In a welcome move Western Zone Bench of National Green Tribunal (NGT) issued an interim stay on the proposed portion of the metro route passing through the Mutha river bed in the Pune city.[i] This directive was passed in an Environmental Interest Litigation (EIL) filed in the NGT on May 26 last year by a group of citizens contending that in the proposed metro rail alignment, a 1.7 km stretch passing through the left bank of the Mutha river could cause an irreversible damage to riverbank ecosystem along that route.
In the first phase two corridors of metro have been proposed in Pune. Corridor-I is of 16.59 km length from Pimpri-Chinchwad to Swargate and Corridor-II is of 14.6 km from Vanaz to Ramwadi. The petition before NGT Pune bench is against the 1.7 km stretch of Vanaz-Ramwadi corridor proposed through left bank of river Mutha. The metro route is proposed to enter the Mutha riverbed behind Savarkar memorial on Karve Road and proceed towards Pune Municipal Corporation (PMC) Bhavan and further to Food Corporation of India godowns behind Shivaji Nagar District Court.[ii] Two Metro stations are also proposed on the riverbed, one near Deccan Bus Stand and the other behind Sambhaji Park. Presently soil testing work for the project is in progress.
It certainly seems a good news for Pune’s rivers which have routinely made headlines for their pollution and poor state in general. Closer look towards the details however would cast a shadow on this development. The alignment through the river bed has been proposed despite PMC recently facing and losing a petition in NGT against 2.3 km long (and 24 m wide) road from Vitthalwadi to NH-4 bypass which was being constructed illegally right in the Mutha Riverbed. In its final judgment in July 2013 NGT ordered the road to be realigned. Subsequently a contempt petition was filed when PMC failed to comply with the orders where the NGT in January 2015 again ordered removal of the constructed road.[iii]
SANDRP talked to one of the petitioners, Sarang Yadwadkar to understand the Pune Metro’s case, NGT petition which is being contested by Adv. Asim Sarode and implications of the interim stay.
The present petition is not about Metro alone
First thing that Yadwadkar clarified is that the present petition has been filed not just against the metro track passing through the river bed. “We are also objecting to a 30 m wide road with a length of 7.4 km proposed within riverbed. PMC has been only highlighting objection to the metro. But it is not so.”
The proposed metro track as well as the road constitutes a part of Development Plan (DP) of Pune for 2007-27 published in 2013.
The footprint of the metro in the riverbed is 17000 sq m while that of the road is 2, 22,000 sq m. So you can see that the impact of road will be several times higher on the river, Yadwadkar points out.
Original alignment was not through the riverbed
As explained by Yadwadkar the DP of Pune for 2007-27 published in 2013 shows alignment of Metro. For the Vanaz-Ramwadi corridor the original alignment shown in DP was passing through Karve Road, then turn left for Jangli Maharaj (JM) Road after which it would head towards Nagar Road crossing the Mutha River near Bund Garden. This alignment in particular and also the need to have a metro in Pune was questioned by several civil society organizations.
The metro track proposed to pass through JM Road was passing adjacent to Pataleshwar Caves which is an Archaeological Survey of India (ASI) protected monument. Heritage bye laws framed to protect such monuments prohibit any construction within 100 m radius from the monument. Violation of these by-laws would invite action from the ASI. Parisar- a Pune based NGO sent their objections to the ASI. ASI forwarded the same to PMC and asked them to change the alignment.
A committee headed by the guardian minister of Pune Girish Bapat to study alternative alignment for metro corridor-II between Vanaz and Ramwadi was appointed by the Maharashtra state government. The committee included eminent personalities like Shri Arun Firodia, Chairman Kinetic Group[iv], eminent economist Dr. Vijay Kelkar, on special duty (OSD) officer for Metro project Shashikant Limaye[v] etc. The new alignment was proposed right through river bed despite objections raised by a few committee members.
The newly proposed alignment will damage the floodplain of the river
Constructing the metro in river bed will damage the riparian zone, disrupt the vegetative cover and affect the aquatic diversity. This has been confirmed by Technical Support Group (TSG) for Biodiversity formed by PMC.
When a petition was filed against the proposed metro alignment, the NGT issued notices to PMC and other statutory bodies including Maharashtra State Biodiversity Board (MSBB). MSSB issued a letter to Chairman, Biodiversity Management Committee (BMC) of PMC in August 2016 to seek advice of Technical Support Group of BMC which has been established recently in June 2016.
A preliminary reconnaissance survey was then undertaken by the TSG to assess the biodiversity along the proposed Metro alignment and to understand the impact of proposed Metro alignment on the riparian vegetation and other micro habitats along the left bank. Floristic survey revealed as many as 63 species of flowering plants of which 30 species are native. 18 bird species including Wooly necked stork which is a highly threatened vulnerable species as per International Union for Conservation of Nature and Natural Resources (IUCN) (Birdlife International 2014) were found within the stretch. Eight species of butterflies including ‘Angled Castor’ – a rare species of butterfly – were found along the banks. Apart from this 20 algal species, seven types of reptiles, five types of mammals, three amphibian species and four fish species were found. As many as 60 trees are likely to be affected.
The report confirms that removal of the trees and loss of vegetative cover will affect the ecological balance causing disruption of habitat for small birds, raptors, arboreal mammals etc. Highlighting the present pressures on the riparian zone the report states:
“The extant flora and fauna within the riparian zone is already under tremendous impact due to various anthropogenic pressures such as existing two wheeler road which is within blue line and right in the riparian zone, illegal tourist bus parking, fast food stalls, illegal human settlements, dumping of plastic and other waste etc….
The existing two wheeler roads….have already eaten up most part of the riparian zone which is well within the blue line, a prohibitory zone….. the proposed Metro alignment…. will certainly affect the remaining riparian zone.”
The TSG report also reminds PMC that the proposed alignment will be in violation of the NGT order issued during Vitthalwadi Riverbed Road Case. The report thereby suggests exploring other alternatives pertaining to the alignment of Metro and strongly recommends EIA of the proposed Metro alignment.
The project falls within ‘blue line’ in the river flood plane
A 1.7 km stretch of metro with two stations is falling inside the sacrosanct ‘blue line’ in the river flood plain and is thus governed by a circular dated 21st September, 1989 issued by the Assistant Secretary, Irrigation Department, Government of Maharashtra.
According to this circular, the flood lines are of two types –
1) Blue line or Prohibitive Flood Line- which prohibits any construction in the area due to probability of flood during any year; and
2) Red line or Restrictive Flood Line- which shows water level upto which flood can occur during any year depending upon rainfall, but generally 1 in 100 years. Construction in this area should be restricted (excluding prohibited zone) considering possibilities of flood.
This circular was issued with a set of necessary instructions in connection with Chapter 8 of the Dam Safety Manual, 1984 detailing precautionary measures for river flood plains below the dam.
Importance of blue line and red line in the river bed was amply highlighted during the proceedings of Vitthalwadi Riverbed petition where the NGT withheld this circular. In the original order passed by NGT in July 2013 states “Two aspects are very clear – one that the circular has been issued by the Assistant Secretary concerned on behalf of the Government without any power of delegation (meaning authority to overrule this circular has not been delegated to anyone) and secondly, the circular does not admit of any exceptions.”
A Metro proposed within the blue line thus cannot be an exception and is clearly in violation with the said circular.
It cannot be exempted from the circular all the more because it is located barely 15.2 km from Khadakwasla Dam (storage capacity of 1.96 TMC) which is fed by gravity from three upstream dams viz. Panshet (10.64 TMC), Varasgaon (12.81 TMC) and Temghar (3.71 TMC). Khadakwasla is the last dam in this cascade of total capacity of 29 TMC.
The proposed alignment challenged in the NGT
Sarang Yadwadkar who has also been a petitioner in the Vitthalwadi Riverbed Road Case told SANDRP, “When we learned about the changed alignment passing by the river, we studied the DPR and found that a 1.7 km stretch of metro with two stations was falling inside the ‘blue line’ in the river flood plain. We then decided to file a case.”
“They (PMC) have been constantly running away from facing the petition. During the proceedings they had no sound rationale to justify the project. They were just trying to buy some more time so that they could expedite the tender process.
Even on the day of final argument, on Jan 02, 2017, PMC asked to postpone the final argument stating that Maharashtra Metro Rail Corporation (MMRC) be made into the ninth respondent. We argued that MMRC is only an implementing agency. They are not involved into strategic decisions. But NGT agreed to their plea. We however pleaded for an interim stay on the project as adding one more respondent will cause delay of at least two to three months.”
“Now that the NGT has stayed the project PMC has realized that they cannot just bulldoze the project. It is not so easy.”
PMC is still far from obeying NGT’s previous order
This is not the first time PMC is being dragged to the court for tampering with the flood lines of Pune Rivers. For past two decades PMC has been consistently facing court trials for constructing roads in riverbed.
Earliest petition faced by PMC for constructing road in riverbed was in 2000 when Parisar- a Pune based NGO had opposed the PMC plan to construct a road along the Mutha river on grounds that the PMC does not have the right to construct road as per section 205 of BPMC Act as it was not mentioned in the DP. It had also pointed out that the road will disrupt ecological balance in the area. The road proposed by PMC stretched along the Mutha River in the city from Mhatre Bridge to Sambhaji Bridge and then to Shivaji Bridge over a distance of 4.3 km.[vi]
Construction of the road was started around 1997 but was halted following the trial court stay order in 2000. In July 2011 the District Court ruled in favor of PMC stating that Parisar had no locus standi to institute such a suit against Pune Municipal Corporation. The case was subsequently dismissed in High Court in November 2012 and also in Supreme Court in January 2013.[vii]
Perhaps gaining confidence from winning the petition filed by Parisar PMC, without obtaining necessary permissions, started with construction of 2.3 km long (and 24 m wide) road from Vitthalwadi to NH-4 bypass right in the Mutha Riverbed. In January 2013 a group of citizens from Pune challenged this construction. Parineeta Dandekar of SANDRP was a part of this petition along with Sarang Yadwadkar, Vivek Velankar of Sajag Nagarik Manch and few others. Adv. Asim Sarode was representing the applicants in the court.
Likely damage that the road would cause to the river was considered seriously by NGT. NGT passed several strictures on PMC during the petition. PMC was constructing this road right within the Mutha river bed elevating the level of the road by 20 ft. to 30 ft. by way of illegal dumping rubble and earth. Tens of thousands of truckloads of debris and soil were dumped right in the river bed for elevating the road. As a result, there was a reduction of the width of the river Mutha by about 55%. The road would reduce carrying capacity of the river protection zone which is meant to assimilate the discharge from the dam and to protect the city from floods. The construction of the road would form a continuous obstruction to the natural flow of the river, thereby increasing storm water stagnation in the densely populated residential areas.
NGT imposed certain conditions subject to which the project was allowed to continue. Most important of the conditions was that PMC “shall make every effort to realign the road to bring it as far as possible closer to and beyond the blue line…It shall ensure to extend the least part of the project in the river bed/blue line.” The order stated that the road shall be constructed on elevated pillars alone in the area that falls within the blue line and directed PMC to remove the debris dumped at the present site and shift the same to the red line. A massive plantation should be undertaken on both sides of the river, also in the no-development zone by the PMC.
PMC however continued with the construction despite the NGT order. Road construction which was 40% complete in January 2013 was nearly complete by January 2014. When a contempt petition was filed for failing to obey the court orders it was admitted by PMC that 92% of the construction is complete. To NGT’s dismay taking refuge in the ‘conservative use’ of words by NGT PMC argued that NGT had not asked for demolition of the existing road. In its final judgment over contempt petition in January 2015 NGT explicitly ordered demolition of the road stating “(PMC) shall remove all the debris dumped including embankments constructed at the present site particularly, within blue line…” NGT also warned of penal action under NGT Act of 2010 if orders are not followed this time.
It has been three years and the embankments and the debris are still lying in the riverbed. Penal consequences may hopefully soon follow.
WRD aiding the flood line violations
In the Vittalwadi Riverbed Road Case the Water Resources Department of Maharashtra (WRD) not only tried to cover up PMC’s illegal act but also tried to facilitate the process in many ways.
Letter issued by the Assistant Executive Engineer, Pune Irrigation Circle, Pune on May 12, 2012 was obtained under RTI by the petitioners. The letter stated that no permission has been obtained by the irrigation department for the said project. During the petition when the project was already 40% complete Irrigation Department issued a post facto conditional NOC to the project.
NGT pointed out that at the time of work no such permission was obtained and also made it clear in the judgment that “The Chief Engineer is not vested with the power to vary the terms of the circular (of 21st Sep 1989), and that too to the extent of violation.”
Realising that the said circular was proving to be a hurdle in the project and was strong point of the petitioners WRD tried to amend the circular through a Government Resolution (GR) during proceedings of the contempt petition. On August 8 2014, WRD, through a GR authorized Irrigation Department’s regional chief engineers to issue a no objection certificate “if some unavoidable works are to be carried out by various departments in the prohibited zone or in the flood affected zone.” The GR mentions that as per various city development plans, the regional chief engineers can issue no-objection certificates for constructing roads, gardens and jogging tracks on riverbeds, flood protection walls on river banks, or laying sewerage pipes within the blueline area, claiming that these will neither erode the riverbed cross-sections nor interfere with the natural flow. [viii]
This GR was termed as ‘illegal’ by the NGT and was struck down.
Another GR was issued on March 02, 2015 which would empower the Chief Engineer of the Irrigation Department to alter blue lines ‘on demand’ from the concerned Collector or other department. This GR was challenged by Yadwadkar in NGT. Taking cognizance of incidences of arbitrary modifications of blue line by different departments (as the circular did not specify as to who could modify the flood lines), On March 27th 2015 the Bench ruled[ix] that the blue line could be drawn by the Irrigation Department only on demand or urgent notification by the District Collector of any impending flood-like situation where a river flows above the danger level.[x]
It is shocking and unfortunate that despite NGT giving a clear judgment against them for violating the circular in the Vitthalwadi road case, neither PMC nor Irrigation Department has learned any lesson and continue to flout the norms to suit their convenience.
When I asked Sarang Yadwadkar, “PMC has already faced and lost the case against Vitthalwadi riverbed road construction, then why is it being repeated?” His answer was: “It is because those who are responsible, are not punished.”
There has been no action ordered against bureaucrats in Vitthalwadi case. “It is unfortunate, but our courts are a little lenient towards bureaucrats.” says Yadwadkar. According to him though politicians are the driving force they cannot be caught on paper.
He further asks “And why should we be discounting citizens? Aren’t they equally responsible?”
Let us hope that the proposal for Metro will be duly altered after the petition and constructions through riverbed will not become a trend. More importantly, NGT will take steps to ensure that such violations are not repeated and citizens will also show the alertness and action to stop such violations.
Amruta Pradhan, firstname.lastname@example.org, SANDRP
National Green Tribunal Judgment dated July 11, 2013 for application APPLICATION NO. 02 of 2013
National Green Tribunal Judgment Dated 14 January 2015 for M.A. No. 52 of 2014 IN Original Application No. 2 of 2013
Report of Technical Support Group on Biodiversity, Biodiversity Management Committee of Pune Municipal Corporation
Government Resolution dated 02 March 2015 (नयायाप-2014/(प.क.424/2014)/सस.वय.(महसूल), Irrigation Department of Maharashtra
Government Resolution dated 08 August 2014 (एफडीडब्यू-2013/(प.क.281/2013)/सस.वय.(महसूल)), Irrigation Department of Maharashtra
National Green Tribunal Judgment Dated March 27, 2015 for APPEAL NO.25 OF 2014(WZ)
[ii] Report by Biodiversity Technical Support Group of Biodiversity Management Committee, Pune Municipal Corporation
[iii] National Green Tribunal Judgment Dated 14 January 2015 for M.A. No. 52 of 2014 IN Original Application No. 2 of 2013
[ix] NGT Judgment for APPEAL NO.25 OF 2014(WZ) dated March 27, 2015