated 17.10.2022 had imposed the interim compensation on all such units/hotels which were found to be having borewells without necessary NOC/permission from the Ground Water Authorities.
The premises of the appellant was visited and thereafter a show cause notice dated 10.04.2023 was issued for imposition of compensation of Rs. 10 lakhs. The appellant had filed the reply dated 24.05.2023 and thereafter the impugned order has been passed.
Submission of Counsel for the appellant is that the appellant is exempted under the Central Ground Water Authority (CGWA) Guidelines 2020 from obtaining NOC for operation of borewell and that the appellant is a very small lodge with 10 rooms and the appellant is drawing ground water for its domestic need and that the exemption of drawing of ground water by the appellant for domestic need.
Having heard learned Counsel for the appellant and perusal of the record, it is noticed that the Tribunal in OA No. 438/2018 in the matter of Arti vs. Central Ground Water Authority & Ors., had considered the issue of regulation indiscriminate boring and withdrawal of ground water for sustainable water resource management.
In compliance of the judgment of the Hon’ble Supreme Court in the matter of M.C. Mehta vs. Union of India, (1997) 11 SCC 312, the OA No. 438/2018 was initially filed against unauthorized withdrawal of ground water by 122 hotels in Ghaziabad impleaded as Respondents No. 5 to 126 therein, but thereafter the Tribunal had taken up the larger issue of such problem in major cities of Uttar Pradesh relating to large scale illegal extraction of ground water in the entire State.
The plea taken in the appeal reveals that the appellant was one of the respondents in that OA. The Tribunal had taken note of the alarming situation relating to rampant violation of the judgment of the Hon’ble Supreme Court in view of large scale ground water extraction without NOC. Accordingly, the Tribunal, in para 24 of the order dated 17.10.2022, had taken note of the formula for determining the interim compensation to be recovered from the establishment identified as extracting ground water without permission without prejudice to further action by statutory regulators as per law. The Tribunal had further directed the joint Committee constituted by CGWA to assess final compensation as per the guidelines mentioned therein after giving opportunity to the concerned establishment. The direction of the Tribunal in this regard is as under:
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We also direct the joint Committee constituted by CGWA, mentioned in para 11 above, to assess final compensation as per above guidelines, after giving opportunity to the concerned establishments, within three months. Any party aggrieved by such orders can take their statutory or other remedies as per law. This order may be served by the Committee by email on all the identified violators individually within one week.”
After the above order dated 17.10.2022, the Hotel and Restaurant Association of Northern India had filed IA No.339/2022 for recall of the order of the Tribunal dated 17.10.2022 in OA No. 438/2018. In that recall application, similar argument, as raised in this appeal, was raised to the effect that the scale of compensation laid down by the Tribunal had no scientific basis and small hotel owners with 5 to 7 rooms fall in exempted category. The said argument was duly considered by the Tribunal in the order dated 17.01.2023 passed in IA No. 339/2022 in OA No. 438/2018 and rejected by holding as under:
“xxx ………………………………..xxx………………………………..xxx
In the application now filed, case of the Association is that scale of compensation laid down by this Tribunal is without any scientific basis and all hotels have been wrongly treated at par which amounts to treating unequals as equals, to the detriment of very small units, exempted as per Government Notification dated 24.09.2020. Interim compensation is adhoc, unrelated to actual consumption of water. There is no basis for assuming that water used is 350 liters per day per hotel room and that all rooms were occupied. COVID period has not been excluded. The rate for water assessed by the Tribunal @ Rs. 80 per KL (8 paise per litre) is excessive.
We have heard Shri Dhruv Mehta, Senior Advocate appearing in support of the application. Apart from averments in the application summed up above, Shri Mehta submitted that many of the members of the Association may be very small with hotels of 5 to 7 rooms, consuming less than 10 cubic mtr. water per day, falling in exempted category. According to data mentioned in the report submitted to this Tribunal, many hotels were drawing only 4 KL water per day.
On due consideration, we do not find any merit in the application. The Association has deliberately withheld details and particulars of the Members it represents though such information is readily available with it for which adverse inference has to be drawn. While withholding such information, case is sought to be built that its members are too small, not using much water and they be assumed to be of exempted category. For building such case, there is no factual foundation. Further, no meters have been installed by the hotels to ascertain the quantum of water drawn and in absence of it, there cannot be presumption in their favour, as sought to be drawn. Thus, there is no option but to make best judgment assessment of the quantum of water drawn. It is reasonable to take the figure of 350 liters per room (taking double occupancy per room) which is based on estimated assessment of water consumption of 180 liters per head in hotels as per “Indian Standard Code of Basic Requirements for Water Supply, Drainage and Sanitation”, Annexure A-4 to the application, which is part of Estimation of water requirement for drinking and domestic use (Source: NBC 2016, BIS) published by Central Ground Water Authority Jam Nagar House, New Delhi. Scale of compensation is reasonable being @ Rs. 80 per liter, 8 paisa per litre. Further, compensation fixed is @ Rs. 10,000 per room per year (Rs.800 per month and Rs.30/- per day). This rate can by no stretch of imagination be held to be excessive particularly for those who have deliberately avoided having any meters and record which itself may call for more deterrent action for which liberty has been reserved after giving due opportunity.”
The competent authorities acting upon the aforesaid order of the Tribunal had issued notice to the appellant and had complied with the principles of natural justice and thereafter passed the impugned order dated 12.06.2022 imposing the compensation of Rs. 10 lakhs on the appellant.
Counsel for the appellant has failed to point out that the competent authority while passing the impugned order has acted contrary to the earlier orders of the Tribunal. The argument relating to the small hotel owners being under exempted category has already been rejected by the Tribunal. Though the appellant has referred to the CGWA guidelines 2020, but has failed to point out that it falls under the exempted category especially after the judgment of the Hon’ble Supreme Court as also the Tribunal noted above. Undisputedly, the appellant does not have NOC and he is extracting ground water. The mere fact that the appellant is having a small hotel/lodge with 10 rooms is not sufficient ground to exempt the appellant from the compliance of provisions of law, unless he falls in exempted category.
In view of the above analysis, we do not find any merit in this appeal which is accordingly dismissed.
I.A. No. 731/2023 also stands disposed of.