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Judgment
This original application involves the issue of setting up of a Tent City Project by the river side of Ganga at Varanasi for commercial purpose.
It is alleged that the project is detrimental to flora and fauna and results in untreated sewage being discharged into river Ganga and has been set up in violation of “The River Ganga (Rejuvenation, Protection and Management) Authorities order, 2016”.
Tribunal had constituted a joint committee, which had filed the report dated 24.05.2023 showing number of violations by the project proponent and also reflecting that project had operated without obtaining Consent To Operate (CTO) under the Water (Prevention and Control of Pollution)Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981.
Tribunal in the proceedings dated 30.10.2023 had noted that setting up of Tent City on the bank of river Ganga at Varanasi is a seasonal activity and for the year 2022 (2022-2023), project proponent had set up the Tent City which was made operational on 16.01.2023 and was closed down on 31.05.2023 before arrival of monsoon and it was further noted that the process for setting up the Tent City for the year 2023 (covering period from 2023-2024) had started.
In the proceedings dated 15.12.2023, Tribunal had taken note of the fact that the construction material and structures were still lying on the river bank/bed side and no action for remediation of the damaged environment was taken. Accordingly, Tribunal had directed the Member Secretary, UPPCB to appear on the next date to explain as to why action for remediation of the damaged site has not been taken up by UPPCB till date and also to inform action for prosecution of violators.
In those proceedings, an issue relating to Turtle Sanctuary and existence of turtles at the site was taken note of and the issue of de-notification of the Turtle Sanctuary was noted.
So far as setting up of the Tent City for the year 2023-2024 is concerned, Learned Counsel for the respondents have informed that this year no decision has been taken to set up the Tent City.
UPPCB has filed the response on 05.02.2024 disclosing that on 16.01.2024 (wrongly mentioned as 16.01.2023) during inspection of RO, UPPCB, Varanasi on the site of Tent Cities no construction material and structures were found.
It is further disclosed that in pursuance to the joint committee report dated 24.05.2023, show cause notice was issued to the project proponent for imposition of environmental compensation (EC) at the rate of Rs.12500/- per day for the period from 15.01.2023 to 31.05.2023 for operation of the Tent City at Varanasi without obtaining prior CTO and, accordingly, environmental compensation of Rs. 17,12,500/- each, against both the project proponents has been imposed and the proceedings have been initiated to recover the EC.
Member Secretary, UPPCB appearing through virtual mode has also submitted that the project proponent has removed all the material from the site and that environmental compensation of Rs. 17,12,500/- has been imposed on each of the project proponent.
So far as, issue of shifting of Turtle Sanctuary is concerned, joint inspection report dated 24.05.2023 states as under:-
“4.2. Impact of the project on the Turtle Wildlife Sanctuary
1) The tent city was allowed to be established on the Kachhua (Turtle) Wildlife Sanctuary, Varanasi which was notified vide letter no. 1485/14-4-2008-823/2008, dated 21.05.2009 which was rescind vide notification no. 336/81-4-2020- 823/2008 TC Lucknow, dated 17.03.2020 with foot note that the notification shall be subject to the final decision of the Supreme Court in L.A. No. 117425/2019 and 117429/2019 in Writ Petition Civil No. 337/1995. (Copy of Turtle sanctuary is annexed as Annexure-1-1)
ii) Further, Govt of Uttar Pradesh vide notification no. 346/81-4-2020-823/2008TC dated 17/03/2020 notified its intention to constitute the area along both sides of 30 km stretch of river Ganga falling in the districts of Bhadohi, Prayagraj and Mirzapur. (Copy of de-notified the turtle sanctuary is annexed as Annexure - 1-2).”
It is the submission of Learned Counsel for official respondents that the issue of de-notification of Turtle Sanctuary is subject matter of consideration before Hon’ble Supreme Court in pending I.A. in Writ Petition (C)202/1995 and another Writ Petition mentioned in the joint committee report.
In the additional affidavit filed on behalf of respondent no.1-Union of India, Ministry of Environment, Forest and Climate Change, New Delhi dated 27.01.2024, it was stated that a proposal for de-notification of Kachhua Wild Life Sanctuary, Uttar Pradesh as per the process, was received in the Ministry from the State Government along with the recommendations of the SBWL and Chief Wild Life Warden, Uttar Pradesh and the said proposal was considered in the 50th meeting of the SCNBWL held on 07.09.2018 and that SCNBWL has recommended the proposal of the State Government of Uttar Pradesh along with the conditions SBWL and informed that the State Government may proceed with the process of de-notification of existing Kachhua Wild Life Sanctuary and notification of proposed Wild Life Sanctuary as per the prevailing instructions and relevant provisions of the Wild Life (Protection) Act, 1972.
Learned Counsel appearing for MoEF&CC has submitted that only a recommendation has been made in terms of Sub-Section (3) of Section 26 A of the Wild Life (Protection) Act, 1972.
It is worth-noting that Wild Life Protection Act is not a scheduled enactment under the NGT Act, however, if de-notification of the Kachhua Wild Life Sanctuary has any impact on maintaining aquatic environment of River Ganga at Varanasi, then it may fall within the scope of consideration by the Tribunal. However, if such an issue is already pending with Hon’ble the Supreme Court then, Tribunal need not go into it. Therefore, Learned Counsel for the parties are directed to place on record the scope of the matter concerning de-notification of Kachhua Wild Life Sanctuary which is pending before Hon’ble the Supreme Court and argue the issue in the light of observations made above.
List on 12.04.2024.
I.A. 888/2023 has been filed on behalf of respondent no.1 for waiver of cost imposed by Tribunal by order dated15.12.2023.
Tribunal by order dated 15.12.2023 had noted that proper assistance was not rendered at the instance of Counsel for respondent no.1 and had, accordingly, permitted the Counsel to file appropriate response on the aspect noted in the order subject to payment of cost of Rs.25,000/-.
In the IA only reason disclosed seeking waiver is that in compliance of the direction of the Tribunal appropriate affidavit has been filed on 22.12.2023. In the circumstance of the case, instead of waving of the cost, we are inclined to reduce the cost and impose a token cost of Rs. 5,000/-. Hence, order dated 15.12.2023 accordingly stands modified.
Accordingly, IA No.888/2023 stands disposed of.