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Judgment
Arun Kumar Tyagi, JM
Mr. Nirmal Kumar Tripathi resident of Kheera Ram Road behind Amethi Mandir, Deoria, Uttar Pradesh has sent the present letter petition to this Tribunal by post, which has been treated and registered as original application, complaining about causing of environmental pollution by Jal Nigam in the course of digging of a drain by the side of Deoria – Kheera Ram Road.
The applicant has submitted that earth is being excavated for digging of the drain in violation of environmental norms which is causing dust pollution. The agency carrying out the work is not using protective net and is not sprinkling water. The trees standing on the road side have been cut but no compensatory afforestation has been done. The residents of the locality are facing problems in breathing due to dust pollution. The relevant part of the letter petition sent by the applicant is reproduce as under:-
Vide order dated 31.07.2023, this Tribunal constituted a Joint Committee comprising of UP State PCB and District Magistrate, Deoria with direction to verify the factual position and take appropriate remedial action and submit its Factual and Action taken Report within one month. The relevant part of the order is reproduced below:-
“2. Prima facie, the averments made in the application raise questions relating to environment arising out of the implementation of the enactments specified in Schedule I to the National Green Tribunal Act, 2010. In view of the averments made in the application, we consider it appropriate that a Joint Committee be constituted to verify the factual position and take appropriate remedial action. Accordingly, we constitute a Joint Committee comprising of UP State PCB and District Magistrate, Deoria and direct the same to meet within one week, undertake visits to the site, look into the grievances of the applicant, associate the applicant and representative of the concerned project proponent, verify the factual position and take appropriate remedial action by following due course of law and giving opportunity of being heard to the project proponent. The State PCB will be the nodal agency for coordination and compliance.
Factual and Action taken Report may be submitted within one month by e-mail at [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF….”
In compliance thereof, report of the Joint Committee has been filed by Mr. R. K. Singh, Chief Environmental Officer, Circle 6, UPPCB, Lucknow vide email dated 29.08.2023. The relevant part of the report of the Joint Committee is reproduced below:-
Vide order dated 11.09.2023, State of Uttar Pradesh through Secretary, Environment, Government of Uttar Pradesh; Executive Officer, Municipal Council, Deoria; Executive Engineer, PWD, Deoria; DFO, Deoria; District Magistrate, Deoria and UPPCB were impleaded as respondents No. 1 to 6 and notices were ordered to be issued to them.
Consequent to service of notice replies have been filed by respondent no. 5-District Magistrate, Deoria vide email dated 19.11.2023 and by respondent no. 6-UPPCB vide email dated 18.11.2023.
The relevant part of the reply filed by the respondent no. 5-District Magistrate, Deoria vide letter dated 19.11.2023 is reproduced below:-
“Response on behalf of Respondent No.-5, District Magistrate, Deoria in compliance to the order dated 11.09.2023 passed by Hon'ble NGT Principal Bench, New Delhi in Original Application No. 418 of 2023 In the matter of Nirmal Kumar Tripathi Versus State of U.P. & Others
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Response
That the Hon'ble National Green Tribunal, Principal Bench, New Delhi vide its order dated 11.09.2023 in Original Application No. 418 of 2023 In matter of Nirmal Kumar Tripathi Versus State of U.P. & Ors. has seek a factual report from a joint Committee regarding the construction of Pucca Nala in Nagar Palika Municipal area of District Deoria.
In compliance to the above direction the inspection of alleged construction site was carried out by joint committee on 26.08.2023 in present of the complainer Sri Nirmal Kumar Tripathi, comprising following officials:-
Sri Gaurav Srivastav, A.D.M.(E), Deoria.
Sri Anil Kumar Sharma, Regional Officer, U.P.P.C.B., Gorakhpur.
Joint Committee Report has been already submitted to ceo-6, U.P.P.C.B, Lucknow by the UPPCB, Gorakhpur on 28.08.2023 vide letter no. 522/Sa-332/2023 which is filed on 29.08.2023 to Hon'ble Tribunal, New Delhi by e-mail. A copy of the Joint Committee Report is being attached herewith as Annexure No.-1.
In compliance to the order dated 11.09.2023 passed by the National Green Tribunal, Principal Bench, New Delhi in Original Application No. 418/2023, a letter has been issued to respondent no. 1 to 4 and 6 along with copy of the order dated 11.09.2023 for submission of response and ensure to remain their presence on hearing dated 22.11.2023 in Hon’ble N.G.T. Copy of letter enclosed as annexure no. 2
The above response of the District Magistrate, Deoria is placed before this Hon'ble National Green Tribunal for perusal and kind consideration.”
In the reply filed by Mr. Anil Kumar Sharma, Regional Officer, UPPCB, Gorakhpur has mentioned that the construction site of storm water drainage was visited by Regional Office on 17.11.2023 and copy of the inspection report has been enclosed as annexure 3. The relevant part of the Annexure 3 is reproduced below:-
“Annexure 3
Status Report of Construction site of storm water drainage of municipal area deoria by U.P. Jal Nigam (Urban), Deoria in compliance of the order passed by Hom'ble N.G.T. in O.A. No. 418/2023 Nirmal Kumar Tripathi V/s State of U.P. dated 11.09.2023.
The above alleged site is visited by undersigned on dated 17.11.2023 in presence of Sri Ashutosh Kumar Rai, site incharge of U.P. Jal Nigam (Urban), Deoria, the status of the drainage construction work at site is found as below:-
No any construction activities are found at the alleged site during the inspection.
Construction of storm water drainage from katrati mode to kurna nala approximate 2.0 kilometer has found completed.
Extra earth received from digging of nala, placed at road side patri area, are removed from some places and rest are found as it is as visit of dated 26.08.2023, photograph of sites are enclosed.”
Vide order dated 11.09.2023 personal appearance of Executive Engineer, PWD, Deoria, Executive Officer, Municipal Council Deoria, DFO, Deoria and District Magistrate, Deoria was ordered. In compliance thereof Mr. Akhand Pratap Singh, DM Deoria, Mr. Gaurav Srivastava ADM, Deoria, Mr. Rohit Singh EO, MC and Mr. Jagdish, DFO appeared before this Tribunal through VC and sought time to place action taken reports and photographs regarding the drain in question on record. This Tribunal observed after interacting with the officers that the structure of drain seemed to be wholly inappropriate for the purpose the same is intended to achieve and directed filing of action taken report with study report of IIT, Kanpur on the basis of which the drain was being constructed. The relevant part of the order reads as under: -
“6. We have observed after interacting with the officers that the drain in question is meant for draining storm water during monsoon to prevent and control waterlogging in the area but the major portion of the drain is to be concretized on all three sides and is to be covered by slabs on the top. Prima facie, such structure of drain seems to be wholly inappropriate for the purpose the same is intended to achieve as such concretized drain will prevent recharge of ground water and support of aquatic life in the course of drainage and adversely affect subsequent desilting and repair.
The officers present before this Tribunal through VC have informed that concrete drain is being constructed as per report based on study carried out by the IIT Kanpur.
We direct Jal Nigam, Deoria and DM, Deoria to file a copy of the report of IIT Kanpur before this Tribunal within one month by e-mail at [email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF…”
While adjourning the matter this Tribunal directed that work may be continued regarding digging of the drain without any further concretization of the same and further orders regarding concretization of the same will be passed after further hearing of the case.
In compliance thereof report has been filed by District Magistrate, Deoria vide email dated 19.12.2023. The relevant part of the report of the District Magistrate, Deoria is reproduced below:-
“Response/compliance on behalf of Respondent No.-5 District Magistrate, Deoria in compliance to the order dated 22.11.2023 passed by Hon'ble NGT Principal matter of Nirmal Kumar Tripathi Versus State of U.P. & Others
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Response
That the Hon'ble N.G.T., Principal Bench, New Delhi vide its order dated 22.11.2023 in Original Application No. 418 of 2023 In matter of Nirmal Kumar Tripathi Versus State of U.P. & Ors. has seek a factual report from a joint Committee regarding the construction of Pucca Nala in Nagar Palika Municipal area of District Deoria.
In compliance to the above direction the inspection of alleged construction site was carried out by joint committee on dated 26. 08.2023 in the presence of the complainer Sri Nirmal Kumar Tripathi.
Joint Committee Report has been already submitted to ceo-6, U.P.P.C.B, Lucknow by the UPPCB, Gorakhpur on 28.08.2023 vide letter no. 522/Sa-332/2023 which is filed on 29.08.2023 to Hon'ble Tribunal, New Delhi by e-mail.
In compliance to the order dated 11.09.2023 passed by the Hon'ble N.G.T., Principal Bench, New Delhi in Original Application No. 418/2023, response/reply has been filed by e-mail on 19.11.2023 and also had present in hearing through V.C. conducted by Hon'ble N.G.T. on 22.11.2023.
In compliance of the direction given by Hon'ble N.G.T., Principal Bench, New Delhi in Original Application No. 418/2023 on dated 22.11.2023, a copy of technical feasibility report on construction of R.C.C. storm water drainage prepared by Nand and Sons, Distt-Chandauli. U.P. which is counter signed by I.I.T., Kanpur is being enclosed as a annexure no. 1.
In compliance to the order dated 22.11.2023, the concretization work of the storm water drainage is stopped by U.P. Jal Nigam up to the further hearing of the case in Hon'ble N.G.T. on dated 04.01.2024. The above response of the District Magistrate, Deoria is placed before this Hon'ble National Green Tribunal for perusal and kind consideration
ANNEXURE I
This Tribunal noticed that the District Magistrate, Deoria had, vide letter dated 16.12.2023 (sent vide email dated 19.12.2023), submitted a copy of technical feasibility report on construction of RCC storm water drainage stated to have been prepared by Nand and Sons, District Chandauli, Uttar Pradesh and countersigned by IIT, Kanpur. Copy of the letter dated 16.12.2023 of the Executive Engineer, Jal Nigam, U.P. was enclosed by the District Magistrate, Deoria, in which it was mentioned under para 4 that “;g fd ty fudklh gsrq Mªsu dk Design M/s Ventech Engineers Kanpur }kjk rS;kj fd;k x;k ftldks Prof. Samit Ray Chaudhary, Department of Civil Engineering, IIT Kanpur }kjk xgu ijh{k.k ds mijkUr mi;qDr ik;k x;kA”. The report submitted by District Magistrate, Deoria clearly indicated that it had been prepared by private agency and not by IIT, Kanpur and the same was signed by a Professor of IIT, Kanpur in his personal capacity and could not be construed as the report of the IIT Kanpur. The District Magistrate, Deoria and the concerned Executive Engineer, Jal Nigam, Deoria were directed to file additional report regarding the storm water drains already existing and their present operational status and utility in draining storm water and status of the drain under construction with all requisite details.
In compliance thereof reply has also been filed by the State of Uttar Pradesh vide email dated 07.02.2024 and additional report has been filed by the District Magistrate, Deoria vide email dated 07.02.2024.
In the reply filed on behalf of respondent no. 1-State of Uttar Pradesh, Mr. Ashish Tiwari, Secretary, Environment Forest & Climate Change Department, Government of Uttar Pradesh has submitted that as the order/information of order dated 04.01.2024 was received by the department, on 30.01.2024 the letter was issued by the department to the Additional Chief Secretary/Principal Secretary, Urban Development/Public Works Department, Uttar Pradesh Government and District Magistrate Deoria to review the order dated 04.01.2024 passed and file the status report/response in consonance of it. The District Magistrate, Deoria and Additional Chief Secretary/Principal Secretary, Urban Development/Public Works Department, Uttar Pradesh Government were directed to take necessary action regarding the storm water drains already existing and their present operational status and utility in draining storm water and status of the drain under construction with all requisite details in accordance with law.
I.A. No. 71/2024 has been filed by State of Uttar Pradesh for waiver of the cost imposed by this Tribunal vide order dated 04.01.2024 on the ground that the respondent no. 1 did not receive any notice and there was no intention on its part to cause unnecessary adjournment and delay in appropriate resolution of the environment issues involved in the case.
On perusal of the record it is found that no notice had been served on Secretary, Environment, Forest & Climate Change Department, Government of Uttar Pradesh and in view thereof I.A. No. 71/2024 is allowed and costs imposed on respondent no. 1 are waived.
The District Magistrate, Deoria has by his reply dated 07.02.2024 forwarded additional report of storm water drains and current operational status submitted by Mr. Pramod Kumar Gautam, Executive Engineer, Uttar Pradesh Jal Nigam (Nagriye). The relevant part of the same is reproduced below:-
None has appeared for the applicant and the factual position as emerges from the report of the Joint Committee and responses filed by the respondents is not disputed/controverted by anyone.
We have heard learned Counsel for the respondents and gone through the material on record.
The Deoria city is located in Gangetic plain predominated by sandy loam soil which is susceptible to seepage. The geo-physical setting of the city results in serious water logging problem during monsoon. In view of the facts and circumstances of the case and the material on record, we are of the considered view that the project scheme of storm water drainage as designed/planned in Deoria for the control of water logging problems may be undertaken. However, slabs on the top should only be on those location/places where requirement/necessity of right of the way arises.
Keeping in view the ground realities and to ensure prevention and control of water logging problem in municipal limit of Deoria the following directions are given for strict compliance:-
i) The excavated soil need to be stored on a designated place to avoid its spread on road and prevent dust pollution.
ii) The water tankers should be in place for spraying water on the affected areas to prevent dust from being airborne.
iii) Steel sheet/netlon should be used on both sides of drain during soil excavation to prevent spread of dust in the area.
iv) The compensatory afforestation in lieu of 58 road side trees permitted for removal/denudation by Forest Department should be undertaken by DFO, Deoria with the amount of Rs. 10.47 lakh already allocated for the purpose. The compensatory afforestation with native species need to be done with the objective to develop a small biodiversity park at appropriate location in the area.
v) The plantation on both the banks of the storm water drain should be carried out by suitable grasses, shrubs and native trees including bamboo for the protection of banks from erosion and enhancing aesthetic/scenic value of the drain. The DFO, Deoria is made nodal officer for this task and U.P State Jal Nigam is directed to provide necessary funds to DFO, Deoria for this purpose within one month of the demand raised by him.
vi) There should be foolproof mechanism to prevent mixing of municipal sewage into the storm water. The Regional Officer, Gorakhpur and Executive Officer, Municipal Council, Deoria are directed to ensure regular monitoring in this regard.
The original application is disposed of with the above mentioned directions while leaving the parties to bear their own costs.
A copy of this order be forwarded to the applicant and the Chief Secretary, State of Uttar Pradesh, the Secretary, Environment, Forest and Climate Change Department, Government of Uttar Pradesh, the District Magistrate, Deoria, the Executive Engineer, PWD, Deoria, the DFO, Deoria, the Executive Officer, Municipal Council, Deoria, the Executive Engineer, U.P. Jal Nigam, Deoria and the Member Secretary, State Pollution Control Board by email for information/requisite compliance.