Swatanter Kumar, Chairperson:— Maharani Bagh Co-operative House Building & Welfare Society Ltd. has filed this application with a prayer that the concerned agencies including Delhi Jal Board (for short, ‘DJB’) and South Delhi Municipal Corporation (for short, ‘SDMC’) be directed to reinstate and cover the portion of Maharani Bagh drain running through the Maharani Bagh colony and to that extent they have sought this clarification of the judgment of the Tribunal dated 13th January, 2014.
2. In the case of ‘Manoj Misra v. Union of India’, Original Application No. 300 of 2013, the Tribunal had passed a detailed judgment dated 13 January, 2014 which related to cleaning of River Yamuna under the project “Maily se Nirmal Yamuna” Revitalization Project, 2017. A number of directions were passed inter-alia also relating to the prohibitory orders against covering the storm water and major drains of Delhi which ultimately were meeting into Yamuna and were a source of serious pollution and degradation of water of River Yamuna. Some of the relevant directions in relation to drains in Delhi are as follows:
“V. We direct all the concerned authorities, corporations, bodies including Resident Welfare Associations to clean all the 157 natural storm water drains as identified by the Committee, within four months from the date of passing of this judgment and the drains should be made obstruction free and no waste should be permitted to be dumped in such drains. The drains may be cleaned mechanically or manually as the situation may demand. Such cleaning would include the dredging of the drains besides compliance of the specific recommendations of the Expert Committee. There shall be controlled dredging of River Yamuna to remove the huge accumulation of sediments and sludge for restoration of the cross section and flood carrying capacity of the River Yamuna.
VI. We direct all concerned to make every possible effort to ensure that the storm water drains do not carry sewage. Sewage may be carried through those drains upon which the STP's have already been installed, till the completion of the project. After the completion of the project, steps shall be taken so that only minimal quantity of treated water from the STPs reaches Yamuna.
VII. There shall be no construction and/or coverage of any of the drains in Delhi by any Authority or Municipal Corporation. All the drains shall be kept obstruction free by the concerned Corporation. Where substantial work (more than 85%) has been completed, such work is permitted to be completed by the Corporation after obtaining specific orders from the Tribunal in that regard. Rest of the work, where construction has just begun, the construction, including iron material, shall be removed. While completing such remnant work, Corporation shall ensure that the cross section of the drains to carry the requisite storm water for the flood of once in 25 years and other effluents, are not compromised. Such construction and/or removal shall be carried on in terms of paragraph no. 61 of this judgment.”
2. The Applicant Society has been registered to promote welfare to its members and provide healthcare facilities for the community. Under its objects, it has to also take up any work or activity associated with maintenance of civic amenities, welfare and cultural activities, etc. According to the Applicant Society, vide letter dated 6 April, 1965, the Municipal Corporation of Delhi conveyed the approval of Standing Committee vide Resolution No. 967 dated 2nd December, 1964 as to the proposal of covering the nallah running through Maharani Bagh layout colony which was to be completed in 12 months from the date of sanction i.e 2 December, 1964. And in 1965, the drain was fully covered with the sanction of the Municipal Corporation of Delhi. As per the Master Plan for Drainage of Storm Water, 1976, the Maharani Bagh drain, with a total length of 3.7 kms and catchment area of 554 hectares, had a maximum discharge of 19.5 Cumecs and was recognized as being built up almost in its entire reach and in total cover on the downstream side beyond Mathura Road (from R.D 2256 to 3093) and for a portion in Srinivas Puri (from R.D 1174 to 1220).
3. As there was persistent problem of water-logging caused inter alia due to silt in the storm water drain, the Delhi High Court vide its orders dated 30 April, 2013 and 22 August, 2013 in ‘Nyaya Bhoomi v. Commissioner MCD, WP(C) 8683/2011 had ordered the Delhi Municipal Corporation and Public authorities to clean and desilt all the storm water drains in Delhi including Maharani Bagh drain. The SDMC had broken/opened the Maharani Bagh drain at various locations of the colony around August, 2013 for the purpose of cleaning and de-silting the drain in furtherance of the order of the Delhi High Court. The entire process was carried out in a hurried, unplanned and slipshod manner. Despite request to the contrary, severe damage was caused to the two parks, namely, the Central Park and the E-Road Park. The Association approached the SDMC on various occasions and requested to cover the drain. However, the request was not acceded to. This drain carries sewage and other polluted and dirty water rather than storm water and leaving the drain open has resulted in unbearable stench emanating from the drain, stagnation of water, breeding of mosquitoes, spread of diseases, unhygienic and polluted conditions, etc. They had also made a representation to the Lt. Governor of Delhi on 12 and 22 June, 2014 but still no order covering the drain has been passed. The SDMC Engineering Department had prepared a plan for covering the open portion of Maharani Bagh drain with pre-cast RCC at an estimated cost of Rs. 4.68 Crores. However, no further work has been done. So far as the covered drains existing since 1965 is concerned, the Tribunal in its judgment dated 13 January, 2015 had also observed that 85% work has been completed through the concerned authorities. Though, in the present case, no new work is to be carried out and it has primarily been the prayer for restoration of the work and status of the nature as it existed in 1965.
It is also averred that Delhi High Court in its judgment in the case of ‘IFS Co-operative Society v. GNCTD in WP(C) 2385/2011 dated 24 April, 2014 had observed that whether the drain should be covered or not must be a decision taken on each case depending on various factors. The Supreme Court of India in the case of ‘Subhash Kumar v. State of Bihar, (1991) 1 SCC 598, has held that right to live is a fundamental right under Article 21 of the Constitution and it includes right to enjoyment of pollution free water and air for full enjoyment of life. Thus, the residents of Maharani Bagh Society have a right to cleaner environment. It has been averred in this application that the chemical analysis of the Maharani Bagh drain had been undertaken in June 2014 and the analysis report shows levels of Oil & Grease, Chromium, Sulphide, COD, Iron, Copper, Mercury, Arsenic, and Lead overshooting the prescribed limits. According to the Society, all these pollutants and metals have serious environmental and health effects. Lead toxicity may cause symptoms like headache, vomiting, abdominal pain, and severe toxicity may also lead to Motor neuropathy, Encephalopathy, Cerebral edema, Seizures, Coma, severe abdominal cramping, Epiphyseal lead lines in children (growth arrest) and Renal failure. In case of Mercury, anaerobic organisms bio-transform the inorganic form to methyl mercury which gets bio-accumulated in food chain and is the most toxic form of mercury and has adverse health effects like neurological disorders. Similarly, highest concentration is found in kidney and liver. Cadmium contamination associated with low diet in calcium causes disease like Itaiitai. Chronic exposure to arsenic can result in poisoning of the nervous system, liver damage and peripheral vascular disease, leading to gangrene of the lower limbs.
4. In the main judgment dated 13 January, 2015, all aspects had duly been considered by the Tribunal. The Expert Reports which were submitted by the Experts and examined by the Principal Committee and then scrutinized with approval of the Tribunal in its judgment had concluded that the storm water drain of Delhi should carry rain water and no sewage and they should be kept open in the interest of ecology, environment and public health. Comparative study was also carried out in relation to the public health factors. In fact, it is impossible in Delhi to segregate the sewage from the drain water and storm water. There are more than 1200 unauthorized colonies in Delhi which do not have sewer line and they directly discharge sewage and domestic effluent into the main drain. It was keeping in view the entire scenario that appropriate directions be passed. Thus, we do not see any reason to permit covering of the drains as a beneficial feature.
It has also been contended on behalf of the applicants that the Tribunal so far has not passed any direction for demolition of the constructions raised by the Public Authorities or private persons in and around the natural storm water drains of Delhi. In fact, where the public authorities have raised some constructions by dividing the drains, even that has not been directed to be demolished as yet. It is true that as of now the Tribunal has not passed any direction for removal of construction in the drains. Passing such a direction would be considered once the 23 existing STPs are upgraded and 32 new STPs are established which treat the sewage and discharge the water which could either be reutilized or could be permitted to flow in the drains without any environmental damage and degradation.
The judgment has been pronounced by a larger bench and has attained finality between the parties. There is no reason to change the judgment.
5. We would have normally not permitted even the covering of the remaining part of the drain but for the reason that the status existed since 1965. The applicants are not praying for carrying out any fresh alterations or a project which will be entirely laid down or cover the drain. All the drains in Delhi are expected to carry water free from obstruction, free of metals, acidic substance and smell. Once the drain trapping and STPs work, in terms of the judgment dated 13 January, 2015 is completed, Delhi will be a much healthier and better place to live. So far as the drainage system is concerned, the applicants have prayed that the status as it existed since 1965 should be restored particularly when a very small part of the drain remains to be covered and the major part of the drain is already covered.
Only with a view to restore the status as it existed, we would permit covering of the Maharani Bagh drain in Maharani Bagh temporarily by use of pre-cast RCC slabs which will not be cemented, leaving vents in between which will not be covered by laying down mud, or grass or in any other form whatsoever. The major portion of the drain would be kept open once the requisite number of STPs/CETPs, in terms of the judgment dated 13 January 2015, at Maharani Bagh are established/constructed and made operational.
The residents of applicant's association also contribute to the pollution of the drains, besides they want this work to be done on certain assumptions and for their benefit. In view of that they must be liable to pay as contributory to the ‘Precautionary Principles’ and ‘Polluter Pay Principles’. The total estimated cost is stated to be Rs. 4.68 Crores. Major part thereof should be incurred by the authorities. However, 15% of the total cost should be borne by the Society and its residents. Restoration of the drain to its status prior 1965 shall be subject to final orders which the Tribunal may pass in the main case. We further direct that till further orders, the drain would be kept in the same status as of prior to 1965, without covering the slabs by soil, grass or any other material and would be kept in a removal condition.
With the above directions, this application stands disposed of with no order as to costs.