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2024 Supreme(Online)(NGT) 3501
NATIONAL GREEN TRIBUNAL NEW DELHI (PRINCIPAL BENCH)
Sudhir Agarwal, Judicial Member, Afroz Ahmad, Expert Member
Vipin Nayyar – Appellant
Versus
Union of India – Respondent
Original Application No. 305/2022
For the Respondents:Mr. Thakur Sumit, Advocate for MoEF & CC (through VC), Ms. Anjali Rajput, Advocate for State of Uttarakhand, Mr. Mukesh Verma and Ms. Vatsala Tripathi, Advocates for UKPCB, Mr. Rajesh Kumar, Advocate for Respondent No.8, Mr. Balendu Shekhar and Ms. Tanisha Samanta, Advocates for Survey of India with Mr. Arvind Kumar, Superintending Surveyor (through VC), Mr. Ruchir Mishra and Mr. Ramneek Mishra, Advocates for ASI (through VC)
NGT applications for demolition barred if constructions completed beyond 6-month/5-year limitation under Sections 14(3)/15(3); continuing existence not continuous cause.
Headnote:The application under Sections 14 and 18 of the National Green Tribunal Act, 2010 alleges illegal construction of a resort on forest land, flood plain zone, and prohibited area near River Ganga confluence, without requisite NOCs under AMASR Act, 1958, UFPZ Act, 2012, Water Act, 1974, and Air Act, 1981. Joint Committee report confirmed structures within flood plain and prohibited zones but outside reserved forest, with no pollution consents. Court found constructions completed in 1993-2004, beyond 6-month/5-year limitation periods under Sections 14(3) and 15(3) of NGT Act, 2010; continuing existence not a continuous cause of action. Issues framed on limitation for demolition relief and location in prohibited zones; satellite imagery inconclusive for old structures, countered by revenue records, panchayat approvals, and tehsildar report verifying pre-1995 possession. Ratio: Cause of action arises upon completion of construction; post-completion operation does not extend limitation. Application dismissed as time-barred; respondent directed not to use property commercially, with enforcement by District Magistrate and Pollution Control Board.
| Table of Content |
|---|
| 1. alleged illegal resort construction in flood plain, forest, prohibited zones without nocs. (Para 1 , 2 , 3 , 4 , 5) |
| 2. joint committee verifies structures in flood plain/prohibited zones, no consents. (Para 6 , 7 , 8 , 9) |
| 3. respondent claims old constructions; applicant disputes with imagery and notice. (Para 10 , 11 , 12 , 13 , 14) |
| 4. constructions time-barred beyond ngt limitation periods. (Para 15 , 16 , 17 , 18 , 19) |
| 5. no commercial use allowed; application dismissed subject to compliance. (Para 20 , 21 , 22 , 23) |
ORDER
1. The applicant Sh. Vipin Nayyar present in person.
2. Mr. Thakur Sumit, Advocate for MoEF & CC, Ms. Anjali Rajput, Advocate for State of Uttarakhand, Mr. Mukesh Verma and Ms. Vatsala Tripathi, Advocates for UKPCB, Mr. Rajesh Kumar, Advocate for respondent no.8, Mr. Balendu Shekhar and Ms. Tanisha Samanta, Advocates for Survey of India with Mr. Arvind Kumar, Superintending Surveyor and Mr. Ruchir Mishra and Mr. Ramneek Mishra, Advocates for ASI are present.
3. The Original Application under Sections 14 read with 18 of National Green Tribunal Act, 2010 (hereinafter referred to as ‘NGT ACT, 2010’) has been filed by applicant alleging that respondent 8-Surender Moga, son of Paltu Ram has raised construction in Moga Resort on a land situated on the confluence of holy River Ganga and River Rambha (an important tributary of River Ganga at Rishikesh). It is located on the right side of downstream of river Ganga and on the left side of downstream River Rambha in Veerbhadra area of Rishikesh. The said land is part of forest, popularly as ‘Meera Ben Kutiya’and ‘Kaksh Sankhya 1’.
4. It is also stated that applicant filed a Right to Information (hereinafter referred to as ‘RTI’) Application on 14.12.2021 to Assistance Superintending Archaeological Engineer, enquiring as to whether Moga Resort is situated in the Prohibited Zone of Archeological Excavation Site as declared under Section 20A and 20B of Ancient Monuments Archaeological Sites and Remains Act, 1958 (hereinafter referred to as ‘AMASR Act, 1958’) as amended from time to time. Reply given by Archeological Department said that Moga Resort is constructed at a distance of 48.50 kilometers from Archeological Excavation site and no permission/ No Objection Certificate (hereinafter referred to as ‘NOC’) was obtained before construction of Moga Resort.
5. Respondent 8 has also not constructed any sewage system and this fact has been verified by Uttarakhand Payjal Nigam in reply dated 24.12.2021 to the RTI Application dated 14.12.2021 of the applicant. Further, Moga Resort falls within Flood Plain Zone demarcated in the map of 1:25 years under Uttarakhand Flood Plain Zoning Act, 2012 (hereinafter referred to as ‘UFPZ Act, 2012’). Applicant, therefore, has prayed that construction of Moga Resort raised illegally in the Flood Plain Zone and forest land should be demolished and removed and respondent 8 should be directed to restore the area and also rejuvenate environmental damage by paying environmental compensation as determined by Tribunal.
6. Tribunal took cognizance of the matter on 06.05.2022 but in order to verify the facts and have a Factual Report, constituted a Joint Committee comprising State Environment Impact Assessment Authority, Uttarakhand (hereinafter referred to as ‘SEIAA, Uttarakhand’), Chief Engineer, Irrigation Division-I, Dehradun, Member Secretary, Uttarakhand Pollution Control Board, District Magistrate, Dehradun, a Principal Scientist from National Institute of Hydrology, Roorkee and Forest Research Institute, Dehradun.
7. The Committee was required to submit its Report within two months.
8. Notices were also issued to respondents to file their responses.
9. Joint Committee submitted its Report dated 24.08.2022, stating that in Moga Resort 16 rooms, 2 halls and 4 residential rooms are existing. For disposal of sewage, arrangement of septic tank/soakpit has been made. No Consent under Water (Prevention and Control of Pollution) Act, 1974 (h
