S.P. Wangdi, Judicial Member
1.This application was preferred alleging construction of Sewage Treatment Plant (STP) by the Pimpri-Chinchwad Municipal Corporation (PCMC) in the area between the river bank and Blue Flood Line of the Indrayani River which is a prohibited zone. It is inter alia alleged that because of such construction the integrity, riparian area of the Indrayani river system, the flood plains, sanitation of general public would be affected adversely and, therefore, deleterious to the environment.
2. When the matter came up before us for the first time on 22.05.2019, we deemed it necessary to call for a report from a joint Committee comprising of the PCMC, Pune, Maharashtra State Pollution Control Board (MPCB) and the Pune Irrigation Division, Government of Maharashtra. The MPCB, being the nodal agency appointed for the purpose submitted its report on 16.08.2009 by email and was taken on record on 17.09.2019. After consideration of the report, formal notices were issued upon the respondents who appeared as a consequence on 14.11.2019 on which day following order was passed:
" 1. The only question involved in the present case is with regard to the construction of STP within the blue line Zone of Indrayani River by the Pimpri Chinchwad Municipal Corporation (PCMC). Report called for from the joint Committee comprising of PCMC, Pune, the Maharashtra Pollution Control Board (MPCB) and the Pune Irrigation Division, Government of Maharashtra indicates that the Sewage Treatment Plant (STP) is being constructed in the prohibited Zone, i.e., blue line Zone of Indrayani river.
2. It is also stated that the existing location is not suitable for construction of STP apart from the fact that PCMC has not obtained Consent to Establish for the STP. We have also taken note of the status report of STP filed as Annexure I to the report by which reference has been made to technical circulars dated 16.11.2015 and 08.03.2018 of the Water Resource Development (WRD) resolution which substantiate that the STP construction is on a land bearing Gat No. 90 and falls in the blue line of the river and is a prohibited zone for permanent constructions.
3. Notification dated 18.09.2017 issued by the Government of Maharashtra, which has been filed by the Applicant in support of his contention also indicate that area between the river bank and blue line (Flood line towards the river bank) has been declared as prohibited zone for any construction except for parking, open vegetable market with otta type construction, garden, open space, cremation and burial ground, public toilet or like uses, provided the land is feasible for such development.
4. A conjoint reading of all the documents and the report filed by the Committee through the MPCB would categorically indicate that the STP has been constructed on a prohibited zone without obtaining Consent to Establish from the State PCB. Taking into consideration these facts, the application could have been disposed off with appropriate directions but, it has been submitted on behalf of the PCMC that by GR dated 03.05.2018 construction of STP is permissible within the blue line Zone. He also submits that a report has been filed on 12.11.2019 on behalf of the PCMC indicating such fact. However, we do not find such report in our records.
3. In their affidavit-in-reply, the PCMC took exceptions to the Committee's report referred to earlier, essentially asserting that construction of the STPs was permissible in the no construction zone of rivers under GR dated 03.05.2018 filed as Annexure R-7 to the affidavit.
4. During the course of hearing today, the Learned counsel for the PCMC submitted that GR dated 03.05.2018 (Annexure R-7) are the "guidelines for utilization of prohibited and controlled area and marking the flood line so as to prevent any construction within the flood line and avoid the flood calamity" (hereinafter referred to as 'the guidelines') issued by the Water Resources Department, Government of Maharashtra on 03.05.2018. Referring to Clause 7 of the guidelines, it was contended that the prohibitive zone can be utilized in the form of open land for certain purposes including public toilets and sewage disposal facility in such a way that there is no obstruction in the flow, the water carriage capacity of the river is not reduced and that there is no change in the intersection of the river. For convenience we may reproduce Clause 7 referred to above:
"7. The Prohibitive Zone can be utilized in the form of open land, for example gardens, play grounds, or light crops. Wherever the right to grow crops is established as a result of customary use, such places should be utilized for such purposes (as Watermelon/Sweet Melon/Melon plantations, public toilets and sewage disposal facility) in such a way that there is no obstruction in the river flow, the water carriage capacity of the river is not reduced and there is no change in the intersection of the river."
5. On the other hand, learned Counsel for the Appellant pointed out that as a consequence of the resolution passed by the General Body of PCMC on 27.06.2013, it was decided to demarcate the flood lines on the revised Development Plan of the PCMC for which purpose it was decided to include a new Rule No. 9.4 in the Development Control Rules for PCMC dated 17.12.1990 to provide for use/development in the flood lines. Notification was thus issued inter alia introducing such amendment to the Development Control Rules for PCMC vide Notification dated 18.09.2017. The Sanctioned New Rule 9.4 is reproduced as below:
"Sanctioned New Rule No. 9.4
The development in the area falling in the flood lines will be governed as follows:-
i) Area between the river bank and blue flood line (Flood line towards the river bank) shall be prohibited zone for any construction zone prohibits any construction except parking, open vegetable market with otta type construction, garden, open space, cremation and burial ground, public toilet or like uses, provided the land is feasible of such development.
Provided further that redevelopment of the existing authorized properties within river bank and blue flood line, may be permitted at a height of 0.45m above red flood line level subject to NOC from Irrigation Department.
ii) Area between blue flood line and red flood line shall be restrictive zone for the purpose of construction. The construction within this area be permitted at a height of 0.45m above the red flood line level.
iii) If the area between the river bank and blue flood line or red flood line forms the part of the entire plot in development zone i.e. residential, commercial, public-semi-public, industrial, then FSI of this part of land may be allowed to be utilized on remaining land.
iv) The blue and red flood line shown on the development plan shall stand modified as and when it is modified by the Irrigation Department for a stretch of water course. In such case it shall be necessary to issue order to that effect by the Municipal Commissioner."
6. A bare reading of clause 9.4(i) above most categorically prohibits any construction except parking, open vegetable market with otta type construction, garden, open space, cremation and burial ground, public toilet or like uses, provided the land is feasible of such development. Provided that redevelopment of the existing authorized properties within the river bank and Blue Flood Line, may be permitted at a height of 0.45 meter above Red Flood Line level subject to NOC from the Irrigation Department.
7. It is, therefore, quite apparent that from the conspectus of the various provisions referred to above, utilization of open land in the prohibitive zone even for the purposes mentioned in Clause 7 of the guidelines for various activities is permissible only if there is no obstruction caused in the river flow, the water carriage capacity of the river is not reduced and that there is no change in the intersection of the river. In the light of this position, the observations in the report of the Joint Committee comprising of the PCMC, Pune, MPCB and the Pune Irrigation Department, Government of Maharashtra assumes relevance and, therefore, is reproduced below:-
"(i) The location of STP is on land at 1/130, Chikhali, Tal. Haveli, Dist. Pune, which is affected by blue line.
(ii) The said location falls in Blue line of the river Indrayani and there is obstruction in the natural flow of river during rainy season.
(iii) The construction work of STP was found in progress. Excavation Work was almost completed and some construction was started.
2. Considering the above facts & observations made during the visit, MPCB and Irrigation Department are of view that the existing location is not suitable for construction of STP. The Pimpri Chinchwad Municipal Corporation has not obtain Consent to Establish for their STP at Chikhali, Tal. Haveli, Dist. Pune."
8. The report as would be evident from the record is prepared by a Committee constituted by the MPCB which is an independent statutory entity and a representative of the Irrigation Department which is the competent authority having the requisite expertise to deal with matters relating to river banks. Thus the contentions of the PCMC that it had its own opinion regarding the matter cannot be accepted and would naturally be overridden by the opinion of the experts. Moreover, the guidelines dated 03.05.2018 have obviously been issued by the Water Resources Department as an executive instruction which cannot override a statutory Notification or a sub-ordinate legislation like the Development Control Rules issued under Section 31(1) of Maharashtra Regional & Town Planning Act, 1996. Rule 9.4 having been issued under the said provision of law assumes statutory character and all circulars, guidelines or orders issued under the executive power of a State to the extent that are in conflict with the statutory Notifications would stand superseded. Clause 7 of the guidelines, therefore, stands superseded so far as it is in consistent or in conflict with the Notification dated 18.09.2017.
9. Having regard to the facts and circumstances set out above, we have no hesitation in holding that the questioned STP has been constructed within the prohibitive zone and, apart from the
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fact that the PCMC did not have the necessary Consent to Establish, the structure (STP in the present case) besides having been raised at a location which is not suitable for construction of STP, is also obstructing the natural flow of the river during the rainy season. 10. As a consequence, we direct the PCMC to immediately demolish the STP in question and take steps to construct one at some other suitable site in accordance with law. The entire exercise shall be carried out within a period of one month under the strict supervision of the MPCB and the Irrigation Department, Government of Maharashtra. 11. Since, during the construction of the STP severe damage was caused to the environment and ecology of the area, we direct the MPCB to assess the ecological damage by taking scientific support of experts and recover the same from the PCMC. 12. Report of compliance shall be filed within three months in the Registry through email at firstname.lastname@example.org. 13. In the result, the application is allowed. 14. The application thus stands disposed off along with the connected I.A. 15. No order as to costs.