ORDER
1. The issue raised in this application is unauthorized construction carried out by private respondent in terms of constructing an approach road, RCC construction of a permanent bridge connecting two ends of the hotel, as well as raising the height of anicut which is contrary to the law as led by the Hon'ble High Court of Rajasthan in Abdul Rehman Vs State of Rajasthan & Ors. and illegal construction resulting obstructing the natural flow of water in the river/naala which is said to be one of the important sources of water to the Gandharva Sagar Lake known as Gadele Ka Talab, a natural source of water for the villages Raya, Ghasa, Tehsil Mavali, District Udaipur and it is further alleged that construction of forestated hotel, approach road, increasing the height of anicut has all been done without obtaining proper sanction or consents to establish and operate from the state authorities and the entire construction is illegal and being carried out blatantly for advancing the commercial interest of the private respondents and ensuring that the local villagers are deprived of natural source of water.
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2. The matter was taken up by this Tribunal on 20.12.2021 and the Joint Committee consisting of (i) District Collector, Udaipur, Rajasthan (ii) Representative from RSPCB and (iii) Executive Engineer, Minor Irrigation, Udaipur, Rajasthan was constituted with the direction to submit the factual and action taken report.
3. In compliance thereof, the joint committee submitted the report, which is as follows :-
"In compliance of the order of dated 31.03.2022, in the matter of original application number 94/21 (CZ) Sh. Kapil Surana v/s State Government and others pending before the National Green Tribunal, Bhopal a committee has been constituted vide office order no. F5(/CEWR/ SE(W)/OA No. of 2021/1121 dated 02.05.2022 with the direction of Principal Secretary, Water Resources. This committee comprises of District Collector, Executive Engineer Water Resource Division and District Level Officer of RSPCB from both districts Udaipur and Rajsamand.
In compliance of the above the said site was visited on May 08, 2022 by the members of the committee and other concerned officers mentioned as below:-
Rajsamand District: District Collector Rajsamand, Executive Engineer Water Resources Department Rajsamand, Regional Officer Pollution Control Board Rajsamand, concerned Sub Divisional Officer, Tehsildar & Patwari etc.
Udaipur District: Chief Executive Officer Zila Prishad Udaipur, Superintending Engineer Water Resources Department Udaipur, Executive Engineer Water Resources Department Udaipur, Regional Officer Pollution Control Board Udaipur, Sub Divisional Officer Badgaon, Block Development Officer Badgaon, concerned Tehsildar & Patwari etc. (District Collector Udaipur had already visited the site earlier). The Raya anicut is situated on the nallah in village Raya, Gram Panchayat Kailashpuri, Panchayat Samiti Badgaon, District Udaipur and Village Ghati Ka Math, Gram Panchayat Ghodach, Panchayat Samiti Delwara, District Rajsamand and is therefore situated partly in both the districts. The pNllah is the dividing line between both the districts Udaipur and Rajsamand.
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The important points discussed jointly at the site and the factual report is as follows:-
1. Regarding Increase of height of anicut
According to the letter and drawings received from Seva Mandir the said anicut was constructed by the village community in the year 2000 2001 with the help of Seva Mandir. Photocopy of the letter and the cross section of anicut provided by Seva Mandir.
Facts of the site are as follows:
(a) Differences have been found in spot measurements taken at site and drawing/detail provided by Seva Mandir. As per details provided by Seva Mandir, the height of the anicut from the NSL is 3.00 M., while as on date the height of the anicut found from the NSL is 4.20 M. That is 1.20 M greater than the height shown in the drawings provided by the Seva Mandir. Therefore it is clear that height of the anicut has been increased in the recent construction/ repair from 3.00 M. to
4.20 M. i.e., the height is increased by 1.20 M. For this construction / increase of height permission has not been taken from Water Resource Department.
(b) According to the representative of respondents 5 to 7, the repair work of anicut has been done by them after obtaining no objection certificate from gram panchayat Kailashpuri District Udaipur and gram panchayat Godach District- Rajsamand to prevent leakage of the water from the anicut.
(c) This repair/construction has been done in such a way that the old construction has been covered with RCC.
(d) The anicut is situated in upstream on the nallah which is the catchment of Ghasa Talab/ Gandharva sagar Talab. The capacity of Ghasa Talab/Gandharva sagar Talab is 209.04 mcft. Due to this increase of height the submergence area of anicut and its capacity has increased which will have very minor effect on yield of Ghasa Talab/Gandharva sagar Talab.
(2) Regarding Approach Road
The bituminus road heading from the main road that is from village Raya to Matata and primary school is about 2.50 km. which was constructed by the Public Works Department as per information from villagers. Beyond that there is a kachha road
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about 1.6 km. up to anicut. This kachha/unpaved road is running around the nallah somewhere on the left and somewhere on the right side of nallah and also in the portion of nallah somewhere. As told by villagers It was access road for supply of material during the original construction of this anicut in year 2000-2001. This kachha/unpaved road will not create obstruction to the natural flow of water. The kachha road cannot be used for movement during monsoon period.
(3) Regarding Construction of Bridge A RCC bridge was found constructed recently on the nallah upstream to the anicut by the respondents 5 to 7 to connect one end of the hotel to the other. It was told by respondents representative that it has been built after taking permission. On asking to show the permission letter, they were unable to provide it.
(4) Regarding Kachha road across the nallah A kachha earthen road/temporary path was also built across in the nallah portion on upstream side of anicut which was now removed. Although some portion of it was still visible for which direction were given to representative of respondents 5 to 7 to remove it properly.
(5) Regarding Excavation of river/nallah bed There was some excavation activity found on the sides of nallah portion on the upstream side of anicut within the premises of the respondents 5 to 7. It was advised to the representative of respondents to restore the nallah to its original shape.
(6) Regarding Permission of Rajasthan Pollution Control Board:
It was apprised by the officers from RPCB that consent to establish has been accorded by RPCB, Jaipur for the hotel/resort."
4. Respondent nos. 1, 3 and 4 have filed the reply with the facts that the length of Anicut is 58 meters and the width of river is equally divided with the two Districts, 29 meters in Rajsamand and 29 meters in Udaipur.
5. It is further submitted that the construction raised by the respondent are within his own land. Respondent no. 2 State Pollution Control Board has submitted the reply with the facts that vide letter dated 01.10.2021, the
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permission to Consent to Establish was granted and that is valid from 28.05.2021 to 27.04.2026.
6. Respondent nos. 5 to 7 have filed the reply with the following facts :-
i. The answering respondent are constructing the hotel after due conversion of land by the competent government authority for the said purpose and after obtaining all requisite permission from the concerned departments.
ii. That the no illegal construction is being carried out by the answering respondents. Further, as far as RCC Box-Culvert which is the only means to connect the duly converted residential land of the answering respondents on both sides of the Nalla, is concerned same has been constructed with prior permission the Gram Panchayat, Ghorach and other concerned departments. It is pertinent to mention here that while constructing the box-culvert no natural water flow has been obstructed and the said bridge has been constructed after taking due technical consultation.
iii. That part of the approach road to the village was constructed by the government in the year 2013 and the remaining road is a Kaccha Rasta which has been used by the villagers from long-long years. This approach road and Kachha Rasta is the only way for villages.
iv. That the contents of para 6.3 of the original application are not disputed to the extent of the judgment passed by the Hon'ble High Court and hte answering respondents have highest regards to the judgments passed by the Hon'ble Court's. However, it is submitted that the judgement referred herein cannot be relied upon for the reasons that the natural flow of water has not been obstructed, further the anicut was build way before 2004 and the answering respondents have only repaired the anicut under their corporate social responsibility activity on the request of local administration i.e. Gram Panchayat. It is pertinent to mention here that there is no change in the size of the anicut while carrying out the leakage/repair work of the anicut as it has a massive seepage and its purpose of construction was detriting.
v. That the answering respondents have not obstructed the natural flow of water while repairing the Annicut or while constructing the box-culvert. It is pertinent to mention here that the total reservoir
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capacity of Dam is 5932379 m3 i.e. 0.3% of Dam capacity. Therefore, the capacity of Annicut is negligible as compared to the capacity of Dam and total discharge of dam location is a combination of multiple streams merging prior to reservoir location. It is pertinent to mention here that the Gandharwa Sagar had dried in the year 2017 the people use to cultivate, again in the year 2021 the Sagar was recharged with water.
vi. That the answering respondents have obtained consent to establish from Rajasthan State Pollution Control Baord which is valid upto 2026. The Photo copy of the consent to extablish letter dated 01.10.2021. it is pertinent to mention here that the hotel is not in operation and the operation will commence after obtaining due consent to operate from Rajasthan State Pollution Control Board.
vii. The Annicut at village Raya was built way back in the year 2000.01 by the villagers with the help of Seva Mandir.
viii. The answering respondents have carried out the work of leakage repair of the Annicut under the CSR activity on the request of Village Panchayat, Kailashpuri, Tehsil Badagaon and Village Panchayat Ghodach, Tehsil Delwada, District Rajsamand. During the course of work the applicant and his father Shri Mahendra Surana made false complaints against the answering respondents due to which the repair work of Annicut could not be completed. Thereafter, the village Panchayats again directed the answering respondent to complete the repair work of Annicut as the monsoon was approaching. It is pertinent to mention here that the Village Panchyats in their letter addressed to the District Collector, Rajsamand have categorically stated that the father of applicant is misleading the state authorities by making false complaints and giving wrong information with respect to repair work of Annicut.
ix. The local residents of the village Kailashpuri and Village Ghochad have made complaint to their respective Sarpanch clearly stating that the applicant an his father have made false complaints against repair work of Annicut and Kachha Rasta. It has also been stated that the local resident were manipulated by the applicant and his father while making complaint to Seva Mandir on behalf of the local residents.
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x. The father of the applicant Shri Mahendra Surana has filed a suit before the SDM, Badgaon, Udaipur under section 188 of the Rajasthan Tenancy Act. The answering respondents are necessary party to the suit through Manager, Valencia, Ekkaya Resort, in the said suit also the father of the applicant with malafied intention have taken plea that the answering respondents have illegally constructed, increased the height of anicut, encroached over revenue land and constructed box-culvert etc.
xi. The father of applicant thereafter filed a complaint before Deputy Superintendent of Police, Nathdwara, District Rajsamand. It is pertinent to mention her ethat the applicant's father in this complaint has admitted that he is using this rasta since long back, contrary to his own admission the applicant has alleged that answering respondents have constructed the rasta.
xii. That the Gram Panchayat, Ghodach has issued NOC dated 05.02.2021 and 24.02.2020 to answering respondents for constructing the approach box-culvert between the dully converted residential lands of the answering respondents on both sides of the nalla.
xiii. That the photographs and google images shown by the applicant, have been presented before this Hon'ble Tribunal with misleading facts. The approach road along Nalla wa in existence and is being used by the local residents to reach their respective lands, at some places the approach road is submerged in Nalla. Further, the construction of box-culvert was done after obtaining due permission and as per technical requirements so that the natural flow of water shall not be disturbed. The construction of box-culbert has been inspected by the Executinve Engineer, Public Works Department and Executive Engineer, Irrigation Department. During inspection it was observed by the authorities that there is no obstruction in the flow of water.
xiv. That the initially the dispute against the answering respondents was initiated by the applicant's father which was purely a civil suit pertaining to property. However, when applicant's father could not succeed in the civil suit on the basis of false allegations, the said dispute was turned into an environment protection litigation before this Hon'ble Tribunal by the applicant.
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xv. That the image of the anicut shown in the newspaper article was of the time when the work of anicut was stopped due to false allegations/complaints made by the father of applicant before various authorities. The said work has already been completed on the request of Gram Panchyat's, the detailed reply has already been submitted in the preceding paras."
7. The report submitted by Tehsildar, Girwa District Udaipur, communicated vide letter dated 03.08.2021 contains the fact that :-
a) That the upper portion of the anicut was damaged and approval for construction was sought from the Zilla Parishad Rajasmand, Kailashpuri as well as the Gram Panchayat, Kailashpuri. It was also stated that the top portion of the anicut was thin and to level the same new construction on the anicut was undertaken.
b) As per the spot proceedings, the top level the anicut seems to same.
c) It is stated by the non-applicant that up to anicut a raw road/way has already been made in their Khatedari land.
d) The report submitted to the Additional Superintendent of Police on 29.09.2020 reveals that there was a dispute of joint property and the matter of making anicut or raising the height of anicut was raised before the competent authorities and the complaint no. 270/2020 was registered by the applicant. There was a complaint of creating forged documents and sale deed where it is alleged that some signatures were forged and the matter was raised before Tehsildar, Badgaon. Since, the matter was raised before the Competent Authority they who proceeded in accordance with law.
8. The respondent has filed annexure R/2 from order dated 01.10.2021 issued by the State Pollution Control Board, which is order passed under The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981 for consent to establish. Annexure R/4 with the no objection certificate issued by the Sarpanch/Gram Vikas Adhikari, Village- Panchayat Kailashpuri with the facts that the maintenance of the anicut
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should be made and the Panchayat has no objection. The Gram Panchayat has further directed the respondent for maintaining the anicut. Annexure R/5 is a letter communicated to Sarpanch signed by villagers for construction and maintenance of anicut.
9. The matter of determination of right title and interests as contained in this application was subject matter of dispute before the office of the Collector, Udaipur under Section 188 of Rajasthan Tenancy Act, 1955. The matter was registered as case no. 56/2020. The representative of the respondent had filed the reply for the maintenance and preparation of pathway. Annexure R/8 letter and resolution dated 05.02.2021 and 22.02.2021 was issued by the village panchayat and was communicated to the respondent. On the basis of the complaint Collector, Rajasmand called a report from the joint committee consisting officer of Sub-division, Water Resource Department and PWD Department and it was reported that there is no restriction or hindrance in free flow of natural water.
10. Learned counsel has raised following objections against the Joint Committee Report -
"(a) The height of anicut from the bottom in Upstream and Downstream was shown 3 meters. Whereas, while on site the maximum height of anicut at one place in upstream is 4.20 meters and in downstream the height of anicut excluding the part constructed after repair i.e. old masonry construction is 3.45 meters.
Further, the height of anicut was measured in upstream from the bottom and the same varied, the variation in the height of anicut varied from 0.867 meter' 1.673-meter, 2.872-meter, 3.133- meter, 3.2727 meter, 3.445 meter, 3.715 meter, 3.514 meter,
4.200 meter, 4.153 meter, 3.9338 meter and 3.765 meter.
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(b) That the width on the top of anicut is 2.30 meters (which was constructed by masonry stone and exists as on date). Whereas, in the cross-section submitted by the Seva Mandir Sansthan, the width on the top of anicut was 2.60 meters has been shown. This shows that the width of the top of anicut is 0.30 meters is less than the actual width as proposed in the cross section submitted in the year 2000-01.
(d) That the slope of downstream in cross section was shown 1:1, whereas the slope of downstream existing as on date is in 1:0.40 which is 1:0.60 less than as shown in the cross section. Further, in cross section the height of existing masonry construction is 3.45 meter, therefore, as per 1:1 the slope should be 3.45 meter whereas the existing slope is 1.39 meter and the slope, is 2.06 meter is less than the slope shown in cross section.
(e) That as present the gate and operation of shaft of the anicut gate is existing on the over flow part of the anicut which was constructed by the Seva Mandir Sansthan. It is pertinent to mention here that the from the point where operating bolt if the anicut gate exists the height of anicut from the bottom is 4.1 meter and from the over part the old ring and bolt exists at 20 cm depth as on date. This clearly shows that the Seva Mandir had constructed the anicut originally of 4.2 meters in the year 2000-01 itself, which was repaired by the answering respondent and restored to its original shape as constructed earlier. The anicut gate was neither shown in the cross-section nor in the joint committee report submitted before this Tribunal.
(f) That part of the road till Government Primary School, Village Raya was constructed by the Public Works Department under the
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Pradhan Mantri Gram Sadak Yojana in the year 2013 and remaining road is Kachha road, this approach road is the only road to reach these villages. The joint committee has also observed that there is no obstruction in natural îlow of water due to this approach road.
(g) That the Kachha road observed by the committee across the nallah was built temporarily across the Nallah with pipes without obstructing the natural flow of water. The said road has been removed by the answering respondents.
(h) That the committee has itself observed that the excavation alongside nallah was done within the premises of answering respondent no. 5 to 7. This observation of the committee clarifies that the answering respondent has not affected the nallah or natural flow of water in any manner. It is pertinent to mention here that the excavation in the private land of the answering respondent was done for temporary approach road to reach certain parts of the land and the same has been restored after use."
11. The applicant has submitted the rejoinder with the facts that for the benefit of hotel business, the respondent has constructed the pathway and the height of the anicut was raised from 3 meter to 4.2 meter, so that the water retaining capacity of the area may be increased so as to express it as a lake or develop it as a lake and this action will directly and indirectly beautifies the site of the hotel which may be helpful for increase of the business of the respondent.
12. We have gone through the report submitted by the Joint Committee and objections raised by the respondent. In light of the reply of the respondent it was found that the pathway was partially constructed by the PWD Department for easy approach to the villagers and on the request of the villagers, it was
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maintained and improved so that there should not be any inconvenience to the villagers in approaching to the village. The Joint Committee Report specifically reveals that the repair/construction of anicut has been done in such a way that the old construction has been covered with RCC. The repair work of anicut was done after obtaining no objection certificate from the gram panchayat and that the capacity of Ghasa Talab/Gandarva Sagar Talab is
209.04 mcft. Due to this increase of height, the submergence area of anicut and its capacity has increased, which will have very minor effect on yield of the Talab.
13. It is further reported that the Kaccha road will not create any obstruction to the natural flow of water and further that the kaccha road cannot be used for movement during monsoon period. The increase of height of the anicut from 3 meter to 4.20 meter will not adversely affect the free flow of water rather it may increase the water retaining capacity, which may be used during off season by the villagers or the person in need. Since it was repair work thus in light of the permission given or no objection certificate issued from the Gram Panchayat, permission was not practically required from Water Resource Department. Though, it is left for Water Resource Department to examine from time to time with regard to the free flow of water and water retaining capacity and adverse effect on free flow of water and in-case at any point of time it is found that there is any adverse effect on environment, the Water Resource Department may take appropriate action. But the policy should be uniform policy for all the places and not to be made for a particular person or particular place only to solve the personal business rivalry or personal dispute of the person.
14. The Joint Committee Report says that some digging in nallah on the side of Project Proponent was seen and they were advised to bring them to original level project proponent must comply with directives given by Joint Committee.
15. The matter was previously raised before the Collector concerned and both the Collectors, Rajasamand and Collector, Udaipur visited the site and called the factual report and reported that the repair work has no adverse effect.
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16. In view of the above discussion, it reveals that the dispute and the matter as raised is personal dispute between the parties and repair of the anicut or use of kaccha pathway by the villagers is not affecting the environment adversely. There is nothing which may disclose the violation of environmental rules, accordingly this application as filed is not maintainable. For redressal of personal grievances with regard to right, title and interest of any property or in any joint property, the parties are at liberty to approach Competent Civil Court. Nothing survives for further actions by this Tribunal. Accordingly,
Original Application No. 94/2021 is dismissed.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM
04thAugust, 2022 O.A. No. 94/2021(CZ)
PN
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