Disposed

Ajay Singh Chaouhan S O Rajendra Singh v. State of Madhya Pradesh through District Collector

NGT23 Nov 2023Original Application No. 48/2023

Case brief

AI extract

What is this about?

The Tribunal disposed of an application alleging encroachment and construction in the flood zone of River Kshipra. Finding that disputes regarding remaining constructions are sub judice before the Civil Judge, the Tribunal held that further interference was inappropriate, noting authorities had already initiated demolition actions.

What did the court decide?

The Original Application was disposed of; parties are at liberty to approach the Civil Court for redressal regarding the sub judice matter.

Ajay Singh Chaouhan S O Rajendra Singh vs State of Madhya… — Environment and Pollution | NGT (2023)

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Item No. 2

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BEFORE THE NATIONAL GREEN TRIBUNAL CENTRAL ZONE BENCH, BHOPAL (Through Video Conferencing)

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Original Application No.48/2023(CZ)

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Ajay Singh Chaouahan Applicant(s)

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Vs.

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State of Madhya Pradesh & Ors. Respondent(s)

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Date of Hearing: 23.11.2023

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CORAM: HON’BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER HON'BLE DR. A SENTHIL VEL, EXPERT MEMBER

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For Applicant(s): Ms. Meenakshi Patidar, Adv.

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For Respondent(s) : Mr. Mehul Bhardwaj, Adv. Ms. Parul Bhadoria, Adv. Mr. Prashant Sthapak, Adv. D.M. Ujjain (M.P.)

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ORDER

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Issue raised in this application is encroachment and construction as alleged in the flood zone of river Kshipra in district Ujjain. This Original Application has been filed under Sections 14, 15 and 18 of National Green Tribunal Act, 2010 by applicant claiming to be a journalist by profession, also working for protection of rights of public with regard to preservation of environmental aspects.

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It is alleged that respondent no. 5 i.e., Shri Balaji Associates has raised constructions within the flood zone of River Kshipra in District Ujjain. A boundary wall has been constructed within the periphery of 200 meters from River Kshipra. Various complaints were made by applicant to various authorities but the grievance is that no action has been taken by the concerned authorities on the complaints made by applicant. Some of copy of complaints made to Chief Minister Helpline (Online Portal), Commissioner of Municipal Corporation Ujjain, Collector of District Ujjain

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have been filed as annexure A/3 and A/4 to the application. It is also said that as per draft of Ujjain Development Plan 2035 notified in the Gazette 2 of State of Madhya Pradesh, an area of 200 meters from both sides of River Kshipra is declared as green belt, hence, no construction is permissible in the said area but in violation, thereof, respondent no. 5 has raised construction in the prohibited area.

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The matter was taken up by this Tribunal on 06.07.2023 and it was observed as follows :

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“3. In our view, a substantial question relating to environment due to application of Statutory Enactments under Schedule to National Green Tribunal Act, 2010 has arisen but before taking any further action in the matter, we find it appropriate to obtain a factual report in respect of the allegations made by applicant, for which purpose, we constitute a joint Committee comprising Madhya Pradesh Pollution Control Board, Collector Ujjain, representative of Principal Secretary of Ministry of Water Resources/Jal Shakti, Government of Madhya Pradesh and Regional Officer, Integrated Regional Office, Ministry of Environment, Forest and Climate Change, Bhopal who shall visit the site, collect relevant information and submit a factual as well as action taken Report within six weeks by e-mail at [email protected] preferably in the form of searchable PDF/OCR support PDF and not in the form of Image PDF.

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Madhya Pradesh PCB will be nodal agency for co-ordination and compliance.”

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In compliance of the order joint committee visited the site and submitted the report as follows :

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“In compliance of the above direction, the joint committee visited area under question at Ujjain on 16th August, 2023 to assess the factual status of allegations made in the petition.

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The main contentions of the petition is "It is alleged that respondent no. 5 i.e., Shri Balaji Associates has raised constructions within the flood zone of River Kshipra in District Ujjain. A boundary wall has been constructed within the periphery of 200 meters from River Kshipra."

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The committee made the following observation during site visit on the above mentioned issues:-

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Shri Balaji Associates (Solitaire Hotel) has obtained NOC/Permission/Consent for Survey no. 3413/3, 3414/1/1 Min 2 86 3441/1 Min 2, Total Raba 7150 Square Meter Chintaman Road, Ujjain District Ujjain from following Govt. Agencies :

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(i)Town 86 Country Planning Ujjain Letter no. 2189 dated 1709-2014 annexed.

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(ii) Bhawan Nirman Anugya from Nagar Palik Nigam Ujjain , Zone no. 3 letter no. 67 dated 15-05-2015 85 Bhawan Nirman Karya Purnata Praman Patra letter no. 737 dated 09-10-2017 from Nagar Palik Nigam Ujjain , Zone no. 6.

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(iii) Consent to Establish is granted by MPPCB vide outward no. 15332 dated 03-05-2020 85 Consent to operate is granted by MPPCB vide outward no. 15692 dated 05-08-- 2020 (Valid up to 30-09-2025).

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2 Further, the Joint Committee observed that a Stone masonry retaining wall was constructed along the Ghat of Kshipra river.

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During the site inspection, the Joint Committee in consultation with the representative of Water Resource Department Ujjain demarcated the 200 meter distance from the base point (i.e. River Kshipra Ghat has been considered as the base point for such demarcation) as a no construction zone in accordance with the Ujjain Development Plan, 2035. Accordingly, following structures of the Solitaire Hotel were found to be within the 200 meter zone:

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(i) Temporary shed of size 1632 square meter.

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(ii) Temporary shed of size 730 square meter.

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(iii) Part of main building of Solitaire Hotel of 676 square

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meter.

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Perusal of the reply submitted by the nagar Palika Nigam Ujjain reveals that Brick Masonry Boundary Wall & Railing have been demolished completely & 20% of the stone masonry retaining wall of Solitaire Hotel Ujjain has also been demolished. However as per order passed by Hon’ble Ninth Civil Judge Senior Ujjain vide their letter no. 14671 dated 22.09.2023, the Nagar Palika Nigam Ujjain is free to demolished illegal construction except permitted construction part of Hotel. In compliance of the above order, the demolition of remaining illegal construction is under process.

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A preliminary objection has been filed with the fact that issue involved in this application is also the subject matter of Miscellaneous Judicial Case (MJC) No. 291/2023 in which Civil Judge, Senior Division Ujjain considered the matter and passed an interim order with Status Quo and directed the Municipal Corporation not to carry out any demolition at the disputed project and as such the matter is subjudice. It is further alleged that the answering respondent has obtained all the required permissions from the competent authority for the construction and operation of the project constructed by the name of the Hotel Solitaire and same were obtained much prior to the time when the width of river Kshipra were widened during the Kumb Mela . It is stated that during Kumb Mela the width of river Kshipra was widened. It is further submitted the NonApplicant No. 05 is a partnership firm by the name of Shri Balaji Associates with Shri Umesh Mahajan, Vijay Mittal and Shri Praveen Aura as its partners. The aforesaid firm has a great expertise in the field of constructions and the land in question belongs to the said firm and currently a hotel by the name of Hotel Solitaire is being run on the said land by the answering Non-Applicant at survey No. 3413/3.

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That the said land was purchased in different parts by the answering Non-Applicant in the name of the partners and/or their family members. The sale deeds in respect of the purchase of the entire land by the answering Non-Applicant comprising of survey no. 3387/1 area 0.293 Hectare, survey No. 3413/1/1 area 0.392 Hectare, Survey no. 3386 (new survey no. 3386/2) area 0.2540 Hectare, Survey no. 3413/1/ Meen-1 Area 0.627 Hectare are being filed and annexed and the land was diverted from agricultural to commercial by orders from competent authorities and permissions were also obtained at the respective time by the answering Non-Applicant from the Non-Applicant No. 1 (Nazool Permission), NonApplicant No. 02 (Town & Country Planning) and Non-Applicant No. 03

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(Municipal Corporation, Ujjain), Diversion Order from SDM (Revenue) Ujjain and Consent to establish and Consent to operate were also obtained from the Non-Applicant No. 04. Moreover, the construction of the hotel was also completed by the answering Non-Applicant No. 05 in the year 2015 itself. The copies of permissions/ consents from the Non-Applicant No. 1 (Nazool), Non-Applicant No. 02 (Town & Country Planning), Non-Applicant No. 03 (Municipal Corporation, Ujjain), Diversion Order from SDM (Revenue) Ujjain and Consent to establish and Consent to operate were also obtained from the Non-Applicant No. 04 are filed and annexed.

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In year 2016, the government authorities had decided to widen the river Kshipra in view of the Sinhasth ( Kumbh Mela ) and consequently, Ghats were also constructed by the said authorities and as such, the construction which was done by the answering Non-Applicant No. 05 under the prevailing norms and various permissions accorded to it, came into the periphery of 200 meters of the river Kshipra . As a result, the construction so done lawfully by the answering Non-Applicant No. 05 as per the prevailing laws and the prevailing landscape/area/survey numbers suddenly came under the radar of the new landscape/area/survey numbers prevailing in 2016 after the widening of the river and creation of Ghats and thereafter. As such, the answering Non-Applicant is being put to scrutiny for something which was done by it in complete obedience of the prevailing laws and norms.

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The documents with regard to the sale deed, permission from the Nuzul Department, permission from the Town and Country Planning, permission from the Municipal Corporation, diversion order passed by the Revenue Authorities, “Consent to Establish” order issued by the Competent Authority/Respondent No. 4, “Consent to Operate” in favour of the Project Proponent and the order of Civil Judge, Sr. Division with interim status quo order, has been filed with this reply. The layout of the Patwari Halka No.

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38 of District Ujjain for the year 2013-2014 and the map has also been filed supporting the contention of the Project Proponent.

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Learned Counsel for the applicant has filed the objection against the Joint Inspection Report with the facts that Municipal Corporation has demolished Brick Masonry boundary walls of railing but has not completely demolished the Hotel. The contention of the Project Proponent and the Municipal Corporation is that the matter is subjudice before the Civil Judge and the authorities are not authorised to proceed further in light of the order of the Civil Court.

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10 The report of the SDM, Ujjain filed on 08.11.2023 reveals that the action for demolition of unauthorised construction has been taken by the authorities concerned and rest of the matters is within the domain of Civil Court.

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The contention of the Learned Counsel for the Respondent No. 5 is that the constructions were raised during the period 2014 to 2017 which is beyond the scope of Section 14 and 15 of National Green Tribunal Act being beyond the limitation period of 5 years as provided in Section 14 and 15 of the National Green Tribunal Act.

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It is further submitted that the M.P. State Pollution Control Board has provided the Consent to Establish as well as the Consent to Operate to the answering Non- applicant No. 5 after following the due process of law as provided under the Act and the delay in applying for the same has already been suitably dealt with by the M.P. State Pollution Control Board at the prevailing time and only after satisfying itself as to the terms and conditions for grant of such consents, the Sate Pollution Control Board granted the same to the answering Non-Applicant No. 5.

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The answering Non-Applicant has got the entire property surveyed by a registered Chartered, engineer firm M/s. R. G. Pathak & Associates through Mr. Ravindra Kumar Pathak, who in turn has given his Technical Inspection Report supported with relevant documents and the same is based on the survey as well as on the Google images and the relevant timeline, mentioning all the relevant aspects which form a part of the present issue. The said report encompasses all the issues raised in the instant Petition and it also explicitly mentions the following conclusions of the report:-

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The hotel property was constructed in the year 2015-17. All due sanctions were taken from the competent authorities.

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The hotel property has been provided with very good sewage disposal arrangements up to municipal drain located along road side in the front of the property.

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The property has been provided with, good solid waste disposal arrangements for segregating solid waste & disposal of the same.

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The hotel property has been provided with roof water harvesting arrangement to recharge the available tube wells.

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The hotel building was constructed following all the sanction parameters. The _ hotel building was constructed well outside the 200 meters arc from the bank of the river Kshipra. On account of regular & rapid soil erosion of soil on the bank the bank was shifted closer to the building for about 15 meters. However, in the year 2016 a RCC aproned Ghat was constructed on then available bank. Thus, the hotel building presently located at a distance of 198.21 meters instead of 213.98 meters in the year 2014. The constructed Ghat & the Stone masonry retaining wall have stopped further soil erosion.

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The hotel property is neither polluting the river Kshipra, nor is it disturbing any ecological balance of the river and its surrounding.

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The property has been well provided with roof water harvesting system supporting the ground water table of the area.’

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In order to justify the stand that the hotel in question was constructed way back in the year 2014-15 and further the same was operation since the April, 2016.

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That the Banks of river Kshipra were widened much later after the construction of the hotel of the nonapplicant. The hotel of the answering non-applicant no. 5 was already operational since April 2016 which can easily be verified from the online bookings, the copies of which have already been filed along with the main reply.

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The latest status report and action taken report have been filed by the Collector Ujjain on the basis of report submitted by the Anuvibhagiya Adhikari, Ujjain dated 22.11.2023 with the fact that necessary actions with regard to demolition have been taken by the Municipal Corporation according to rules. For rest of the matter it is submitted that the matter is subjudice before the Civil Judge, Sr. Division. The Collector has further submitted that the authorisation under Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 is not applicable.

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In view of the above contention as raised by the Learned Counsel for the parties and on the basis of the records and report submitted by the parties, we are of the view that unauthorised construction within the purview of Municipal Corporation has been demolished according to rules. Rest of the matter are within the domain of Civil Judge, Ujjain in pending case. It would not be appropriate to interfere in the matter which is pending before the competent court and parties are at liberty to approach thereto raise their grievance for redressal of the matter.

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In view of the above facts the necessary actions have been initiated and taken by the authorities concerned. Rest of the matter shall be taken in accordance with the decision taken by the Civil Court.

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The Original Application No. 48 of 2023 (CZ) stands disposed of accordingly.

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Sheo Kumar Singh, JM

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Dr. A Senthil Vel, EM

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23^rd November, 2023 O.A. No. 48/2023 (CZ) K

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Ajay Singh Chaouhan S O Rajendra Singh v. State of Madhya Pradesh through District Collector

Case brief

What is this about?

What did the court decide?

Ajay Singh Chaouhan S O Rajendra Singh v. State of Madhya Pradesh through District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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