AI Structured Summary
Not yet generated for this judgment
Judgment
The Applicant Mr. Vinod Chopra calming to be environmentalist has approached this Tribunal under provision of Section 14 of the National Green Tribunal Act, 2010 (for short NGT Act). He has brought into party array the State of Haryana as Respondent No. 1, Municipal Corporation of Gurgaon as Respondent No. 2, Haryana Urban Development Authority as Respondent No. 3, Department of Forests as Respondent No. 4, Haryana State Pollution Control Board as Respondent No. 5. Mentioned herein the Respondent No. 3 is the project proponent and thus a contesting party.
The issue in this application pertains to the filling up of the storm water drains and creating a concrete box like drain to carry run off rain water in the city of Gurgaon.
The factual matrix of the case is the applicant is a resident of Gurgaon and is directly affected by the activity of concretization of the storm water drain.
Respondent no. 3 HUDA is undertaking a project of concretization of natural storm water drain in gurgaon.
That the Chakkarpur bund was build during the British Era in the foothills of Aravallis to protect the abadi and agricultural lands of Chakkarpur and other villages from flooding. The bund passes through chakkarpur, Wazirabad and Ghata villages. Adjacent to this bund is rain water nallah, inot which water from upstream area of the bund would get collected and flow. Bund was notified as protected forest under the provisions of Indian Forest Act, 1972 vide notification dated 06.10.1972.
The said Nallah from Chakkarpur to Wazirabad is about 5.2km long and varies from 8-20 ft in width.
There is also another rainwater nallah covering a length of 1.2 km and the drain flows through Sector 43 Wazirabad.
The originally these drains were desgined to carry the extra water during monsoon seasons. However, today these drains are in a very dilapidated condition and have been reduced to sewage drains. Untreated sewage from various sources is flowing into the drains and nallahs have been clogged or narrowed down due to dumping.
HUDA has undertaken a 90 Crore project of covering up and concretizing the storm water drains in Gurgaon. The respondent authority is planning to construct a small box drain with a concrete base, sides and top of about 4-5 feet width and height. They are also filling up he already existing rainwater nallah.
That concretization of the storm drain amounts to non forest activity and without taking requisite permission under Section 2 of the Forest (Conservation) Act, 1980, the Same Cannot be permitted. During construction the said concrete drains, trees which were planted on the bund have been felled by the executing agency and this is in gross violation of the said Act.
He contends that Concretization of drain has various harmful implications. By completely filling up the strom water drain, there would be drastic reduction in rainwater holding capacity and this would lead to increased flood risk. Entire Gurgaon area has been declared as notified area by CGWA. There is no action plan as to how sewage already in the drain would be treated by HUDA or the concerned department
It is urged that respondent no. 4 could have established an STP plant rather than incurring huge expenditure by undertaking an activity which would only lead to urban disaster.
That having strom water drains is essential in urban areas and it is essential that they must be kept obstruction and pollution free. There are various advantages of open drainage system.
The applicant would submit that the said activity of constructing a concrete drain is in blatant violation of this Tribunal's Directions and judgment in the case of Manoj Misra Vs. Union of India & Ors. The Respondent No. 1 was a party to the above mentioned case and have still chosen not to take any action against the said project.
The news article titled "Stormwater drain being covered by HUDA: NGO" published in Times of India reported that the HUDA is undertaking to cover 9 Km of Strom water drains. HUDA officials have already filled up a 5Km Stretch of the drain with soil while building concrete drain parallel to it to carry the aravali rainwater run off.
Another article titled "Good monsoon means flood in Gurgaon" published in Hindustan Times on 17.04.2016 points out that about 60% of the city is concreted and the nallahs have disappeared, thereby not allowing rainwater to seep into the ground.
The activity of filling up and concretization of existing rain water drains/nallahs will have various adverse consequences and may lead to flooding during monsoons. Therefore, it constitutes substantial question relating to environment U/S 2(m) of the NGT Act, 2010 which this Tribunal has jurisdiction to settle u/s 14 of this Act.
All studies have shown that concretization of drains is a major factor for urban flooding during monsoon seasons.
Storm water drains act as natural ground water recharge sources and helps in maintaining the water table.
It is essential to keep storm water drains open to sky as it ensures that the water that flows in these drains is well oxygenated.
Instead of complying with the directions of this Tribunal, the respondent no. 4 is spending huge amounts of public money in constructing the concrete drain.
He relies on the decision of the Hon'ble Supreme Court to contend that the term forest would cover all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2 (i) of the Forest Conservation Act in the matter of T.N. Godavarman Vs. UOI and ors.
He relies on the decision of Hon'ble SC in Indian Council for Enviro Legal action Vs UOI has emphasized that the non-implementation of the provisions of an Act results in gross injustice which as to be remedied.
It is alleged concrete drains is in violation of precautionary principle as enshrined in Vellore Citizens Welfare Forum case. On the aforesaid facts and ground has sought following relief.
Direct the respondent no. 3 to immediately stop the construction of the concrete drain and filling up of existing storm water drain in Gurgaon and restore the area back to its original position.
Direct the respondent no. 3 to pay environmental compensation for causing damage to the natural storm water drain as well as felling of trees in the protected forest.
Direct the respondents to ensure no untreated sewage enters the natural storm water drain in gurgaon and to take steps to keep the storm water drains clean in compliance of the orders of this Tribunal in the matter of Manoj Misra V. UOI.
Upon admission notice was issued to respondents and respondent no. 3, which is the main contesting respondent has resisted the application.
Reply on behalf of Respondent no. 3 i.e. HUDA
That in the present application, applicant alleges violations of environmental obligations by the respondents by way of undertaking a project of concretizing and covering natural storm water drains on untenable grounds and the application is liable to be rejected.
They have refuted all contentions of the applicant and inter alia have raised following defence.
The natural drainage of Gurgaon is from Aravali hills on eastern side to Najafgarh lake on western side. There are 4 natural creeks in the Aravali side of Gurgaon for draining out the rain water into a storm water drain along the bund.
All the creeks terminate into drain. The said drain is meant to carry run off from aravali hills during rainy season. Length of the said drain is about 5.2 kms. It is a matter of record that the drain helps in chanellizing rain water during rainy season.
It is submitted that the drain needs to be concretized and covered under the project for the public good.
The answering respondent was undertaking the project by way of protective measure to avoid floods by levelling, concretizing and covering the said drain.
Further it is contended that project does not require EC from SEIAA under Entry 8(A) of EC Regulations 2006 as the project does not fall under the category of building and construction.
The present application is not maintainable and the contention of the applicant that the project is in violation of Manoj Mishra Judgement is misconceived.
Keeping in view the above, present OA needs to be dismissed. The applicant has responded to the grounds in the reply by a rejoinder.
It is noticed the respondent no. 3 has admitted that the natural storm water drain in question flows along the Chakarpur Bund and is meant to carry run off to Kost Nallah. Kost Nallah also k/a Badshahpur drain is also a natural and storm water drain. It is primary drainage of Gurgaon and encroachment and filling of this drain was primary reason for flooding of Gurgaon.
The upstream and downstream zones of the kost nallah is within the territorial limits of Delhi and the Judgement in Manoj Misra case will directly apply.
The respondent no. 3 has urged that the concretization is necessary because the drain overflows due to the uneven slope and various blockages in its natural flow and other reasons as well.
It is further submitted that it is the duty of the respondent no. 3 to ensure that the storm water drain is pollution and obstruction free. Respondent should undertake cleansing and levelling of the drain instead of undertaking a project to concretize and cover the storm drain.
That the concretization has no harmful implications.
That the project envisaged by the Respondent no. 3 is not blatant violation of the spirit, observations and directions made by this hon'ble Tribunal in the Manoj Misra Judgment.
The another drain has been wronly named as "Genpact Crossing-Ardee Crossing Drain" is in fact a habitat area and therefore it is required to cover the same to avoid danger to human life.
Besides their respective pleadings the applicant and the respondent have filed written submission Respondent No. 3 would that the present OA has been filed by the applicant on the basis of misapprehensions and misconceived and untenable grounds in regard to concretization of drain.
That the drain flowing along chakarpur bund is 7.37 km long. Out of which 1.65 km has already constructed 5.2 km of the drain are taken under concretization which is under challenge.
That there are 4 natural creeks in the Aravali side of Gurugram for draining out the rain water into a storm water drain along the bundh.
All the Creeks terminate into the drain in question which carries rain water towards Kost Nallah and ultimately meets Najafgarh drain.
That said drain is not a natural drain, the drain came into existence after making the bund.
That the drain overflows during monsoon due to its uneven slope and various blockages caused by mud in its natural flow.
Drain turns into swampy marsh during rainy season, consequently, a project to level, concretize and cover the drain was planned.
That drain needs concretization because number of reasons like height of the bundh is 4 to 7 meters and this makes it dangerous for the persons who walk by and pass through the bund. During rains mud from the embankment gets settled in the drain, thereby obstructing its natural flow.
That project was undertaken as protective measure to avoid floods.
The HUDA has planned to construct various recharge wells alongside drain and urban area and creeks and non urban area. The 20% of rainfall is proposed to be injected through recharge wells in the Urban area.
The HUDA has planned to construct 19 check dams in arravali hills. All the ground water stored in basin will ultimately in-filter into the ground which will help in increasing the ground water table in the area. In addition 268 check dams also planned in the upper hill areas of Aravalli to collect rain. Plantation will also be done in urban and non urban area.
HUDA further submits that project does not require EC as it doesn't falls under Entry 8(a) and Entry 8(b) as the built up area of both drains is 14,484.60 and 2640 sq meters respectively which is less than 150000 sq metres as required under Entry 8(b), as such exempted from obtaining EC under EC Regulations 2006.
That the facts and circumstances of the present case are different from that of Manoj Mishra case.
That the drain doesn't fall under the protected forest under the provisions of Indian Forest Act, 1927. In fact drain was never a part of bund and runs adjacent to it. It is a matter of record that Bund is a notified Protected Forest Land under the said notification. Further it is submitted that there is no felling of trees.
Therefore, the present OA be dismissed and HUDA should be permitted to complete the work in the interest of justice.
Reply of Govt. of Haryana, Respondent no. 4
That chakarpur bund is a protected strip forest vide govt. of Haryana notification no. S.O. 163/C.A. 16/27/S.29/72.
That the drain flows along the Chakarpur Bund but it is not a protected Strip Forest.
That there exists a drain adjacent to Chakarpur-Wazirabad Bund. That while executing the work on the drain, 284 trees have been damaged for which damage report has been issued. DC of Forests has been asked to give the name and designation of the erring officials responsible for felling trees.
If any part of bund is used in the construction of Nallah, prior approval from the competent authority is required under the Forest Conservation Act, 1980.
That office of the DC of Forest, Gurgaon Vide letter no. 893-C dated 10.06.2016 had intimated EE, HUDA, Division No. 1 Gurgaon, that in case of any non-forestry activity in land which is part of Bund, necessary permission under Forest Conservation Act, 1980 will be required.
Reply of Behalf of Respondent No. 5 i.e. Haryana State Pollution Control Board
The allegations and contentions made against the answering respondent may not be deemed admitted mere for the reason of non-traverse and same be treated as denied.
The applicant has raised the concerned of nallah and felling of trees which is primarily within the domain of Forest Department and Executing agency i.e. respondent no. 3. Nothing survives in the present OA against the answering respondent.
It is therefore prayed that the present OA may kindly be dismissed qua the answering respondent.
We have heard Mr. Rahul Choudhary learned Counsel appearing for the applicant and Mr. Rahul Khurana appearing and behalf of Respondent No. 3-HUDA and also the learned Counsel for the other respondents including Pollution Control Board and examined the material on record in supplementation thereto.
At the outset we may observe the anxiety expressed by the applicant is not ill-founded. He has shown genuine concern for the Environment more particularly with regard to ground water degradation, protection of eco-system and longity for the flora and fauna in the area in question. His main grievance is against concretization of the drain which according to him is a natural drain. Concretization is a process by which the natural drain will be virtually rendered confined to a conduct like system thereby channelizing the water through a media which is man-made media (concretization) against the natural follow which provides for natural replenishment. It is also the case that the natural drain admittedly has several advantages and positive factors which aids in protection of environment, flora and fauna. Natural drain caters and provides a natural source of water for the growth of forestry, trees and maintains even good quality of air. Referring of the judgment in the case of Manoj Mishra Vs. Union of India & Ors and Shri Hazi Arif Vs. State of UP and others he has sought to bring home the point that the Statutory Authorities are required to meticulously follow the directions of the environmental laws related to maintenance of natural drains and not to act contrary to it no matter what may its philosophy fo alleged advantage. However, it is material to note, the applicant has not seriously disputed the nature of civil work undertaken by HUDA in discharging its statutory duty as development authority. Therefore, we shall examine the issue keeping in mind Section 20 of the NGT Act which mandates the Tribunal shall follow the cardinal principle stated therein while the deciding the dispute brought before it keeping in mind the interest of the environment as paramount consideration. Thus, we shall examine in the case made out by the both sides and balance it keeping in mind the principle of sustainable development and precaution principle.
On facts there is not much dispute in the sense while the applicant alleges the Respondent No. 3 has embarked on a project to concretize natural drain in Gurgaon which is situate near Chakarpur Bund in the foot hills of Aravali.
It is also not in dispute that Chakkarpur bund was build several decades ago during the British Era intended to protect the abadi and agricultural land of the Chakkarpur village from flooding and destruction. It is not disputed that the bund pass through Chakkarpur, Waziabad and Ghata villages. It is material to note that the drain in question described as water nallah has as a link. The rain water drain is alongside the bund from which water from upstream area of the bund would get collected and flow.
The bund was undoubtedly notified as protected forest under the provisions of Inidan Forest Act, 1972 Vide notification dated 06.10.1972. It is about 5.2 km long and varies from 8-20ft in width to a larger and narrow extent. It is not a uniform witdth route but varies from several Points.
The main allegation of the applicant are that HUDA is filing up the Strom water drain and creating a box like drain to carry out running of water in the city of Gurgaon. The said activity are volatile of the directions in the Manoj Misra Case and that such activity will directly affect the ecology. Respondent No. 2 the Municipal Corporation which is responsible for ensuring a clean and healthy environment within local limits and HUDA- Respondent No. 3 has failed in carrying out statutory duty. The Respondent No. 4 the Divisional Forest Officer who is responsible for upkeep and protection of Forest has also failed according to the applicant. The bund has large number of trees on the either side. The water requirements for survival of these trees is only through open nallahs running alongside the bund. Therefore the same was included in the notification dated 6.10.1972 as protected forest under the provisions of Forest Act by the State of Haryana. Historically it is a water collection system and the bund is used by locals to harvest rain water and channelize it. It is a linear mount created to prevent rain water from flowing away. The nallahs through the heart of the Gurgaon including DLF Phase 4 and 5 in sector 27, 28, 43, 45 & 46. He has produced the map of sector 43 Gurgaon prepared by Department of Town and Country Planning dated 06.09.1996 showing the bund as well as nalla labeled as carrier channel. Another Rain water nalla originates in Aravallies and flows through janpat crossing the R. D. City crossing to 1.2 Km which helps channel during peak rainfall. This Nalla are being ruin by the Municipal Corporation and HUDA. Nallahs are designed to carry extra water during monsoon but today the drains are dilacerated and reduce to sewage drains. Untreated sewage from various sources is flowing into the drains. The most of the places these nallahs have been clogged or narrowed down due to dumping of waste matter including plastic etc. It is alleged that HUDA has undertaken to work without sanction without obtaining Environmental Clearance and have already filled up 5 KM stretch of the drain with soil by building a concrete drain parallel to it to carry aravali rain water. He relies on the article published on 25.04.2016 at annexure A-4.
It is further alleged for carrying out such activity HUDA has not taken permission of the Forest Department and without requisite permission under Section 2 of the Forest (Conservation) Act, 1980 they have felled several trees, annexure 5 are the photographs. Highlighting the benefits of non-concretization in para 14 of its application he has sought the reliefs as indicated above.
It is not in dispute and also has observed by the Tribunal in Manoj Mishra case that concretization should be avoided, natural drain should be maintained in its natural form which has the following advantages:-
a. Serve as ground water recharge Channels;
b. Serve as greenways;
c. Provide much needed open stretches in the cities which are otherwise turning into concrete jungle and heat sinks;
d. Ensure water that flows in these drains is well oxygenated and hence wholesome before it finally drains into a river, sea or a lake;
e. Help clean naturally the waste water if any that flows in these drains:
f. Maintain biodiversity and habitat conditions for a variety of plants and animals including small mammals, reptiles, birds, butterflies, etc.
g. Act as non-motorized transport channels;
h. Help maintain/increase value of property lying close to these channels in cities where widespread concretization has turned an urban area/city into a heat sink and where open spaces are available only at a premium.
We take notice of the fact the Tribunal in the case of concretization of drains in Delhi observed as follows:-
"61. Upon its examination, the view expressed by the Expert Committee is not only acceptable, but is in consonance with the settled principles of ecology. The natural drains cannot be permitted to be concretised or covered, as it would not only destroy the flora and fauna but would even destroy the ecology of the entire area. We are in the agreement with the reasons given by the Expert Committee that it is neither appropriate nor in the public interest to permit Corporations to concretise and cover all the natural drains of Delhi. In order to prevent wastage of public funds which have been spent recklessly, even though without proper application of mind and after consideration of requisite data, we would permit the Corporations to keep intact the construction done so far on the drains, particularly, where the work has fully been completed in all respects and they have already been covered. However, where work has just commenced or just a partition wall has been erected, in our considered view all this work should be dismantled, especially, 58 where only saria (iron rods) have only been fixed. Iron removed from these places can safely be used in construction of other projects by the Corporations, including construction and setting up of STP's and allied infrastructure. Thus, it would cause minimum, albeit unavoidable waste of some public money. M.A. No. 88 of 2014 has been filed by a Resident Welfare Association praying for directing the Corporations to protect the environment, remove pollutants and prevent encroachments from drains. The Corporations or such authorities are liable to be directed to clean all the drains of Delhi not only of the area pertaining to the applicant, but also ensure that the drains are kept clean and obstruction free in the entire NCR..."
This Tribunal keeping in mind the observation of the Tribunal passed following direction:-
"xviii. We direct all concerned to make every possible effort to ensure that the storm water drains do not carry sewage. Sewage may be carried through those drains upon which the STP's have already been installed, till the completion of the project. After the completion of the project, steps shall be taken so that only minimal quantity of treated water from the STPs reaches Yamuna.
xxii. 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. Where substantial work (more than 85%) has been completed, such work is permitted to be completed by the Corporation after obtaining specific orders from the Tribunal in that regard. Rest of the work, where construction has just begun, the construction, including iron material, shall be removed. While completing such remnant work, Corporation shall ensure that the cross section of the drains to carry the requisite storm water for the flood of once in 25 years and other effluents, are not compromised. Such construction and/or removal shall be carried on in terms of paragraph no. 61 of this judgment."
Now the question is in view of direction of the Hon'ble Supreme Court and direction of this Tribunal could concretization in Gurgaon be allowed.
First it could be said the issue brought before the Hon'ble Supreme Court related to Delhi were the natural drains were destroyed and completely covered. We are dealing with the case similar but in relation to Gurgaon, therefore there is area wise distance. It is not disputed before us that Gurgaon is a developing city where the speedy growth has rendered mushroom like colonies coming up. In fact HUDA and the Local Municipal Corporation have to match the demand of protecting health of the citizens against unplanned layouts and open drains. We must keep in mind a distinction between a open drain and natural nallahs or drains. The first contention of HUDA is it is in the process of covering the present drain which were not earlier the natural nallah. It is pointed out to the fact that the natural nallah the because of the population of the area is under threat of destruction by erratic dumping of waste creating adverse impact on the environment and ecology. It is has become a mosquito menace in the area resulting in life threatening diseases. It has done all its best to prevent sewage relapsed into the drain in question but it is unmanageable.
It has come out with a specific case that by concretization all it is doing is to ensure protection of these drains at the same time providing required number of wells for ground water replenishment. It has produce a sketch showing design of the drain and we have perused the same. Firstly it is not in dispute that the drain in question is neither in protected forest nor it s covered under the notification issued by the Forest Department on 06.10.1972.No doubt the bund is notified as coming within the mischief of the said notification as protected forest but the drain in question is not covered. This has been affirmed by the Forest Department through its affidavit filed before the Tribunal.
The Forest Department-Respondent No. 4 has also categorically stated in its reply that drain flows alongside the Chakkarpur Bund but it is not a protected or restricted forest. It admits that the HUDA has undertaken the work of concrete base drain alongside the Chakkarpur-Wazirabad Bund. It further stated categorically that while executing the work of drain 284 trees have been damaged for which damage report no. 35/2 dated 10.05.2016 for felling 171 trees and damage report no. 2001/201 dated 06.05.2016 for felling 43 trees have been issued. The Superintending Engineer HUDA Circle-II, Gurgaon vide letter no. 1065 dated 24.06.2016 of the office of Deputy Conservator of Forests has been issued to inform the name and designation of the erring official responsible for felling of trees. Thus the Forest Department has supported the applicants case about felling of the trees and that is was an act of irresponsibility committed by Forest officials showing contraventions of the Forest Conservation Act, 1980. However, it is material to not the Forest Department further stated that as far as Bund is concerned no construction activity which is likely to effect the bund require prior permission from the Competent Authority under the provisions of Forest Conservation Act, 1980 but has hastened to add that construction is not on the bund or portion thereof but is on the nallahs running alongside the Bund.
The letter of the Deputy Conservator of Forest, Gurgaon dated 10.06.2016 informing Executive Engineer, HUDA, that in any non-forest activity permission has to be obtained is relief. It is also stated that the Executive Engineer, HUDA Division No. 1, Gurgaon through its letter dated 21.06.2016 applied for permission under Forest Conservation Act, 1980 for diversion of Forest land of Chakkarpur Bund and the application was processed
The HUDA has responded to such contentions , drawing our attention to the fact that as regard the project activity in question is concerned the Deputy Conservator of Forest, Gurgaon has granted clearance on 24.06.2016. We have persued the said letter of Deputy Conservator of Forest, Gurgaon. It is seen the subject consideration was regarding digging kacha channel through Sector 53, Gurgaon in drainage belt along Wazirabad measuring 1900 mtr. After taking note of the fact that HUDA was proposing a box like drain on Chakkarpur-Wazirabad drain adjacent to Chakkarpur Bund which is a notified forest area vide notification dated 02.12.1981 has further stated in the letter that the matter was examined in the light of the orders of this Tribunal in O.A. NO. 226 of 2016- Vinod Chopra Vs. Union of India whereby there was a stay of the execution of work. The Deputy Commissioner Gurgaon in its letter dated 22.06.2016 had directed the HUDA to compete the work of construction, in view of certain emergent situations. Therefore, considering all the situations the Deputy Conservator of Forest has informed the Superintending Engineer of HUDA that the project activity being on the nallah alongside the bund is not a proected forest under the said work of construction can proceed. It has granted permission to HUDA to construct the nallah as per rules and within the directions of the NGT and for every tree felling prior permission should be obtained. He also imposed certain permission in granting such permission. In the circumstances as on the date the matter was heard. The HUDA has permission of the Forest Department to proceed with project activity basically on the ground which was not coming within the projected Forest.
Now, therefore we have to see whether the concretization is a necessity. We have already observed that the direction of the Hon'ble Supreme Court actually prohibited concretization of natural drain but in the instant case it is very clear whether the natural drain is coming within the protect forest.
The Admitted fact is that it the nallah running in the city which was uneven was used into sewage and dumping of Municipal Solid Waste becoming a health hazard and risk to the people. The area falls in creak one between sector 26(a) and 27, Creak 2 between sector 42 and 43 DLF phase 5. The work of construction has proceed further as on the date the matter was heard substantial portion of the work was complete.
In view of our finding as recorded above this application is allowed partly subject to following directions to be complied by the Project Proponent:-
1) Respondent No. 3-Haryana Urban Development Authority, the project proponent, shall ensure that afforestation compensation and loss of 284 trees of native species destructed by its official during construction activity of drain in question and deeproot trees along with said bund to prevent soil erosion, shall be complied within a period of one year from now.
2) Respondent No. 3 shall ensure sewage, MSW in the area shall not be allowed to be flown into the storm water drain even after concretization and separate provision be made for disposal of MSW and sewage and periodical report shall be submitted once in three month to the State Pollution Control Board. The Respondent No. 2 shall also comply all these directions along with Respondent No. 3.
3) Respondent No. 3 shall ensure that the construction activity of the Drain is strictly in terms of the report/details furnished to the Tribunal and that there is no division in its dimension, width and height.
4) The Project Proponent shall ensure that the total extent of construction of the structure in the project shall not be more that 17124.60 sq.mt and which shall include total built up area of another drain, which is subject matter of the proceeding in this application. In other words the built up area of the project drain shall be 14,484.60 sq. mt. and 2640 sq mt. so the total area is 17,124.60 sq.mt.
5) The State and HSPCB shall inspect and ensure that the structure so to be put shall not exceed this extent.
6) As it is stated by the Project Proponent itself that concretization of the drain is intended to allow the overflow rainwater from the area and do not cause flooding and further ensure smooth flow of water. We direct Respondent No. 3 to ensure that the flow of water into this drain shall not be hindered by any material waste or obstacle and water flow in the drain should be free.
7) Proper gradients shall be maintained for free flow of water and periodical maintenance shall be ensured by the Project Proponent.
8) In view of the undisputable fact that the 284 trees of native species have been felled by senseless and irresponsible conduct of the officials of the Respondent No. 3 and competent authority have already directed action to be taken against them. Respondent No. 3 shall ensure appropriate action is taken and report result of such proceeding within three month from now.
9) The decision of this Tribunal taken in respect of the drain in question shall not be taken as precedent for further relief on this account and Respondent No. 3 shall not concretize any other drain which is natural storm water drain, except as stated in this order.
10) We further direct the HSPCB to inspect and ascertain whether there is proper recharge of ground water through these 268 check dams and 8 rechargeable rainwater wells proposed to be constructed by the HUDA.
With the above directions, this Original Application is disposed of. The drain project undertaken by HUDA in public interest is allowed, subject to certain aforesaid conditions.
M.A. No. 423/2016, 682/2016 and 149/2017 which are pending and require no independent consideration are disposed of along with this O.A. No. 226 of 2016, with no order as to costs.
Compliance report as indicated in the directions shall be filed and when filed the Registry is directed to register it as a separate proceeding.
Interim order of stay shall be modified to the extent indicated in this judgment.