Disposed

Dr Tarun Singh Chauhan v. State of Madhya Pradesh

NGT19 Oct 2022Original Application No. 85/2021

Case brief

AI extract

What is this about?

The National Green Tribunal addressed allegations of environmental violations regarding sewage and encroachment at residential projects in Bhopal. The court dismissed concerns over forum shopping due to pending civil/criminal proceedings and directed the State Pollution Control Board to realize environmental compensation for past violations before disposing of the application.

What did the court decide?

Directed realization of environmental compensation for past violations and removal of encroachments based on revenue court decisions; no further action directed pending court decisions.

Dr Tarun Singh Chauhan vs State of Madhya Pradesh — Environment and Pollution | NGT (2022)

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BEFORE THE NATIONAL GREEN TRIBUNAL CENTRAL ZONE BENCH, BHOPAL

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(Through Video Conferencing)

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Original Application No. 85/2021 (CZ)

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Dr Tarun Singh Chauhan Applicant(s) Versus State Of Madhya Pradesh & Ors. Respondent(s)

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Date of hearing: 17.10.2022

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Date of Uploading : 19.10.2022

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CORAM: HON’BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER HON’BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER

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For Applicant (s):	Mr. Sambhav Sogani, Adv.
For Respondent(s) :	Mr. Sachin K.Verma, Adv.
	Mr. Saurab Mishra, Adv.
	Ms. Gunjan Chowksey, Adv. Ms. Samridhi Sharma, Adv.

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ORDER

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The issue raised in this application is violation of environmental norms in development of colony situated at village Bawadia Kalan, Tehsil Huzur, District Bhopal. It is alleged that flow of running nallah near the project DK Cottages has been obstructed and the catchment area has been encroached upon by the Respondent No. 7 by constructing walls and not leaving Green Belt area open. No sewage and solid waste treatment and disposal system have been installed in either of the projects and the untreated sewage and solid waste are being dumped into the nearby nallahs directly. No roof water harvesting system/rainwater harvesting system has been installed in either of the project, due to which ground water levels in the said region are severely being affected and Respondent No. 7 has engaged into deforestation by cutting the trees in the

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catchment area of the nallahs and constructing commercial complex over

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the said land, causing loss to flora and fauna of the said region.

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Grievance of the applicant are as follows :

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i. That the respondent no 7 has developed two projects which are adjacent to each other. That the first project is named as "DK Cottages" and the second is terms as "DK 24 Carat". That in the first project DK Cottage on Khasra No. 51, as depicted in the approved layout plan issued by the Town and Country Planning, Bhopal, there has been a running Nala situated on the government land, which has not been a part of the respondent no 7's land. That Respondent no. 7 had illegally encroached upon the government land and had obstructed and changed the course of the Nala and had created boundary wall on the said government land and near the running Nala due to which the natural course as well as the flow of the running nala has changed.

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ii. That as per the approved lay-out map the Respondent has to leave 9-meter-wide space from the said natural nala but he same has not been followed by the respondent no 7. That infact, the respondent has got the nearby area into commercial land without leaving the space of 9 meter from the said natural nala and therefore the said construction and selling the said shops are illegal.

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iii. That similarly in the project DK 24 Carat, Respondent no. 7 has changed the course of running nala by cutting the nala and tampering the actual course as well as covering the nala, That it is clear in the layout that the nalla was there within the approved map and it was crossing from the open area. That the flow of the said nala got shifted from the said area towards the outer boundary of the project. That the same is not correct as it adversely affects flora and fauna of the said area. That this results in getting the said area completely filled with mud water during rainy season.

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iv. That the Respondent no. 7 has not set up Sewage Treatment Plant in either of the projects which is mandatorily required to be installed in order to treat the accumulated sewage in either of the projects. That instead, the sewage/solid waste is directly being dumped into the nearby nala without being treated

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The matter was taken up by this Tribunal on 06.12.2021 and a Joint Committee consisting of Commissioner, Bhopal Municipal Corporation and representative of State Pollution Control Board was constituted with a direction to submit the factual and action taken report.

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In compliance thereof, a Joint Committee submitted the report, which is as follows :

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“In compliance to the orders received, a site visit was conducted on 06.01.2022 by the joint committee consisting of following officials of the concerned departments:

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Shri Neeraj Anand Likhar, Chief City Planner, Bhopal Municipal Corporation (BMC)

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Shd Brajesh Sharma, Regional Officer, MPPCB, Bhopal

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Along with the joint committee Shd M. S. Sengar, Assistant Engineer, Colony Cell, BMC, Shd P. K. Jadiya, Assistant Engineer, Building Permission Cell, BMC, Shri Arjun Singh, Sub-Engineer, Building Permission Cell, BMC, Shri Gaurav Nipsaiya, SubEngineer, Colony Cell, BMC and Shri Adarsh Malviya, Assistant Engineer (C), MPPCB, RO Bhopal were present during the inspection. Petitioner Dr. Tarun Singh Chauhan and builder of DK Cottages and DK 24 Carat Shri Dinesh K. Goyal were also present during the visit of joint committee.

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The joint committee first visited DK Cottages site and then the premises of under-construction DK 24 Carat project site. During the joint committee visit, the geographical location, photographs, and all other relevant information were collected which are incorporated in the report. The observations made during the visit are presented as follows :

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l. GPS location of DK Cottages and DK 24 Carat situated at Bawadiya Kalan, Pallavi Nagar, Bhopal have been recorded using a mobile-based GPS application.

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DK Cottages and DK 24 Carat are constructed by IWs D. K. Construction, Bhopal. GPS coordinates of DK Cottages are 23.18532.N, 77.44498E and DK 24 Carat are 23.18686.N.77.44205ºE.

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Inspection of D K Cottages :

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DK cottages is a completed project having total land area of 6.71 acres and all the units are occupied. There are total 212 dwelling units/duplexes of plot sizes 950 sq.ft., 1200 sq.ft. & 1500 sq. ft.

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The domestic water demand of DK cottages is met with Narmada water supply and at times of shortage of water 02 no. of bore-wells is used to supply the deficit. The water sample from bore-well is collected and the sampling analysis results are awaited.

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5 . One nallah (D-1) flowing from north to south-east direction is located outside the premises of DK Cottages. The main entrance of the colony is approximately 27m away from the nallah.

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A small culvert is constructed on the nallah infront of the entrance of DK Cottages. The width of nallah is approx. 6-8 ft and depth 5-6 ft. On right side of nallah, an open land in trapezoidal shape having approx. area 2670 sq. m. is available with thick plantation and the area is covered with wired-fencing outside the DK Cottages premises. No evidence of cutting of trees is observed.

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Inside the DK Cottages colony, plantation was observed all along the road side and in open spaces. The colony is maintained properly and housekeeping was found satisfactory. No solid waste is found disposed t, in the nallah, some quantity of green waste was found accumulated outside the premises adjacent to the rear-entrance of the colony.

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Septic tank of capacity 200KLD (approx.) has been provided for the treatment of domestic wastewater. The overflow of septic tank is being discharged into the nearby nallah (D-2).

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A copy of tri-party agreement dated 23.02.2015 between Municipal Corporation Bhopal, M/s D. K. Constructions

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Bhopal and D. K. Cottage Jan Kalyan Samiti mentioning the conditions of maintenance of colony services and others is enclosed.

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No rainwater harvesting system was found installed in the units and no commercial construction was observed on the nallah infront of DK Cottage colony Premises.

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Inspection ofDK 24 Carat:

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DK 24 Carat is an under-construction project with 9 blocks of total 250 (3BHK) proposed units. Out of 9 blocks, one block is completed and occupied. The sewage generated from this block is discharged into the nallah after going through septic tank.

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Environmental clearance for DK 24 Carat has been obtained vide letter no. 4656/SElAA/2016 dated 06.12.2016 and consent to establish from MPPCB dated 30.04.2021. The total built-up area of the project is 32,089 sq.m.

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Nallah D-2 flowing from west to east direction is located outside the boundary of DK 24 Carat. The nallah is covered by cement concrete cover by M/s D K Constructions. The approx. depth of nallah is 4-5ft and width is 3-4ft. Boundary wall is constructed all along the periphery of the area.

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During the inspection, a 400KLD capacity underground sewage treatment plant on FAB based system with vortex technology was found under-construction in the north-west comer of DK 24 Carat.

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As per the report of Revenue Inspector, Bawadiya Kalan, Tehsil Kolar, Bhopal dated 20.12.2021, a boundary wall is constructed on some portion of govt. land including small portion of nallah and sewage tank.

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Recommendations :

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l. The overflow of treated sewage from the septic tank of DK Cottages should be connected with the municipal sewer line.

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The encroached land by the DK Cottage and DK 24 Carat should be removed by the builder IWs D K Constructions.

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The sewage treatment plant of DK 24 Carat should be completed and made operational at the earliest.

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Proper arrangement of green waste collection bins should be placed at suitable places in DK Cottages.

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The septic tank of DK Cottages should be cleaned at suitable interval.

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Rain water harvesting system should be installed in DK Cottages and DK24 Carat.

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The matter was again taken up on 09.03.2022 and the Tribunal observed as follows :

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Order dated 09.03.2022

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“In the report, it has been mentioned that there was overflow of septic tank which is being discharged into the open land and further in DK 24 Carat there was a discharge of sewage into the open space/nallah for which the State Pollution Control Board has to take necessary action with regard to the calculation and realization of environmental compensation. Learned Counsel appearing for the applicant has submitted to file the response on the report submitted by the Joint Committee.

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We direct the Bhopal Municipal Corporation and State Pollution Control Board to take necessary actions/ remedial actions against encroachment on land of the Corporation and action in accordance with 2 the Water (Prevention and Control of Pollution) Act, 1974 & the Air (Prevention And Control Of Pollution) Act, 1981 and submit action taken report before the next date of listing . ”

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The Members of the committee visited the site and submitted the action taken report, which is as follows :

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“In compliance to the order of Hon‟ble NGT, a site inspection was carried out by Shri Brajesh Sharma, Regional Officer, MPPCB, Bhopal and Shri Adarsh Malviya, Assistant Engineer (C), RO, MPPCB Bhopal on 06/04/2022 to take necessary action regarding calculation and realization of environmental compensation (EC). The EC is calculated based on the

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observations noted during the inspection which are presented as follows:

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DK Cottage -

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DK Cottage is a completed project consisting of total 212 dwelling units. All the units are occupied and estimated sewage generation of the project is 127 KLD.

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During the inspection the overflow from septic tank flowing into nearby nallah was measured with the help of a bucket of size 10 liters to estimate the average overflow per day which comes out to a tune of 19KLD.

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The environmental compensation to be levied for the discharge of overflow from septic tank into nearby nallah amounts to Rs. 1,48,700/- (One Lakh Forty Eight Thousand Seven Hundred Only). The calculation of environmental compensation is attached.

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DK 24 Carat –

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DK 24 Carat is an under-construction multi-storey building project consisting of 9 blocks of total 250 proposed units (3 BHK flats). As informed by the builder, construction of one block is completed and occupied. Approx. 100 residents are currently residing in the block and estimated sewage generation is 12KLD.

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Sewage treatment plant of 400KLD capacity is constructed and found operational.

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No sewage water was found discharging into the nearby nallah.

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Action Taken – A notice on dated 06.04.2022 is issued to the builder (as per Annexure-3) to prevent the overflow of septic tank into the nearby nallah and also builder may connect the outfall of septic tank with the municipal sewer line under the AMRUT project.

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The method of calculating the environment compensation for the sewage generation in ratio of number of days are based on the principle as follows :

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“Environment Compensation for Discharge of Overflow of Septic Tank into nearby nallah at DK Cottage: The Environmental Compensation (EC) to be levied for the discharge of overflow of septic tank into nearby nallah as per the order dated 09/03/2022 of Hon‟ble NGT in case of OA 14/2021 is calculated as per the formula given in NGT OA 593/2017 order dated 28/08/2019:

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EC (Lacs Rs.) = 17.5 x (Total Sewage Generation - Installed Treatment Capacity) + 55.5 x (Total Sewage Generation - Operational Capacity) + 0.2 (Sewage GenerationOperational Capacity) X N + Marginal Cost of Environmental Externality x (Total Sewage GenerationOperational Capacity) X N

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Where; N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority. Quantity of Sewage is in MLD”.

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As per above methodology, the information recorded during inspection and based on following parameters environmental compensation is assessed:

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S. no	Components of EC	Estimated value	Remark
1	Water demand per day (MLD) (approx.)	0.159	Calculated for present occupancy of 212 units. Assumptions as per NBC : No. of persons per family = 5 Minimum domestic water supply = 150lpcd Est. Water Demand = 159KLD
2	Total Sewage Generation per day (MLD) (approx.)	0.127	Assumptions as per CPHEEO manual: Sewage generation = 0.8 x Water demand Est. Sewage Generation = 127KLD
3	Installed Treatment Capacity (MLD)	0.127	The overflow from septic tank was measured with the help of a bucket of size 10litres. The average
4	Operational Capacity of STP (MLD)	0.108	overflow from the septic tank is estimated to a tune of 19 KLD.
5	Gap in treatment of Sewage (MLD)	0.019	Total Sewage generation – Installed treatment capacity of STP = 0 Total Sewage generation – Operational treatment capacityof STP = 0.019
6	N=No. of days of violation	91	From date of inspection of joint committee dated 06/01/2022 till date of inspection by officials of MPPCB as per order of Hon‟ble NGT i.e. 06/04/2022 on which

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			violation was found continued. Total no. of days = 91 days
7	Marginal cost of Environmental Externality (Lacs rs. per day)	0.05	As per the guidelines of CPCB & NGT order in case of OA 593/2017 dated 28/08/2019 the Marginal Cost of Environmental Externality is taken as minimum 0.05 and maximum 0.1 for sewage up to 200 MLD.
	Environmental Compensation	Rs. 1,48,700/-	EC= 17.5(0.127-0.127)* + 55.5(0.127- 0.108) + 0.2(0.127- 0.108)91 + 0.05(0.127-0.108)91* EC = 1.487(in Lacs Rs.)

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In the meantime, the Regional Officer, State Pollution Control Board, Bhopal has issued show cause notice to the Project Proponent for removal of the encroachments and prevent the over flow of septic tank in to the nallah. The respondent no. 3 had submitted that notices were issued to the concerned person/project proponent and encroachers and as removed the wall from the encroached land.

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In compliance of the order dated 11.04.2022 the members of the committee visited the site again and submitted the violations as follows :

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“1. The overflow of septic tank is observed discharging into the nallah.

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As per the information provided by the builder, the overflow is proposed to connect to the municipal sewer line laid under the AMRUT project.

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During the inspection dated 26/04/2022, the construction work of laying of pipeline from DK Cottage colony to sewerage system laid down under AMRUT project was observed and it was informed that this pipeline will connect the inlet of septic tank with the sewerage system of Nagar Nigam Bhopal.

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During the inspection dated 23/05/2022, the above work of laying of pipeline was found stopped.

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The Learned Counsel for the applicant has filed the response to the Joint

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Committee report with the facts that there is no proper availability of portable water for want of borewell and there are violations of terms with regard to the construction activities and are in violation and

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contravention and TNCP map. The status report on the basis of the

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visit of the Joint Committee on 02.08.2022 was filed before the Tribunal as follows :

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Status of D.K. Cottage –

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The overflow of septic tank is observed discharging into the nallah.

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As per the information provided by the builder, the overflow is proposed to connect to the municipal sewer line laid under the AMRUT project.

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During the inspection the sewer line connection to municipal sewer line is not found completed. It is observed that the laying work of sewer line is stopped.

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Builder informed that the laying work of sewer pipeline from DK cottage colony to sewerage system AMRUT Project was started by Nagar Nigam but construction work of lying of sewer pipeline has been stopped by the applicant

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Status of D.K. 24 Carat –

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DK 24 Carat is an under-construction project with 9 blocks of total 250 (3BHK) proposed units. As per the information provided by the builder Out of 9 blocks, three blocks are completed and 35 flats were occupied.

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Sewage Treatment Plant of 400 KLD capacity is installed in the northwest corner of the D.K. 24 carat.

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The STP is based on FAB system with Vortex technology.

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During the inspection, STP was found operational. Presently based on the occupancy only approx 14 percent amount of sewage is reaching to the STP.

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No discharge was observed outside the premises of D.k. 24 carat.

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Treated waste water is used for plantation and gardening within the premises.

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Learned Counsel for the State vide reply dated 25.08.2022 has submitted that Revenue Inspector has demarcated the subjective land and a revenue case for demarcation and removal of encroachment is pending before Tehsildar and necessary orders are awaited, which is to be passed by the concerned Tehsildar.

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Learned Counsel for the applicant has raised the question that there are still encroachments and the discharge of sewage is reported to be connected with the Amrut Yojna which is not inconsonance with the terms of TNCP rules and there are encroachments on the nallah, encroachments of the government land and 3 projects have been included in the one project for providing facility of sewage treatment. It is further argued that commercial shops have not been constructed and that there are violation of regulation with regard to the TNCP Map.

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The Learned Counsel for the respondent no. 7 has argued that the plans pertaining to colony development of D.K. Cottages on the allocated parcels of land were approved by the colony cell of Municipal Corporation Bhopal vide its development permission No. 444 dated 02.03.2007, permission No. 580 dated 17.05.2010 and permission No. 586 dated 29.09.2010. Additionally, vide permissions dated 02.03.2007, 17.05.2010 and 29.09.2010; an arrangement for the completion of the satisfactory development work of the „scheduled premises‟ as per the terms stipulated therein was executed between the Municipal Corporation Bhopal and the answering Respondent No. 7.

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The society namely D.K. Cottages has been handed over to its residents in the year 2019 and is complete in all respects. Under a Tri-Party Agreement dated 23.02.2015 executed between the Municipal Corporation Bhopal through its Commissioner, answering Respondent and D.K. Cottage Jan Kalyan Samiti (having Reg No. 01/01/01/29253/15 dated 18.02.2015), which was represented by its President on behalf of 136 members who were present at that time had acknowledged that the development work of the colony forming part and parcel of the premises known as D.K. Cottage-I, D.K. Cottage-II and D.K. Cottage-III has been satisfactorily completed by the answering

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Respondent and no activity vis-à-vis the development within the schedule premises is incomplete.

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Appositely, Clause No. 4 of the “Tri-Party” agreement further stipulated that the maintenance and cleanliness of the sewage line shall be the responsibility of the answering Respondent till the date of handover of the scheduled premises to D.K. Cottage Jan Kalyan Samiti and thereafter the D.K. Cottage Jan Kalyan Samiti shall be responsible for the maintenance of the sewage line up to the point of connection with the city sewer. Furthermore, Clause No. 10 of the “Tri-Party” agreement stipulated that D.K. Cottage Jan Kalyan Samiti shall abide by the general directions and guidelines passed by the Municipal Corporation Bhopal for the observation of environmental issues or issues related to the health of the citizens residing within the schedule premises and shall be duty bound to obey the same at their expenses.

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The answering Respondent vide their response dated 07.04.2022 informed the Chief City Planner concerning the issue of septic overflow in D.K. Cottages; moreover, the answering Respondent respectfully submitted that for ease in the disposal of sewage, the society can connect their septic tank overflow to the nearby Amrut Yojana; further, concerning the issue of encroachment in D.K. Cottages, answering Respondent stated that they have not encroached upon any land of the corporation or any government agency. Similarly, for D.K. 24 Carat the answering Respondent informed that the society is under development; hence, the sewage treatment plant has recently been completed and there is no discharge in open nallah. On the issue of encroachment, the Chief City Planner was informed that the boundary wall of the society was shifted marginally because of the latest survey and there is no encroachment on any government land. The picture of the boundary wall was annexed alongwith the said reply. Lastly, answering Respondent

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informed the Chief City Planner that the Applicant intends to extract monetary benefits in the guise of instituting the instant O.A.

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Subsequently, Chief City Planner, Municipal Corporation Bhopal vide letter-dated 07.04.2022 bearing Sr. 8061/2022 requested Tehsildar, Tehsil Kolar to inform him regarding the removal of encroachment by the answering Respondent given their reply-dated 07.04.2022

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That Chief City Planner, Municipal Corporation Bhopal vide letter bearing No. 57/2022 dated 12.04.2022 informed the counsel for Respondent No. 3 herein that vide 132 9 letter No. 8061/2022 dated 07.04.2022 request was made to Tehsildar, Tehsil Kolar to acquaint him regarding the removal of encroachment by the answering Respondent given their reply-dated 07.04.2022.

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A complaint-dated 13.04.2022 was filed on behalf of the answering Respondent by its Manager before the In-Charge of Shahpura Police Station, Bhopal against the Applicant. The said complaint records that Applicant herein without prior permission had entered the premises of D.K. 24 Carat with ulterior motives. The Applicant had trespassed the site of D.K. 24 Carat; hence, a complaint was filed apprehending any unlawful conduct at the behest of the Applicant and also to ensure the well-being of their staff and its stakeholders. It is apt to state that this Tribunal has taken due cognizance of the instant Application filed by the Applicant; moreover, this Tribunal has been passing appropriate orders to gather credible information from the concerned authorities. Despite the same, the Applicant herein has chosen to assume the charge of the officials of the government agencies for reasons best known to him.

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17 Vide letter dated 19.04.2022 bearing No. 217/22 the Deputy Commissioner (Encroachment) Municipal Corporation Bhopal acquainted Supervising Engineer (Sewage), Municipal Corporation Bhopal that after inspection it was found that the boundary wall had already been

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removed by the answering Respondent. Vide letter-dated 21.04.2022 bearing No. 465/2022 Chief City Planner, Municipal Corporation Bhopal in furtherance to his earlier letter-dated 07.04.2022 bearing No. 8061/2022 further requested Tehsildar, Tehsil Bhopal to inform him regarding the removal of encroachment by the answering Respondent as it would enable them to apprise this Hon‟ble Tribunal apropos the same. In response to the letter-dated 07.04.2022 bearing Sr. 8061/2022 of Chief City Planner, Municipal Corporation Bhopal; the Tehsildar, Tehsil Bhopal vide letter bearing No. 498/Teh/Kolar/2022 dated 25.04.2022 informed that report concerning the inspection of the place was sought by the concerned Revenue Inspector. The Revenue Inspector reported that they were present to inspect encroachment if any on 133 10 the said parcel of land in view of the marked demarcations dated 24.11.2021; however, they were unable to locate the markings. Then, on 22.04.2022 demarcation was performed again and a report alongwith the panchnama was received from the Revenue Inspector that was annexed alongwith the response-dated 25.04.2022. It is apt to bring to the kind notice of this Hon‟ble Tribunal that the said Panchnama dated 22.04.2022 of the Revenue Inspector records that the boundary wall of D.K. 24 Carat, which stood on 0.002 Hectare land of nallah was removed by answering Respondent and a new boundary wall was erected. However, it was reported that as per the demarcation reports dated 24.11.2021 & 20.12.2021 the final portion of the nallah at Khasra No. 51 admeasuring 0.036 Hectare was found inside the boundary of D.K. 24 Carat society, which is a vacant parcel of land. The Revenue Inspector further records in his report that one of the partners of answering Respondent gave the reasoning behind the final portion of nallah being inside the boundary wall of D.K. 24 Carat. Revenue Inspector was informed that the answering Respondent has channelised and aligned the nallah with the main nallah on the parcel of land belonging to D.K. 24 Carat society and

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permission concerning the said exercise was obtained a decade ago from the then S.D.M

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The compliance report dated 27.04.2022 filed by Respondent No. 3 in view of the order-dated 11.04.2022 before this Hon‟ble Tribunal establishes without an iota of doubt that the answering Respondent themselves had removed the boundary wall to avoid further complications and uncertainties in compliance with the directions of the concerned government authorities.

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That on 05.05.2022 D.K. Cottage Jan Kalyan Samiti through its President & Secretary sent a letter to one of the Partner of answering Respondent about the issue of getting the debris of construction work removed from the vacant parcel of land situated within the premises of D.K. Cottages. The answering Respondent vide its reply-dated 10.05.2022 to the aforesaid letter unambiguously stated that no construction work of any sort was being carried out by the answering Respondent; moreover, the addressee was informed that the residents of the society including the cleaners and gardeners of the society were dumping waste on the said vacant parcel of land. Answering Respondent requested that the Samiti should look into the same.

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That vide letter bearing No. DKC/22-23/10 dated 06.06.2022 the answering Respondent apprised the concerned official of M.P. Pollution Control Board that the suggestions propounded by them before this Hon‟ble Tribunal are either being adhered to or have already been adhered to. However, the answering Respondent further apprised the concerned official that suggestions for linking the sewerage of D.K. Cottages with Amrut Yojana of Municipal Corporation Bhopal were given by the Pollution Control Board and in furtherance to the same answering Respondent had made an appropriate application on 20.04.2022 before the concerned department of the Municipal Corporation Bhopal and the required work concerning the same was commenced as well; however,

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Applicant herein intimidated the workers inducted for the said work and ultimately the work had to be stopped. Additionally, concerning the issue of alleged encroachment on government land/nallah pertaining to D.K. Cottages was addressed; the concerned official was further informed that there is no encroachment on the said parcel of land. Moreover, Applicant had instituted a formal complaint before the Sub-Divisional Officer & Tehsildar, Tehsil Kolar dated 14.02.2021 vide Case No. 0008/A-68/2021 which is still under consideration. The concerned official was also informed that no encroachment of any sort ever existed on the nallah where D.K. 24 Carat is located; conversely, when the land for the said project was purchased almost a decade ago then the practice of measuring the dimensions for demarcation of any land for revenue records was done manually. Aptly, at present, the said exercise was being carried out by means of modern technology and anomaly if any emerged as a result of the same. The demarcation for the parcel of land where D.K. Carat is located was also found to be dissimilar when the measurement exercise was carried out by different Revenue Officers and even the same is under consideration before the aforesaid competent authority. However, to quickly resolve the said issue, the boundary wall of the society was shifted marginally as per the latest survey and there was no encroachment on any government land as alleged by the Applicant. The relevant documents concerning the said issue were also annexed alongwith the said response.

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The answering Respondent vide their reply-dated 02.08.2022 addressed to Tehsildar, Tehsil Kolar rebutted the assertions of the Applicant in his complaint. The answering Respondent informed Tehsildar, Tehsil Kolar, that they have never encroached upon the nallah as stated in the complaint of the Applicant. Tehsildar, Tehsil Kolar was further apprised that answering Respondent has channelised and aligned the nallah with the main nallah on the parcel of land belonging to D.K. 24 Carat society and permission concerning the said exercise was obtained a decade ago

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from the then S.D.M., copy of the said permission was also annexed alongwith the said reply. Further, answering Respondent further requested that a thorough inspection be carried out by the officials of the Revenue Department so that the correct facts would eventually surface that the allegations levelled against answering Respondent concerning kiosks, gates and wire & fencing were essentially done by the Applicant. Conversely, it was stated that Applicant had demanded that two shops be constructed by the answering Respondent in D.K. Cottages society to which the answering Respondent had categorically denied his unjustified demands. The Tehsildar, Tehsil Kolar was further informed about the modus operandi of the Applicant herein i.e., in the garb of instituting false and frivolous cases he intends to reap monetary benefits. Thus, given the persistent contumacious conduct of the Applicant and being left with no other alternative or efficacious remedy answering Respondent approached a competent Forum for redressal of his grievances; Civil/Criminal cases were filed against the Applicant, which is under consideration before the Hon‟ble Courts of law.

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In addition to above facts, the followings has also been narrated by the project proponent :

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i) Applicant has lodged a First Information Report (FIR) against the partners of the answering respondent

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(ii) applicant has made complaint of more than 13 letters on behalf of the D.K. Cotage Jan Kalyan Samiti

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(iii) The applicant prompted the prospective home buyers not to by houses at DK Cottage

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(iv) more than 15% of the residents did not pay the charges of maintenance

¶136

(v) the Applicant approached the Civil Court for redressal of Civil grievance

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(vi) There was written agreement on 11.10.2020 whereby an amount of Rs.1,87,600/- was paid by the answering respondent to the applicant

¶138

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(vii) The applicant approached the answering respondent for purchase and sale or demand of possession of 2 shops for wrongful gain

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(viii) there are cases of encroachment and scuffle with one Mr Vikram Siyote

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(ix) there was a dispute of construction of cricket ground illegally to encroach the land

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(x) there are repeated complaints before the SDM, Kolar / concerned for redressal of grievances

¶143

(xi) there are repeated complaint before Superintendant of Police

¶144

(xii) refund of an amount of approximately 11 lakhs on 18.06.2021.

¶145

The above issues are not in any way connected with the environment and

¶146

not concerned with this Tribunal, thus there is no need to discuss.

¶147

Next issue raised by the applicant with reference to the Joint committee report are as follows :

¶148

a. That there are two functional borewells at D.K. Cottages and one amongst them has been sold to a resident of the society alongwith the dwelling at a higher rate for the said owner to utilize the same for his personal occupation.

¶149

b. it has been stated that there is a total of three colonies in the said society i.e., D.K. Cottages. The sewage Treatment Plant is under capacity.

¶150

c. That there is no provision for Sewage Treatment Plant, Rain Water Harvesting and Solid Waste Management.

¶151

d. That the answering Respondent has encroached upon the government land near the nallah for constructing shops.

¶152

In response to the above issues, it is submitted by the respondent that it is a matter of fact that there are two borewells situated within the premises of D.K. Cottages. It is to be noted that proper inspection was carried out by the water surveyor at the behest of the answering Respondent to ensure that plenty of water is available beneath the surface; resultantly, two borewells were installed within the premises of D.K. Cottages. It is further pertinent to state that after the survey was

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carried out the second borewell was installed within D.K. Cottages III; however, the positioning of the said borewell came inside the parking area of House No. 15, D.K. Cottages III. Therefore, at the time of selling the aforesaid dwelling the purchaser was categorically informed that as and when the need arises for the usage of water from the borewell, the purchaser would have no right to object. The said arrangement was duly recorded at Clause No. 15 of the Agreement between the answering Respondent and the owner of House No. 15 D.K. Cottages III in order to ensure and avoid any uncertainty about the extraction of water from the said borewell. The Applicant herein had raised this issue by filing a complaint dated 20.02.2021 against the answering Respondent before the Superintendent of Police, Misrod Area, Bhopal; pertinently, the answering Respondent had filed an appropriate reply-dated 05.06.2021 refuting the claims of the Applicant by reiterating the aforesaid. Thereafter, the said complaint was rejected by the Superintendent of Police, Misrod Area, Bhopal.

¶155

The answering Respondent vide their response dated 07.04.2022 had informed the Chief City Planner concerning the issue of septic overflow in D.K. Cottages. D.K. Cottages was constructed after receipt of all the approvals during the year 2006-07; moreover, the answering Respondent respectfully submitted that for ease in the disposal of sewage, the society can connect their septic tank overflow to the nearby Amrut Yojana as per the recommendations of the committee and the needful concerning the same was being done by the answering Respondent. The sewage treatment plant is not under capacity as alleged. Similarly, for D.K. 24 Carat the answering Respondent informed that the society is under development; hence, the sewage treatment plant has recently been completed and there is no discharge in open nallah. The solid waste management unit was not required within the society as waste was being collected by the concerned workers of the Municipal Corporation Bhopal. The issues of encroachment qua D.K. Cottages as alleged by the

¶156

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Applicant have already been addressed by the report submitted by the Joint Committee that was formed in pursuance of the orders of this Hon‟ble Tribunal. There was no encroachment of any sort for erecting shops as alleged by the Applicant. The Applicant is trying to establish otherwise to mislead this Hon‟ble Tribunal.

¶158

26 It is further argued that in cases of the instant nature concerning environmental governance, Courts are duty bound to assess the case on its merits based on the materials present before it. Matters concerning environmental governance concern not just the living, but generations to come. The protection of the environment is an essential facet of human development that ensures sustainable development for today and tomorrow as this also will go to show that if any action is done to cause pollution or contamination of water or air and land and if it has got any inter-relationship between themselves and the human beings and other living creatures, plant, micro-organism and property then Environmental Court will have jurisdiction.

¶159

So, every human right need not be an environmental right, attracting jurisdiction of this Tribunal. The power and jurisdiction of the NGT under sections 15(1)(b) and (c) are not restitutionary, in the sense of restoring the environment to the position, it was before the practice was impugned, or before the incident occurred. The NGT's jurisdiction in one sense is a remedial one, based on a reflexive exercise of its powers. In another sense, based on the nature of the abusive practice, its powers can also be preventive.

¶160

The directions of the NGT, though placed in the context of its adjudicatory role, have a wider ramification in the sense that its rulings constitute the appropriate norm which is to be followed by all those engaging in similar activities. Therefore, its orders, contextually in the course of adjudication, also establish and direct behaviour appropriate for future guidance. In these circumstances, given the panoply of the

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NGT's powers under the NGT Act, which include considering regulatory directions issued by expert regulatory bodies under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Biodiversity Act, 2002 it has to be held that general directions for future guidance, to avoid or prevent injury to the environment for appropriate assimilation in relevant rules, can be given by the NGT, applying the precautionary principle and sustainable development and protection of the environment and inter-generational equity as contemplated under Section 20 of the National Green Tribunal Act.

¶163

It is most graciously submitted that if a Court of law comes to the finding that the case before it is lacking bonafide, it must issue directions that it thinks appropriate in such cases. To the utter shock and dismay of the answering Respondent, the modus operandi of the Applicant herein smacks of malafide. The Applicant herein has himself stated at Para No. 10 & 11 of the instant Application that he has filed multiple complaints before several authorities for getting his grievance redressed; however, he had not received any response from such authorities. A meticulous study of the masquerading chain of events since 20.11.2013 till date would establish without an iota of doubt that Applicant herein is least bothered apropos the safety and preservation of the environment; moreover, he is a cantankerous litigant who has devised these arm-twisting tactics merely for financial gains.

¶164

The Applicant has filed several complaints before various authorities that in turn amount to Forum shopping, which has been termed as a disreputable practice by the Hon‟ble Apex Court and has no sanction and paramountcy in law. Predominantly, the Indian Judiciary has time and again reiterated that forum shopping takes several hues and shades but the concept of 'forum shopping' has not been rendered an exclusive definition in any Indian statute. Forum shopping as per “MerriamWebster” dictionary is:

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“ The practice of choosing the court in which to bring an action from among those courts that could properly exercise jurisdiction based on determination of which court is likely to provide the most favourable outcome.”

¶167

The Indian judiciary's observation and obiter dicta have aided in streamlining the concept of forum shopping in the Indian legal system. The Hon‟ble Supreme Court of India in Union of India and Ors. Vs. Cipla Ltd. and Anr. reported in (2017) 5 SCC 262 has condemned the practice of forum shopping by litigants and termed it as an abuse of law and also deciphered different categories of forum shopping. The relevant paragraphs are extracted below for ready reference: -

¶168

“....148. A classic example of forum shopping is when litigant approaches one Court for relief but does not get the desired relief and then approaches another Court for the same relief. This occurred in Rajiv Bhatia v. Govt. of NCT of Delhiand Ors. The Respondent-mother of a young child had filed a petition for a writof habeas corpus in the Rajasthan High Court and apparently did not get therequired relief from that Court. She then filed a petition in the Delhi High Courtalso for a writ of habeas corpus and obtained the necessary relief. Notwithstanding this, this Court did not interfere with the order passed by the Delhi High Court for the reason that this Court ascertained the views of the child and found that she did not want to even talk to her adoptive parents and therefore the custody of the child granted by the Delhi High Court to the Respondent mother was not interfered with. The decision of this Court is on its own facts, even though it is a classic case of forum shopping.

¶169

149. In Arathi Bandi v. Bandi Jagadrakshaka Rao and Ors. this Court noted that jurisdiction in a Court is not attracted by the operation or creation of fortuitous circumstances. In that case, circumstances were created by one of the parties to the dispute to confer jurisdiction on a particular High Court. This was frowned upon by this Court by observing that to allow the assumption of jurisdiction in created circumstances would only result in encouraging forum shopping.

¶170

150. Another case of creating circumstances for the purposes of forum shopping was World Tanker Carrier Corporation v. SNP Shipping Services Pvt. Ltd. and Ors. wherein it was observed that the Respondent/Plaintiff had made a deliberate attempt to bring the cause of action namely a collision between two vessels on the high seas within the jurisdiction of the Bombay High Court. Bringing one of the vessels to Bombay in order to confer jurisdiction on the Bombay High Court had the character of forum shopping rather than anything else.

¶171

151. Another form of forum shopping is taking advantage of a view held by a particular High Court in contrast to a different view held by another High Court. In Ambica Industries v. Commissioner of Central Excise the Assessee was from Lucknow. It challenged an order passed by the Customs, Excise and Service Tax Appellate Tribunal (the CESTAT) located in Delhi before the Delhi High Court. The

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CESTAT had jurisdiction over the States of Uttar Pradesh, NCT of Delhi and Maharashtra. The Delhi High Court did not entertain the proceedings initiated by the Assessee for want of territorial jurisdiction. Dismissing the Assessee's appeal this Court gave the example of an Assessee affected by an assessment order in Bombay invoking the jurisdiction of the Delhi High Court to take advantage of the law laid down by the Delhi High Court or an Assessee affected by an order of assessment made at Bombay invoking the jurisdiction of them Allahabad High Court to take advantage of the law laid down by it and consequently evade the law laid down by the Bombay High Court. It was said that this could not be allowed and circumstances such as this would lead to some sort of judicial anarchy.

¶174

155. The decisions referred to clearly lay down the principle that the court is required to adopt a functional test vis-à-vis the litigation and the litigant. Whathas to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not...”

¶175

The Hon‟ble Supreme Court of India in Krishna Lal Chawla and Ors. v. State of U.P. and Anr. reported in (2021) 5 SCC 435 observed that multiple complaints by the same party against the same Accused in respect of the same incident are impermissible. It held that permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the Accused being entangled in numerous criminal proceedings. As such he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case.

¶176

The Hon‟ble Apex Court in K. Jayaram and Ors. v. Bangalore Development Authority and Ors. reported in (2021) SCC Online SC 1194 has held as under: -

¶177

“16. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations was or is pending, they have to mandatorily state so in their pleadings in order to resolvethe dispute between the parties in accordance with law.”

¶178

¶179

The respondents has relied on the following citations :

¶180

i. Union of India and Ors. Vs. Cipla Ltd. and Anr. reported in (2017) 5 SCC 262,

¶181

ii. Krishna Lal Chawla and Ors. v. State of U.P. and Anr. reported in (2021) 5 SCC 435

¶182

iii. K. Jayaram and Ors. v. Bangalore Development Authority and Ors. reported in (2021) SCC Online SC 1194.

¶183

[

¶184

The copy of the order of Judicial Magistrate 1^st Class Bhopal passed in the case of RCD 4756/2022 dated 29.04.2022, copy of the order dated 29.10.2021 passed by Civil Judge Class-II, (Saptam) Bhopal in Civil Case No. RCS 414A/2021, an application moved to Tehsildar Kolar, order of Sub Division Officer Bhopal, copy of the complaint addressed to Superintendent of Police Bhopal, complaint addressed to Assistant Engineer, Electricity Department are attached with the records, which shows the continuous litigation at every forum between the parties with regard to the matter. Since the Civil and criminal matters are pending before the Competent court, thus we are not inclined to discuss it or to pass any order with regard to controversy as raised in the different complaint applications or matters pending before the court of competent jurisdiction , in civil or criminal side.

¶185

This Tribunal is concerned with the environmental issues and the Learned Counsel for the State Shri Sachin K. Verma has submitted during the course of argument that encroachment has been partially removed and the rest of matters which have been raised by the Learned Counsel for the applicant are pending before the Revenue Court, Tehsildar and the necessary orders be passed according to law and action be taken finally and he further assured that action must be taken within a week in accordance with the procedure established by law. So far as discharge of untreated water is concerned, the latest report submitted by the Joint Committee reveals that excavation and laying of sewer line upto colony road premises is completed, the construction work of chamber is in progress., sewage treatment plant of 400 KLD

¶186

¶187

capacity is installed in the North West corner of the DK 24 Carat, the STP is based on FAB system with vortex technology. It is further reported that STP was found operational and based on the occupancy approximately only 14% amount of sewage is reaching to the STP. There was no discharge, observed outside of the premises of DK 24 Carat . The treated waste water is used for plantation and gardening within premises. So far as the past violations are concerned State Pollution Control Board has issued notice with calculation of environmental compensation for realisation.

¶188

We direct the State Pollution Control Board to proceed for the realisation of EC for the past violation, if any accordance with law within a time frame.

¶189

32 We further direct the authorities to remove the encroachments accordingly to the decision taken by the Tehsildar in the revenue matter pending and further direct to decide expeditiously within a reasonable time, expeditiously. The matters pending with the Civil or Criminal court shall be governed by the decision taken by the competent court and this Tribunal is not inclined to pass any orders with the complaint or records which are related with the facts pending before the competent court. The STP was completed and it was found operational and there is no discharge observed outside the premises of DK 24 Carat and treated waste water is being used for plantation and gardening within premises.

¶190

Thus, in view of the above directions, no further action is required by this Tribunal. The Original Application stands disposed of accordingly.

¶191

Sheo Kumar Singh, JM

¶192

Dr. Arun Kumar Verma, EM

¶193

19^th October, 2022 O.A. No. 85/2021 (CZ) K

¶194

Dr Tarun Singh Chauhan v. State of Madhya Pradesh

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Dr Tarun Singh Chauhan v. State of Madhya Pradesh

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