Gramin Uthan Avam Jankalyan ... vs Govt. Of Nct Of Delhi And Ors.
2008 Latest Caselaw 268 Del

JUDGMENT

T.S. Thakur, J.

1. This is yet another writ petition filed by the petitioner samiti in public interest. The earlier two petitions, like the present one, also raised public health related issues for the benefit of those residing in village Kapashera in Delhi. W.P.(C)3637/1998 filed by the petitioner highlighted the unhygienic living conditions arising out of the neglect of the State Authorities giving rise to serious concerns as to public health environment in the village and apprehension of epidemics like Dengue, Malaria and other diseases spreading in the area. The petition, in particular, brought into focus the poor sanitary conditions prevailing in the area on account of the sewage from the villages in the vicinity getting discharged into a drain that commences close to Rajokhri crossing on the NH-8 and flows through the villages along the Oberoi Farms to finally empty itself into the Najafgarh drain west of village Bijwasan. Intervention of this Court was sought by the petitioner in an attempt to protect the rights guaranteed to the villagers under Article 21 of the Constitution. That petition was finally disposed of by this Court by an order dated 18th April, 2001 with a direction that industries located in HSIDC, Udyog Vihar, Phase-V, Gurgaon and elsewhere in Gurgaon shall be surveyed and action in accordance with law taken in case the same were found to be causing environmental or water pollution. The Court noted that HSIDC was setting up three parks in the area in Phase I, II and III which would improve the environment of the area. Permission was also granted to the petitioner society to revive the writ petition if the need so arose.

2. It was in pursuance to the above that the petitioner filed CM 5709/2001 for revival of the petition and for directions to the Delhi Jal Board and other authorities. The said application was then disposed of with several directions to the respondents including the Delhi Jal Board and the Irrigation and Flood Control Department of Delhi Government to maintain and clean the Bijwasan drain and to take action against those found polluting or indulging in any activity which contributes to the pollution of the said drain. A direction was also issued to the HSIDC to ensure that no polluted effluent is discharged into the drain apart from a direction to the HSIDC to ensure that the industries located in HSIDC complex do not cause any such pollution. The MCD was directed to clear the garbage dumped along nala flowing behind Kapashera and Oberai Farm and to ensure that the same is not made a place for dumping of garbage by the residents of the area. Directions to provide public receptacle, depots and places for temporary dumping of garbage were also issued to the MCD and a Committee consisting of an officer of the MCD, the police, the DPCC and citizens constituted to help keep a vigil and to ensure compliance of the directions of the Court.

3. Then came W.P.(C)3502/2000 and connected matters in which the petitioners drew the attention of the Court towards a total lack of concern by the respondents towards the issue of water management in the city of Delhi. The petitioners inter alia alleged that the distribution losses of drinking water on account of leakage of pipes, pilferage, overflowing of storage tank etc. could be minimized by taking proper corrective measures by the Government of Delhi and Delhi Jal Board. Directions for rescuing water bodies in the city of Delhi from unauthorized occupation and reviving the same were also prayed for apart from directions to the Government to frame schemes for recycling of water by water harvesting.

4. In the above petition this Court by order dated 1st March, 2006 constituted a nodal agency headed by the Chief Secretary, Government of NCT of Delhi to coordinate with the Departments concerned to deal with the problem pointed out by the petitioners including discharge of sewage and sullage in storm water drains which ultimately pollute river Yamuna. The court had emphasized the need for the authorities to act in coordination to achieve the target of cleaning the river and preventing sewage and sullage form flowing into the storm water drains. It had also noted the assurance given by the officers who were present in the Court that they would act promptly and that the Delhi Jal Board would appoint consultants by 31st March, 2006 for submitting a feasibility and study report with regard to the mechanism and method of treating the problem of sewage and sullage. The consultants were then to submit their report within four months whereupon the respondents had to indicate the time-frame within which the same would be implemented. The nodal agency was directed to constantly monitor the progress made by the concerned agencies and submit monthly reports to this Court.

5. The respondents pursuant to the directions issued by this Court, filed an affidavit inter alia stating that the nodal agency has held half a dozen meetings with Divisional Commissioner, MCD, DDA, ASI, IIT, DPCC, PWD and Delhi Jal Board officials and undertaken a comprehensive review of the progress made in connection with the plan for providing sewage facilities to all rural villages. It was further stated that the tender documents for all the 189 villages in Delhi had been received from the consultants and the proposals made in the same were being technically scrutinized. The affidavit went on to state that the villages had been divided into three categories. According to the respondents 74 villages were being connected with the existing peripheral sewage system, 66 villages to be covered through 37 waste stabilization ponds and 49 villages were to be covered through 19 Sewage Treatment Plants. The affidavit also expressed the hope that an appropriate sewage disposal mechanism for all 189 villages will be in place by the end of 2009.

6. This Court recorded its satisfaction with the steps taken by the Committee headed by the Chief Secretary making it unnecessary for the Court to monitor the implementation of the schemes any further. WP(C) 3502/2000 and the connected matters were in that view disposed of by this Court with the following observations:

8. In the light of the steps that have been taken by the respondents and the fact that the entire exercise and progress made in that direction is being monitored by the Committee headed by the Chief Secretary, nothing further in our opinion needs to be done in the present proceedings. These proceedings have in fact served the purpose for which the same were instituted inasmuch as the authorities concerned have been sensitized about their duties and an action plan drawn up for achieving the broad objectives that have been identified. What now remains to be done is execution of the proposals which is a matter that need not be necessarily monitored closely by this Court. This is so particularly when the Committee appointed by this Court is doing a satisfactory work in the matter and monitoring the progress of work on a regular basis. All that we need say is that the Committee appointed by this Court would continue to monitor the progress made in the execution of the plans and the schemes that have been formulated and ensured that the objections enumerated above which are laudable in themselves are achieved in good time. Minor issues such as whether a water body can be retrieved and if so to what extent are also matters that can in our opinion be left to the Committee to be suitably handled at its own level. We have no doubt that in case the petitioners have any concrete proposals or suggestions to make on the subject, they can do so before the Committee, in which event, the Committee would certainly take up the said proposals and suggestions also for discussions and take suitable decisions on the same at the appropriate level. Beyond that, it is in our opinion neither necessary nor proper for us to say anything at this stage. The writ petitions are with the above observations, disposed of leaving the parties to bear their own costs.

7. Pursuant to the aforementioned directions, the respondent appear to have initiated steps for the construction of a sewage treatment plant (STP for short) for treating sewage of 5 villages viz; Mehrauli, Rangpuri, Kapashera, Samhalka and Rajokari with a total population of about 2,50,000 people. The proposed STP has to come up over an area of 4 to 5 acres comprising khasras No. 23//4, 6/1, 6/2, 6/3, 7/1, 7/2, 15/1, 15/2, 15/3 and 24//11 in the revenue estate of village Kapashera. The residents of village Kapashera, it appears, were unhappy with the location of the proposed STP in which connection they filed representations to the Deputy Commissioner and their elected representatives including the Chief Minister of NCT of Delhi pointing out that the proposed STP was being located too close to the Lal Dora Habitation of village Kapashera. It was further alleged that the construction of STP would adversely affect the environment in the vicinity on account of breeding of mosquitoes, spread of viral diseases and foul smell. A request for re-locating the proposed STP was accordingly made by them. The petitioner has placed on record letters addressed by the Member of Legislative Assembly, Kapashera and by the Councilor MCD, Kapashera to the Lt. Governor and to the Chief Minister recommending a change in the location of the STP. They have also placed on record a communication dated 10.8.2007 sent from the office of the Lt. Governor, Delhi reassuring the residents of Kapashera through Shri Anil Yadav Councilor MCD, Kapashera that the proposed construction of STP, would in no way lead to any pollution or spread of diseases. The communication further states that almost all the STPs are located within the Lal Dora Habitats and that the same in no way pollute environment or spread disease.

8. In the present petition filed by the petitioner society, the petitioner prays for a writ of mandamus directing the respondents to relocate the sewage treatment plant far away from the village habitate of Kapashera and to formulate proper guidelines for location of STPs in residential areas so that living environment for those living in vicinity is not degraded by the obnoxious emissions from such STPs.

9. When this petition came up for admission before this Court on 5.9.2007, the Court noticed that the prayer for relocation of the STP proceeded on an assumption that the same would lead to pollution for the villagers in the neighborhood. There was, however, nothing on record to substantiate that allegation nor was there any averment in the petition that an STP can by itself lead to pollution. Mr. Jain, learned Counsel for the petitioner had, in that view, prayed for and was granted leave to amend the petition and to incorporate appropriate averments and also to place on record material in support of the plea that setting up of a sewage treatment plant involved hazards of pollution for the inhabitant in the vicinity. An amended writ petition has been filed pursuant to the said order in which the petitioner has primarily placed reliance upon the "Manual for Sewage and Sewerage Treatment" prepared by an expert Committee of the Government of India. The petitioner alleges that in sewage treatment plants, stabilization ponds are important design and engineering constituents. The petitioner further alleges that the proposed STP at Kapashera is likely to have a pond system. The petitioner has relied upon the manual to assert that STPs using pond system should be located as far away as possible and at least 200 metres from the residential area. Reliance is, in that regard, placed upon para 15.4.1 of the manual which reads as under:

15.4.1

Facultative pond sites should be located as far away as practicable (at least 200 M) from habitations or from any area likely to be built up within a reasonable future period. If practicable the pond should be located such that the directions of preventing wind is towards uninhabitated areas.

10. In the light of the above, the petition alleges that the decision to locate the proposed STP near village Kapashera is arbitrary and in violation of the right to clean environment implicit in the right to life guaranteed under article 21 of the constitution.

11. Appearing for the petitioner, Mr. Jain strenuously argued that STP using pond system of sewage treatment gives rise to public health considerations both in regard to design as also operation of the sewage treatment and disposal. He urged that considerations like effluent discharge standard, standards for control of Toxic and cumulative substances in the food chain, potential for nitrate and microbial pollution of ground waters deterioration of drinking water resources including wells and deterioration of bathing water quality arise in relation to the sewage treatment plants. It is, therefore, necessary for the agencies engaged in execution of such projects to address these concerns and take suitable preventive and remedial measures. He further argued that as per the manual on sewage and sewerage treatment, stabilization ponds system is considered best suited and most commonly used for sewage. Relying upon 15.4.1 of the manual extracted earlier, he argued that the facultative ponds system should be located as far away as practicable, at least 200 metres from the habitation or from any area likely to be built up within reasonable future period. In the present case, the proposed STP was according to Mr.Jain within a distance of less than 100 feet from the village habitat, thus violating the norms set by the Expert Committee in the manual mentioned above. He argued that in the very nature of the process adopted for treatment of sewage, the nuisance of breeding of mosquitoes' and emission of foul smell and a possible spread of diseases were unavoidable. The apprehension of the villagers could not, therefore, be said to be unfounded, argued the learned Counsel.

12. We have given our careful consideration to the submissions made at the bar and perused the record. Delhi, the capital of the largest democracy in the world, is also known to be the third most polluted city that the world knows. The need for improving the quality of life in the National Capital of India was emphasized by the Supreme Court in a long line of decisions delivered by their lordships in which a wide range of directions were issued to rid Delhi of the label of being one of the dirtiest and the most polluted city in the world. In M.C. Mehta v. Union of India the Supreme Court while dealing with the question of treatment of sewage in Delhi observed that the quality of life of those living in Delhi was adversely affected by the absence of proper sewage treatment and the free flow of untreated sewage almost everywhere in the city. The Court observed:

A very grim picture emerges regarding increase of pollution in the city of Delhi from the two affidavits filed by Shri DS Negi, Secretary (Environment), Govt. of Delhi. He has pointed out that the population of Delhi which was about 17 lakh in 1951 has gone up to more than 94 lakhs as per the 1991 census. In fact, more than 4 lakh people are being added to the population of Delhi every year out of which about 3 lakh are migrants. Delhi has been categorised as the fourth most polluted city in the world with respect to concentration of Suspended Particular Metal (SPM) in the ambient atmosphere as per World Health Organisation Report, 1989. From NEERI's annual report 1991 it is obvious that the major contributions, so far as air pollution is concerned, is of the vehicular traffic but the industries in the city are also contributing about 30% of the air pollution. So far as the discharge of effluent in Yamuna is concerned, the industries are the prime contributors apart from the MCD and NDMC which are also discharging sewage directly into the river Yamuna. We are dealing with the sewage problems in separate proceedings.

13. In an another order passed in the very same case on 21st April, 1995, the Court emphasized the need for construction of STPs and observed:

Treatment of sewage is of utmost importance for health and for supply of pure water to the citizens of Delhi. Any delay in this respect is health-hazard and cannot be tolerated.

14. In Jai Narain and Ors. v. Union of India and Ors. , the Supreme Court once again noticed the dismal situation arising out of the flow of untreated waste including sewage in the drains of Delhi including in river Yamuna. The Court observed:

11. Delhi - the capital of India - one of the world's great and historic cities has come to be listed as third/fourth most polluted and grubbiest city in the world. Apart from air-pollution, the waters of river Yamuna are wholly contaminated. It is a paradox that the Delhites - despite river Yamuna being the primary source of water supply - are discharging almost totality of untreated sewage into the river. There are eighteen drains including Najafgarh drain which carry industrial and domestic waste including sewage to river Yamuna. Thirty eight smaller drains fall into Najafgarh drain. The Najafgarh drain basin is the biggest polluter to river Yamuna. Eight of the drains including Najafgarh drain are untrapped, four fully trapped and remaining six are partially trapped. All these eighteen drains, by and large, carry untreated industrial and domestic wastes and fall into river Yamuna. The river Yamuna enters Delhi at Wazirabad in the North and leaves at South after traveling a distance of about twenty five kilometers. The water of river Yamuna till it enters Najafgarh is fit for drinking after treatment, but the confluence of Najafgarh drain and seventeen other drains make the water heavily polluted. The water quality of Yamuna, in Delhi stretch, is neither fit for drinking nor for bathing. The Biochemcial Oxygen Demand (BOD) level in the river has gone so high that no flora or fauna can survive. It is of utmost importance and urgency to complete the construction of the STP's in the city of Delhi. The project is of great public importance. It is indeed of National importance. We take judicial notice of the fact that there was utmost urgency to acquire the land in dispute and as such the emergency provisions of the Act were rightly invoked. We reject the first contention raised by the learned Counsel.

15. It was, in pursuance of the directions issued by their lordships in the above decision followed by other directions issued from time to time, that the process of setting up of sewage treatment plant was taken up on a war footing. It was only on account of the judicial intervention of the Apex Court as also this Court that the Government and various statutory authorities concerned with the process of setting up of sewage treatment plants got activated resulting in setting up of a number of such plants at different places in the city. Suffice it to say that the treatment of sewage by setting up of proper STPs is seen by the Apex Court as also by this Court as absolutely essential for reducing pollution resulting from free flow of untreated sewage and sludge in the drains and open Nallahs that flow through the capital. Not only that the Court has more than once emphasized the need for taking quick action even by invoking the emergency provisions contained in the Land Acquisition Act to ensure that the setting up of STPs is not delayed on account of the bureaucratic red tapism or delaying tactics adopted by those affected by the acquisition of the land.

16. It is only when we see the setting up of the proposed STP at Kapashera in the above backdrop that we can appreciate the true spirit in which the exercise undertaken by the respondents has been initiated. Superadded to the decisions delivered by the Supreme Court are the directions issued by this Court in W.P.(C)3637/1998 and 3502/2000 in which this Court had not only constituted a Nodal Agency headed by the Chief Secretary of NCT of Delhi to co-ordinate with the department concerned but also directed the said committee to constantly monitor the progress made by the concerned agencies. As noticed earlier, the Nodal Agency has held half a dozen meetings with MCD, DDA, ASI, ITI, DPCC, PWD and DJB officials to comprehensively review the progress made in the matter of providing sewage facilities to all rural villages. The Court took judicial notice of the fact that the Government had formulated an extensive plan for connecting the existing peripheral sewage system in 74 villages and providing stabilization ponds and sewage treatment plants in the same. The Government has set a target of providing sewage disposal mechanism in all the 189 Delhi villages by the end of 2009. The sewage treatment at village Kapashera is a part of the said larger plan intended to deal on a scientific basis with the problems of untreated sewage flowing in different drains and nalas in and around the villages thereby creating serious health hazards for the residents.

17. We must mention to the credit of Mr. Jain that he did not find fault with the objects sought to be achieved by the setting up of the STPs as indeed there could be no two opinions on the question whether sewage should or should not be treated. What was argued by Mr. Jain was that the location of the proposed STP at village Kapashera was not ideal and that proposed STP could be shifted to another location at some distance from the present location chosen by the respondents. We, however, regret our inability to accept that submission. We say so for two distinct reasons. Firstly, because the choice as to the location of proposed STP is a matter which must be left to the executive. Whether or not a given place is ideal for setting up a hospital, a school or even a sewage treatment plant and whether or not another location is more suitable are matters that fall in the realm of administrative discretion which the authorities are entitled to exercise while taking a decision. A writ Court would not in the ordinary course interfere with the exercise of any such discretion unless the decision is so outrageously irrational that no reasonable person could countenance the same. The petitioner has, in the instant case, failed to establish any such perversity in the choice made by the respondents as to the location of the proposed STP. Just because the proposed STP could as well be set up at another location or just because there are some peripheral advantages in shifting to another location may not in itself be sufficient for the Court to strike down the choice already made. This is particularly so because another village would be equally resistant to the shifting of the STP in its neighborhood as the residents of Kapashera are.

18. The second and an equally weighty reason that dissuades us from interfering with the question whether the STP should or should not come up at the present location is the fact that the said aspect has been examined by experts on the subject and the monitoring committee headed by the Chief Secretary. If the concerns expressed by the petitioner and the elected representatives of village Kapashera have been addressed and looked into by experts who are totally dispassionate and objective in their assessment, there is no reason why a Writ Court should disregard their opinion and direct shifting of the location. The experts have in their report to the Monitoring Committee headed by the Chief Secretary observed:

The existing conditions around the Lal Dora of village Kapashere is extremely unhygienic. The open drain gives a foul smell and is also used for dumping of garbage, deal poultry etc. As informed by the DJB at present untreated sewage is being discharged into this open drain. This results in odour, mosquitoes, nuisance in the vicinity and consequent adverse impact on public health. Hence, in effect if the STP is set up at Kapashere the air quality may in fact improve. This has been certified by the DJB that with the construction of STP as only treated effluent would be discharged into the drain; the adverse impact on public health would be mitigated to a large extent. The officers of DJB were also of the opinion that in case the site is changed then this will lead to further litigation and a consequent delay in the setting up of the STP.

An interaction with the villagers of Kapashere reveals that the acquisition of the land is being opposed essentially because of the low compensation offered by the government as compared to the prevailing market rates. It is the grievance of the villagers that the land belonging to the original habitants of the village is generally acquired while the land owned by the outsiders who are generally financially sound is not acquired. It has, therefore, been proposed by the villagers that the land at Kh. No. 157 of village Bijwasan, which is owned by a company but are not original inhabitant of the village be acquired for setting up of STP.

The following observations are made in context of the present proposal and the observations of Sh. Sajjan Kumar, Hon'ble M.P. in the meeting held under the chairmanship of Chief Secretary, Delhi.

1. There are no norms available with respect to the location of STPs. It would be difficult to list out norms in view of the heavy urbanization in Delhi.

2. The land at Kapashere village for setting up of a STP of about 5 MGD capacity for 5 villages was identified by the consultant and officers of the DJB in consultation with officials of DC (SW) after considering all technical and financial aspects relating to setting up of STP.

3. The land located in Kh. No. 157 of village Bijwasan as suggested by the Hon'ble M.P. was also found suitable by the officers of the DJB for setting up of STP. But there will be extra cost for providing trunk sewer for an additional length of 700 m, which would result in extra expenditure.

4. The inspection of the STP set up opposite Sector-4B Vasant Kunj, which is of 5.2 MGD, reveals that minimum odour is released from the plant.

5. The existing drain that flows along the phirni of Kapashera village is extremely dirty and gives unbearable smell and the situation would surely improve once the STP is set up.

6. The acquisition of land at Kapashera as per details already given has been allowed by Hon'ble LG, Delhi under Section 17(1) and 17(4) which has been notified on 23/8/07 and published in Newspapers on 01.09.2007. As per demand letter 80% cost of land amounting to Rs. 73,14,944/- has been deposited by Delhi Jal Board on 10.9.2007 with Deputy Secretary (L&B). Further notification of land for possession of land is under process.

7. The officers of the DJB were of the opinion that in case the site as proposed by the Hon'ble M.P. which is presently under the Bhumidari rights of M/s Akash Ford Inter Pvt. Ltd., Alipur Road, New Delhi (which it is informed is owned by the Oberoi group) is acquired then it may lead to protracted litigation and resultant delay in the project.

8. If the STP is set up at the new site then it may also involve acquisition of part of the land of the holdings of Dharamvir S/o Ram Mehar, Dilavar Singh S/o Late Makhan Lal, M/s Kooka Investment Finance Pvt. Ltd., M/s Akash Ford Inter Pvt. Ltd and Jagmal Singh S/o Sher Singh (Bhumidars and residents of village Kapashera). This process can also result in agitation, litigation etc.

9. The interaction with some residents of village Kapashera reveals that the grievance is more due to low compensation and less because of possible air pollution. This is further corroborated by the fact that at present the opposition is not from the villagers in general but the family whose land is being acquired.

10. More than half the land proposed to be acquired at Kapashera belongs to M/s Deepak Resorts and Hotels Pvt. Ltd., (notification under Section 4 and 17 of the Land Acquisition Act have already been published) who are not original inhabitants of the village. Moreover this land has been sold to these companies by the other bhumidars, part of whose holdings is also under acquisition.

It may also be mentioned that the land at Kh. No. 157 of village Bijwasan recorded in the name of a company measures around 10 acres of which a part would be required to be acquired in case the site of the proposed STP is shifted. If in due course of time the capacity of the STP would be required to be enhanced then this site could be the most appropriate in case the entire land is acquired.

To summarize it may be stated that the present site for which acquisition proceedings have already been initiated is appropriate for setting up for the STP. In view of the objections received with regard to the settling up of STP in the present site and in case the government decides to relocate the site then the land bearing Kh. No. 157 of Village Bijwasan is found to be fit for setting up the STP. However, there could be some financial implications as the site at Bijwasan is about 700 meters away from the identified site. The relocation of site could lead to protracted litigation and also delay in execution of Sewerage Treatment Plant.

The Chief Secretary in the meeting held on 10.9.2007 had desired that after the report is submitted by the committee then the site may be visited by the Pr. Secretary (Revenue) and the Chief Executive Officer, Delhi Jal Board.

 (MCT Pareva)                                                     (R.K. Jain)
Chief Engineer/I & FC                                        Chief Engineer/DJB
(Rajiv Kale)
Deputy Commissioner/SW 
 

19. The lack of necessary expertise with the Court and the very nature of the controversy involving determination of disputed questions of facts makes it difficult for this Court to strike a discordant note and authoritatively hold that the present location is either unsuitable or that an alternative location suggested by the petitioners would prove to be more appropriated. 
 

20. So also the argument that the proposed STP does not address public health considerations as required by the manual on Sewarage and Sewer treatment prepared by the expert committee of the Government of India does not appear to be correct. It is not the case of the petitioner society that the setting up of the STP would adversely affect anyone of the public health concerns that the manual enumerates. These concerns as per the manual are in the following areas:

e) Public Health

Public health considerations pervade through all aspects of design and operation of sewage treatment and disposal projects. Some aspects have already been referred to earlier. Public health concepts are built into various bye laws, regulations and codes of practice which must be observed, such as:

i) effluent discharge standards including permissible microbial and helminthic quality requirements.

ii) standards for control of toxic and accumulative substances in the food chain.

iii) potential for nitrate and microbial pollution of ground waters.

iv) deterioration of drinking water resources including wells

v) deterioration of bathing water quality

vi) control measures for health and safety of sewage plant operations and sewage farm workers who are exposed to or handle raw and/or treated sewage.

21. The report submitted by the consultants appointed for the project takes note of the above areas of concern and does not recommend any change in the location of the STP on the ground of any apprehension on any one of the above counts. That facultative ponds ought to be 200 meters away from the habitation as suggested in para 15.4.1 of the manual can at best be said to be recommendatory which aspect may be kept in view by the authorities while selecting the site. That would, however, be far from saying that the 200 ms. from the habitation is a statutory requirement which would render illegal the construction of the STP within 200 meters. There is, in any case, no material before us to suggest that STP in the present case would grossly violate the norm suggested in the manual. We, therefore, see no real and compelling reason for interference in public interest. This writ petition, accordingly, fails and is hereby dismissed but in the circumstances without any order as to costs.