BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
ORIGINAL APPLICATION No. 106/2021/EZ
IN THE MATTER OF:
Sisir Kumar Panda,
S/o Late Ram Prasad Panda,
Aged about 50 years,
Advocate by Profession,
R/o Nehru Nagar, 7th Lane,
Gosaninuagaon,
Berhampur,
P.S.-Gosaninuagaon, District-Ganjam,
Pin - 760003, Odisha,
....Applicant(s)
Versus
1. Union of India,
Through Secretary,
Ministry of Environment, Forests and Climate Change,
Indira Paryavaran Bhavan, Jorbagh Road,
New Delhi - 110003,
2. Chief Secretary to Govt. of Odisha,
State Secretariat, Bhubaneswar,
Pin - 751001,
3. Principal Secretary to Government,
Water Resource Department,
Odisha State Secretariat, Bhubaneswar,
Pin - 751001,
4. Principal Secretary to Government,
Home Department,
Odisha State Secretariat, Bhubaneswar,
Pin - 751001,
5. Principal Secretary to Government,
1
Forest, Environment and Climate Change Department,
Odisha State Secretariat,
Kharavel Bhavan, Bhubaneswar,
Pin - 751001,
6. Member Secretary,
Central Pollution Control Board,
Parivesh Bhavan, East Arjun Nagar,
New Delhi - 110032,
7. Member Secretary,
Odisha State Pollution Control Board,
Paribesh Bhawan, A/118, Nilakantha Nagar,
Unit-8, Bhubaneswar,
Pin - 751012,
8. Commissioner-cum-Secretary to Government,
Revenue and Disaster Management Department,
Government of Odisha,
State Secretariat, Bhubaneswar,
Pin - 751001,
9. Commissioner-cum-Secretary to Government,
Urban and Housing Development Department,
Government of Odisha.
3rd Floor, KharveL Bhavan, West Wing Room No. 301,
State Secretariat, Bhubaneswar,
Pin - 751001,
10. Revenue Divisional Commissioner, Southern Division,
At/Po: Berhampur, District-Ganjam,
Pin - 760004,
11. Deputy Director General of Forests (C),
Regional Office, Eastern Zone (EZ),
Ministry of Environment, Forests and Climate Change,
A/3, Chandrasekharpur, Bhubaneswar,
Pin - 751023,
2
12. Regional Director,
Regional Directorate, Central Pollution Control Board,
Ministry of Environment, Forests and Climate Change,
South end Enclave Block-502, 5TH & 6TH Floor,
1582, Razidanga, Main Raod,
Kolkata - 700107,
13. Tahasildar, Berhampur,
At/Po: Berhampur, District-Ganjam, Odisha,
Pin - 760004,
14. Collector-cum-District Magistrate,
Ganjam Collectrate,
At/Po: Chatrapur, District-Ganjam, Odisha,
Pin - 761020,
15. Sub-Collector, Berhampur,
At/Po: Berhampur, District-Ganjam,
Odisha - 760004,
16. Commissioner, Berhampur Municipal Corporation,
At/Po: Berhampur, District-Ganjam,
Odisha - 760002,
17. Secretary, Board of Revenue,
At/Po: Cuttack, Odisha,
Pin - 753002,
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Biranchi Narayan Mahapatra, Advocate
COUNSEL FOR RESPONDENTS :
Mr. Soumitra Mukherjee, Advocate for R-1,
Mr. Tarun Pattnaik, ASC for R-2 to 5, 8 to10,13-15 & 17,Mr. Ashok Prasad, Advocate for R-6 & 12,Ms. Papiya Banerjee Bihani, Advocate for R-7,Mr. Ramesh Sahoo, Advocate for R-16 3
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER)
HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER)
__________________________________________________________________
Reserved On:- July 26th, 2022
Pronounce On:- August 3rd, 2022
__________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes
JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER)
Heard the learned Counsel for the parties and perused the documents on record.
2. This Original Application has been filed by the Applicant for removal of illegal constructions/obstructions caused by the State Authorities as well as the private persons in the Ecological Sensitive Zone i.e. Agula Bandha (Common Water Bodies) and its embankments situated at Gosaninuagaon under Berhampur Tahasil of Ganjam District of Odisha.
3. When we put a specific question to Mr. Biranchi Narayan Mahapatra, learned Counsel for the Applicant, to show us the Ministry of Environment, Forests and Climate Change Notification declaring Agula Bandha as an Ecological Sensitive Zone or as a Wetland, the learned counsel submitted that it has not been declared as an Ecological Sensitive Zone or a Wetland by the Government of India nor has it been declared as an Ecological Sensitive Zone or a Wetland by the State Government.
4. It is stated that within the jurisdiction of the Berhampur Municipal Corporation, District Ganjam, Odisha, there are 42 ponds as per Revenue/Municipality records including Agula Bandha, the land details of which are mentioned in paragraph 4 of the original application but over a period of time a Police Station, Revenue Inspector Officer, Over Bridge, Rajib Abas Project, Maa Mangla Temple have been constructed over Agula Bandha water body and its boundary has been constructed over the water body in question.
5. The learned Counsel for the Applicant has referred to the proceedings of the meeting held on 05.02.2021 in the office of the Berhampur Divisional Commissioner, Berhampur, and submitted that the proposal to convert the 'Jalasaya Kissam' of the land in question to 'Non-Jalasaya' was taken as late as on 12.02.2021 in spite of the fact that this Tribunal had earlier decided one matter pertaining to the water bodies under the Behrampur Municipal Corporation, being Original Application No. 82/2015/EZ; (Biranchi Narayan Mahapatra Vs. State of Odisha & Ors.) and vide its order dated 24.08.2017 passed therein had disposed of the said Original Application on the assurance given by the State Government in an affidavit filed therein that the State Government may be granted reasonable time for completion of the entire process of removal of encroachers from the ponds and its embankment and their rehabilitation within one year.
6. The learned Counsel has also referred to Lok Adalat proceedings, (Annexure A-5 to the Original Application), and Award of the Lok Adalat dated 05.05.2016 in an application filed under Section 22 C(1) of the Legal Services Authorities Act, 1987 which pertains to the restoration of the status of Agula Bandha of Gosaninuagaon, Berhampur as 'Water Body'.
7. Notices were issued to the Respondents and in response, counter-affidavits have been filed.
8. The Applicant has filed a supplementary affidavit dated 12.11.2021 alleging therein that the constructions made in the premises of the 'Jalasaya' in question and its embankments are absolutely illegal and that for any such constructions, if permissible, prior Environment Impact Assessment is mandatory under the Environment Impact Assessment ('EIA' for short) Notification, 2006 issued by the Ministry of Environment, Forests and Climate Change, but the Respondents have recklessly permitted constructions to be made over the Plots in question which are water bodies without obtaining any Environmental Clearance.
9. An affidavit dated 02.02.2022 has been filed on behalf of the Respondent Nos. 6 &12, Central Pollution Control Board, and all that has been stated therein is that the EIA Notification 2006 has been amended and it is now provided that building and construction activities which cover an area of more than 20,000 square meters of built-up area would fall under 'Category-B' and it is mandatory for the Project Proponent to obtain Environmental Clearance from the State Environment Impact Assessment Authority ('SEIAA' for short), in addition to other statutory provisions such as Consent to Establish and Consent to Operate from the State Pollution Control Board under the Water (Prevention and Control of Pollution) Act, 1974.
10. The Respondent No.16, Berhampur Municipal Corporation, has filed its affidavit dated 28.02.2022, wherein it is stated that the pond in question, namely, Agula Bandha, is not situated over the entire land of 18.480 acres in Khata No. 1375 as alleged by the Applicant, rather the water body is situated on Plot No. 1509 area 6.860 acres and 0.086 acres of Plot No. 438. It is also stated that constructions which have been made are all public utility services undertaken in the greater interest of general public of the Bermapur town and that constructions have been made over land which has lost its characteristic as 'Jalasaya' (water body). It is also stated that the Kisam of Plot Nos. 1509/2918, 1509/2638, 1509/3123 have been changed to 'Patita' Kisam by the orders passed in Alienation Miscellaneous Case No. 662/1994, Alienation Miscellaneous Case No. 1/1991 and Alienation Miscellaneous Case No. 41/1998. It is also stated that Kisam of Plot No. 1509/4190 and 438/4189 have been changed to Kisam 'Gharabari' (Homestead) by virtue of the order passed in Alienation Miscellaneous Case No. 01/2020. In support of the averments, Mr. Ramesh Sahoo, learned Counsel for the Corporation has referred to the document filed as Annexure B/16 (at page no. 361) to the affidavit, which is the record of the Office of Tehsildar, Berhampur, Ganjam, dated 23.02.2022 which reads as under:-
"OFFICE OF THE TAHASILDAR, BERHAMPUR, GANJAM (ODISHA) Ph: (0680) 2283824 Email: tah_berhampur@yahoo.in Letter No. 899 Date 23.02.2022 To The Commissioner, Berhampur Municipal Corporation.Sub: Submission of detail field report, land status and structures related to NGT case No. 106/2021 Mouza- Gopabandhunagar of this tahasil.Ref: Your Good Office L. No. 2954 dated 21.02.2022. Sir, In inviting a kind reference to the letter on the subject cited above, I am to intimate that as per the report of the Rev. Inspector Gosaninugaon RAY Project, RI Office, Gosaninugaon Aganwadi Centre, Police Station Gosaninuagaon, Consumer forum court, Railway over bridge and other construction are exist over Plot No. 1509, 438, 437, 1510 in different khatas of Mouza Gopalbandhu Nagar. The detail field report, land status and structures related to NGT case No. 106/2021 Mouza Gopabandhunagar are as below:- Khata Plot No. Area Kisam RT Remarks No. 1375 1509 6.986 Jalasaya Rakhita Agula Bandha Khata Railway Over Bridge 1510 0.719 Adi 437 0.148 Adi 438 0.086 Jalasaya 1373 1509/2918 1.000 Patita Anabadi RAY Project & Khata Consumer forum 1509/2638 2.480 Patita RAY Project 1509/3132 1.000 Patita RI Office, Aganwadi Centre 1372/3 1509/4190 0.040 Gharbari Gosaninuagaon Police Station 438/4189 0.300 Gharbari 1372/1 1509/3030 0.120 Patita Khadya Jogan Bivag (Odisha)The demarcated report of RI Gosaninuagaon with Trace Map and RoR copy of the land scheduled are enclosed herewith for favour of your kind information and necessary action. Encl: As above Yours Faithfully, Tahasildar, Berhampur,"
A perusal of the aforesaid document would show that a Jalasaya continues to exist over an area of 6.986 acres on Plot No. 1509 and over 0.086 acres on Plot No. 438.
11. In his rejoinder affidavit dated 09.04.2022, the Applicant has alleged that the constructions, namely, Gosaninuagaon Police Station, Revenue Inspector Officer, Over Bridge, Rajib Abas Project, District Consumer Disputes and Redressal Commission, Railway Over Bridge, Khadya Jogan Bivag (Odisha), and Aganwadi Centre have been made over the Plot No. 1509, 438, 437 and 1510 of Khata No. 1375 of Gopabandhu Nagar Mouza of Berhampur Tehsil of Ganjam District, Odisha, as would be evident from the document dated 23.02.2022 (already extracted herein above). It is also stated that the State Government is constructing a morrum road with connectivity between Gosaninuagaon Police Station and District Consumer Disputes Redressal Commission by filling up the Agula Bandha (Jalasaya/Water Body).
12. The Respondent No.7, Odisha State Pollution Control Board, has also filed its affidavit dated 05.04.2022, bringing on record an Inspection Report of an inspection carried out on 31.01.2022 of Agula Bandha water body filed as Annexure R-7/1 (page no. 444 of the paper book). The Observations and Conclusion & Recommendations in the Inspection Report are reproduced herein below:-
"Following Observations are made during inspection:1. From the surroundings it was observed that waste water was discharged to the Agula Bandha near Revenue Inspector Office. Gosaninuagaon in West direction.2. One no. of storm water drain outlet was found to be connected to Agula Bandha near Gosaninuagaon Police Station in West direction.3. It was apprehended from the surroundings, during rainy season surface run off might be discharged into the water body as guard wall was not constructed around the Agula Bandha.4. There is no provision for removal of excess water during rainy season from the water body.5. Agula Bandha water body is filled with Algee, crabgrass and yellow nutsedge and other foreign particles on its surface.6. Solid waste including plastic bottles are found to be dumped near its embankment towards western part of the water body.7. Collected one no. of water sample from Agula Bandha on 20.02.2022 for analysis. The analysis result thus obtained indicates that water quality does ot conform to Class B (Outdoor Bath Organised) with respect to Dissolved Oxygen (DO). Biochemical Oxygen Demand (BOD) and Total Coliform (TC), MPN/100 ml as per the classification made by CPCB(ADSORBS/3/1978-79).8. Such non-conformance with respect to DO, BOD & TC may be due to discharge of wastewater into the water body.Conclusion & Recommendations:In view of the above following recommendations are made:1. Immediate steps shall be taken to stop discharge of waste water into Agula Bandha.2. Municipal Authority shall take necessary measures to remove the solid materials including plastic bottles, Algee, crabgrass and yellow nutsedge and other foreign particles from the surface of the water body.3. Necessary steps shall be taken by the Municipal Authority to stop/divert outlet of storm water drain into the water body.4. There shall be provision for removal of excess water during rainy season from the Agula Bandha.5. Awareness shall be created among the local people of the surrounding areas to prevent disposal of garbage into the water body."
13. The Collector & District Magistrate, Ganjam District, has also filed an affidavit dated 30.04.2022, stating therein that the common pond Agula Bandha does not exist over all the plots as alleged by the Applicant in his Original Application and, in fact, the common pond is now confined only to an area of 6.860 acres in Plot No. 1509, Khata No. 1375 and this water body has been preserved intact. The details of the other plots on Khata No. 1375 are mentioned in para 4 of the affidavit which reads as under:-
"4. Save what are matters of record, the averments made in paragraph 4 of the Original Application are disputed and denied. The averment of the Applicant that Agula Bandha is a common water body is disputed and denied. The common pond does not exist over all the plots as mentioned in this paragraph. The common pond is now confined to Plot Nos. 1509 over an area Ac. 6.860 dec. in Khata No. 1375. The water body has been kept intact. The area of the other plots in the Khata are (i) Plot No. 438 area 0.080, (ii), Plot Nos. 1504/1788 Area 0.005, (iii) Plot No. 1507/1791 Area 0.008, (iv) Plot No. 1506/1790 Area 0.006, (v) Plot No. 1505/1789 Area 0.005, (vi) Plot No. 1502/1786 Area 0.006, (vii) Plot No. DI-438 0.438 recorded as Jalasaya, (viii) Plot No. D1 437 area 0.148, (ix) Plot No. 1510 Area 0.719 recorded as Agula Bandha Adi. The aforesaid details of the Plots described with the corresponding area are evident from a bare perusal of the Record of Right. The deponent undertake to file translate copies of RoR at the time of hearing, if necessary.It is also pertinent to mention that the Respondent No.14 vide its order dated 27.03.1993, by exercising its power under Section 3A of OGLS (Amendment and Validation) Act, 1975, has sanctioned the de-reservation of the government lands in Khata No. 1375 Plot No. 1509 admeasuring an area of 3.600 acres out of 11.500 acres which had already lost its original characteristics of Jalasaya. Further, on 19.08.1999, the Respondent No.14 vide its order dated 19.08.1999, has sanctioned the de- reservation of the government lands in Khata No. 1375 Plot No. 1509 admeasuring an area of 1 acre out of 7.900 acres which had already lost its original characteristic of Jalasaya. The constructions such as Ray Project, consumer forum, Revenue Inspector Office, Anganwadi Centre, Gosaninuagaon Police Station, temple Khadya Jogan Bivaga have been carried over the plots after the said plots had already been de-reserved and classified as Patita."
14. It is also stated that the Respondent No.14, Collector-cum- District Magistrate, Ganjam District, in exercise of powers conferred in Section 3A of Orissa Government Land Settlement (OGLS) (Amendment and Validation) Act, 1975, vide his order dated 29.03.1993, has sanctioned the de-reservation of the Government Lands in Khata No. 1375, Plot No. 1509 admeasuring an area of 3.600 acres out of an area of 11.500 acres which had already lost its original characteristics of 'Jalasaya'. It is further stated that the Collector & District Magistrate, Ganjam, vide another order dated 19.08.1999, has sanctioned de-reservation of Government Lands in Khata nO. 1375, Plot No. 1509 admeasuring an area of 1 acre out of 7.900 acres which had already lost its original characteristics of 'Jalasaya'. It is also stated that the constructions such as - Ray Project, Consumer Forum, Revenue Inspector Office, Anganwadi Centre, Gosaninuagaon Police Station, Temple, Khadya Jogan Bivag, have been made over these plots after the same had been de- reserved and classified as 'Patita'. The Record of Rights have also been filed as Annexure-B/14 (colly) to the affidavit. The details of constructions which have been made in Khata No. 1373, Plot No. 1509/2918, Plot No. 1509/2638, Plot No. 1509/3123, Khata No. 1372/3, Plot No. 1509/4190 & Plot No. 438/4189, Khata no. 1372, Plot No. 1509/3030 and Plot No. 1509/2918 are given in para 5 of the affidavit which reads as under:-
"5 .......xxxx.......xxxx........xxxx........xxxxx.......xxxx........a. Consumer forum building which is part of Ray project, has been constructed over Khata No. 1373, Plot No. 1509/2918 admeasuring over an area Ac. 1.000 and the nature of the said land is Kissam Patita. b. Plot No. 1509/2638 admeasuring an area of Ac. 2.480 decimals and the nature of the land is Kissam Patita. The said area has been reserved for Ray Project. c. Revenue Inspector Office and Anganwadi Centre have been constructed over Plot No. 1509/3123 admeasuring an area Ac. 1.000 and the nature of the land is Kissam Patita.d. Gosaninuagaon Police Station, Berhampur has been constructed over Khata No. 1372/3, Plot No. 1509/4190 having an area of Ac. 040 decimals and Plot No. 438/4189 having an area of Ac. 0.300 decimals. The nature of the land is Kissam Gharbari. e. In Khata No. 1372/1 Plot No. 1509/3030 area Ac. 0.120 Kissam Patita for Khadya Jogan Bivag (Odisha) Office and the Railway over bridge is constructed over the Plot No. 1510 and 437 Kissam Ad of the Agula Bandha.f. Maa Mangala Temple constructed over the Plot No. 1509/2918 over an area of Ac. 0.012 and the nature of the land is Kissam Patita."
15. It is also stated that the existing water body in Agula Bandha is confined to Plot No. 1509 admeasuring an area of 6.860 acres and all necessary steps have been taken to protect the existing water body and steps have also been taken by the Tehsildar to remove encroachments in and around the water body in question. It is also stated that the 'ADI' is not a water body but is a embankment of pond situated on the periphery of the pond. It is also stated that in a meeting held on 05.02.2021 under the Chairmanship of the Revenue Divisional Commissioner (R.D.C.) (Southern Division), Berhampur, necessary permission has been accorded for changing the Kisam of land from 'Jalasaya-I' to 'Patita' and the Collector, Ganjam, in pursuance of the decision taken by the Committee, has vide his order dated 01.03.2021 effected the transfer of the land measuring 0.300 acre in Plot No. 438 and 0.040 in Plot No. 1509 of Khata No. 1375 in favour of Home Department for construction of Gosaninuagaon Police Station since the land had lost its characteristics of 'Jalasaya'.
It is reiterated that this area has not affected the remaining water body of Agula Bandha. It is also stated that the construction of Gosaninuagaon Police Station is for public purpose and covers the area from Ward No. 24 to 28 of the BeMC, Berhampur and Mouza New Khajuria and Old Khajuria and other nearby establishment areas. It is also reiterated that only those lands have been de-reserved from 'Jalasaya' to 'Patita' which have lost their characteristic as 'Jalasaya'.
16. Mr. Biranchi Narayan Mahapatra, learned Counsel for the Applicant has placed reliance upon certain judgments in support of his contention that a water body cannot be allowed to be converted into any other kind of land other than the water body and encroachments thereon also cannot be permitted.
17. Reference has been made to the judgment of the Tribunal dated 24.08.2017 passed in Original Application No. 82/2015/EZ; (Biranchi Narayan Mahapatra Vs. State of Odisha & Ors.), which was in respect of all water bodies including Agula Bandha and a direction was issued by the Tribunal to complete the entire process of eviction and comply with the orders of the Tribunal within six months and also to remove all encroachments from the ponds and its embankments and their rehabilitation within one year. There can be no quarrel with the directions given by the Tribunal in Original Application No. 85/2015/EZ.
18. The stand of the State Respondents is that an area of 6.860 acres over Plot No. 1509 in Khata No.1375 is still preserved as 'Water Body' and steps have been taken by the Tehsildar to remove encroachments from the said water body and its embankments.
19. Reference has also been made to the judgment of the High Court of Odisha passed in Writ Petition (C) No. 8797 of 2004; (Tapan Kumar Das Vs. Commissioner, Cuttack Municipal Corporation & Ors.) along with other connected cases decided on 11.10.2012. The High Court gave certain directions to the effect that Revenue Divisional Commissioner (R.D.C.) (C.D.) Cuttack, shall form a Committee and this Committee shall deal with the protection, preservation and conservation of water bodies in the city of Cuttack and take decision accordingly. It was also provided that applications for change of classification/kisam of land from 'Jalasaya' to 'Homestead' shall be processed through the Tehsildar, Sadar, Cuttack, to the Collector for appropriate orders and the decision of the Collector shall then be placed before the Committee for approval and if the Committee is of the opinion that the lands which have lost their characteristic as 'Jalasaya' and those which are actually not 'Jalasaya' or 'Swampy' lands but have been recorded as 'Jalasaya', change of classification of such lands may be allowed. The Division Bench of the High Court further directed that it will be open for the State Government to adopt the directions given in respect of Cuttack city for other cities in the State. Paras 14 and 15 of the High Court judgment are extracted herein below:-
"14. Considering the facts and circumstances of the case, for preservation and conservation of tanks/water bodies in Cuttack City, and to deal with such tanks/water bodies, we direct as follows:(1) The State Govt. shall act upon the report dated 31.08.2007 submitted by the R.D.C (C.D.) Cuttack, and the affidavit dated 18.05.2020 filed by the Principal Secretary to Govt. H&U.D. Department and shall ensure that the steps indicated therein are taken within a period of two years from today.(2) The R.D.C. (C.D.) Cuttack, under his chairmanship shall form a Committee not exceeding seven members including the Vice Chairman, C.D.A., Municipal Commissioner, CMC, Cuttack, and an Environmentalist of the State Pollution Control Board, Odisha. Needless to say, the other members of the Committee shall be nominated by the R.D.C. The Committee shall deal with the protection, preservation and conservation of water- bodies in the city and shall take decisions accordingly. (3) The applications for change of classification/kissam of lands from Jalasaya to homestead shall be processed through the Tahasildar, Sadar, Cuttack, to the Collector for appropriate orders. The decision of the Collector shall be placed before the Committee as constituted above for approval. Only after approval of the Committee, change of classification/kissam of the land shall be allowed. The Committee shall record the reasons for allowing change of classification/kissam of such lands. However, if the Committee is of the opinion that the lands, which have lost their character as Jalasaya, and those, which are actually not Jalasayas or swampy lands but have been recorded as Jalasaya, change of classification of such lands may be allowed. This shall be effective from the date of the judgment. (4) The Committee shall also make enquiry, if it is so necessary, to find out whether classification of the lands recorded as Jalasaya has been changed by orders of the Tahasildar during operation of the order of status quo passed by this Court on 08.04.2005 in O.J.C. No. 6721/1999. In case it is found that the classification has been changed during continuance of the order of status quo, the same shall be treated as non est in the eye of law.15. For the aforesaid purpose, Cuttack city shall be construed to be the old Cuttack City comprising the areas shown in the satellite maps of the ORSAC of 1990 and 2006, which have been annexed to the Report of the R.D.C. dated 31.08.2007. It will be open to the State Govt. to adopt the directions given in respect of Cuttack City in the foregoing paragraph for other cities in the State."
20. Learned Counsel for the Applicant has also referred to the judgment of the Hon'ble Supreme Court passed in Civil Appeal No. 4787 of 2001; (Hinch Lal Tiwari Vs. Kamala Devi & Ors.), (2001) 6 SCC 496, decided on 25.07.2001 wherein the Hon'ble Supreme Court has observed as under:-
"It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is failing in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non- abadi sites. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2-1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass-root level if they were to become the nation's pride."
21. Reference has also been made to the judgment of the Hon'ble Supreme Court passed in Civil Appeal No. 5109 of 2019; (Jitendra Singh Vs. Ministry of Environment & Ors.), (2019) 20 SCC 581, decided on 25.11.2019. Para 23 of the judgment reads as under:-
"23. For the reasons stated above, we allow the appeal and set aside the impugned order passed by the NGT. The allotment of all water bodes (both ponds and canals), including Khasra Nos.552 and 490 to Respondent No.6, or any other similar third party in village Saini, tehsil Dadri, district Gautam Budh Nagar is held to be illegal and the same is hereby quashed. Since this Court has on 15.07.2019 already directed the parties to maintain status quo, Respondent Nos.1 to 5 shall restore, maintain and protect the subject- water bodies in village Saini. Respondents are further directed to remove all obstructions from the catchment area through which natural water accumulates in the village ponds, all within a period of three months."
22. Reference has also been made to (1996) 2 SCC 572; (Delhi Water Supply & Sewage Disposal Undertaking & Anr. Vs. State of Haryana), decided on 29.02.1996, wherein in para 10 of the judgment the Hon'ble Supreme Court has held as under:-
"10. So far as water supply from river Jamuna to Delhi is concerned, we order and direct that Delhi shall continue to get as much water for domestic use from Haryana through river Jamuna which can be consumed and filled in the two water reservoirs and treatment plants at Wazirabad and Hyderpur. Both the Wazirabad and Hyderpur reservoirs shall remain full to their capacity from the water supplied by Haryana through river Jamuna. We direct the State of Haryana through all its officers who are party to these proceedings and who have filed affidavits before us not to obstruct the supply of water to Delhi as directed by us at any time. This order of ours is not dependent on the MOU mentioned above or any other proceedings which may be initiated under any other law between the parties."
In this case, the Hon'ble Supreme Court has directed that so far as water supply from river Jamuna to Delhi is concerned, Delhi shall continue to get as much water for domestic use from Haryana through river Jamuna which can be consumed and filled in the two water reservoirs and treatment plants at Wazirabad and Hyderpur. In our opinion, the aforesaid judgment has no application to the facts of the present case.
23. The learned Counsel for the Applicant has next referred to (2011) 11 SCC 396; (Jagpal Singh & Ors. Vs. State of Punjab & Ors.), decided on 28.01.2011 which has been considered by the Hon'ble Supreme Court in the case of Jitendra Singh (Supra).
24. Reference has also been made to the judgment of the National Green Tribunal, Principal Bench, dated 18.11.2020 passed in Original Application No. 325 of 2015; (Lt. Col. Sarvadaman Singh Oberoi Vs. Union of India & Ors.), wherein the Tribunal issued the following directions in para 22 of the judgment which read as under:-
"Directions22. Accordingly, we dispose of this application with following directions:(i) All States/UTs may forthwith designate a nodal agency for restoration of water bodies, wherever no such agency has so far been so designated.(ii) Under oversight of the Chief Secretaries to the States/UTs, the designated nodal agency may a. Hold its meeting not later than 31.01.2021 to take stock of the situation and plan further steps, including directions to District authorities for further course of action upto Panchayat levels and to evolve further monitor mechanism as well as Grievance Redressal Mechanism (GRM).b. Submit periodical reports to the CPCB/Secretary Jal Shakti, Government of India. First such report may be furnished by 28.02.2021.(iii) The CMC for monitoring remediation of 351 polluted river stretches, headed by the Secretary, MoJS may monitor the steps for restoration of water bodies by all the States periodically, at least thrice in a year. First such monitoring may take place by 31.03.2021.(iv) The CMC may give its action reports to this Tribunal in OA 673/2018 and first such report may be furnished preferably by 30.04.2021 by e-mail."
In this case, the Tribunal directed all States/UTs to designate a nodal agency for restoration of water bodies, wherever no such agency has so far been so designated and monitor the steps for restoration of water bodies by all states periodically.
However, further directions were also issued by the Tribunal in M.A. No. 26 of 2019 filed in Original Application No. 325 of 2015; (Lt. Col. Sarvadaman Singh Oberoi Vs. Union of India).
25. The next case referred by the learned Counsel for the Applicant is the judgment of the Hon'ble Supreme Court passed in Civil Appeal No. 812 of 2002; (Vijay Sayal & Anr. Vs. State of Punjab & Ors.), decided on 22.05.2003. This judgment relates to selection/non-selection of candidates to the posts of Assistant District Transport Officer, advertised by the Punjab Subordinate Selection Board and has absolutely no application to the controversy involved in the present case.
26. Learned Counsel for the Applicant has next referred to (1995) 1 SCC 421; (Chandra Shashi Vs. Anil Kumar Verma) decided on 14.11.1994, which again has no application to the facts of the present case.
27. Likewise, the judgment of the Hon'ble Supreme Court in the case of Writ Petition (Crl.) No. 15 of 1994; (Dhananjay Sharma Vs. State of Haryana & Ors.), decided on 02.05.1995. This matter relates to a civil dispute in which case under Section 406/420 IPC was also got registered. This judgment also has absolutely no application to the facts of the present case.
28. Learned Counsel has next referred to the judgment of the Hon'ble Supreme Court in Jagpal Singh (Supra), which has already been considered by the Hon'ble Supreme Court in the case of Jitendra Singh (Supra).
29. The Respondents, on the other hand, have not disputed that a large part of the water body existing on Plot No. 1509, Khata No. 1375, which facts have already been noted by us herein above, but it is stated that those plots were converted by the State Government under Section 3A of the Orissa Government Land Settlement (Amendment and Validation) Act, 1975 as those lands had already been degraded and lost its characteristic of 'Jalasayas' and, therefore, constructions such as - Ray Project, Consumer Forum, Revenue Inspector Office, Anganwadi Centre, Gosaninuagaon Police Station, Temple, Khadya Jogan Bivag, have been made over the plots after de-reservation and classification of the same as 'Patita'. It is also stated that at present only 6.860 acres of Plot No. 1509, Khata No. 1375 is existing as a water body in Agula Bandha which has been preserved and encroachments have been removed therefrom.
30. Learned Counsel for the Respondents have further relied upon the judgment of the Division Bench of the Hon'ble High Court of Odisha in the case of Tapan Kumar Das (Supra) and it is submitted that the High Court had directed a Committee to be constituted under the Chairmanship of Revenue Divisional Commissioner (C.D.) Cuttack, to deal with the issues relating to protection, preservation and conservation of water bodies in the city of Cuttack and take decisions accordingly and it was also directed that applications for change of classification/kisam of land from 'Jalasaya' to 'Homestead' shall be processed through the Tehsildar, Sadar, Cuttack to the Collector for appropriate orders. The decision of the Collector shall be placed before the Committee and if the Committee is of the opinion that the lands which have lost their characteristic as 'Jalasaya' and are not 'Jalasaya' or swampy lands but have been recorded as Jalasaya, change of classification/kisam of such lands may be allowed. The High Court further directed that it will be open to the State Government to adopt the directions given in respect of Cuttack city for other cities in the State.
31. On behalf of the Respondents reliance has also been placed on the observations made in para 17 of the judgment of the Hon'ble Supreme Court in the case of Jitendra Singh (Supra). Para 17 of the judgment reads as under:-
"17. It is uncontroverted, in the present case, that the Government Order dated 03.06.2016 was a consequence of the afore-cited judgment in Jagpal Singh. Curiously, however, Clause 5 of the Government Order carves an exception of 'huge projects/works' (albeit in extraordinary circumstances) to Jagpal Singh's strict principle of non- alienation of common water bodies. It is clear that such ground of exception does not fall under the limited class of grants to 'landless labourers or members of the Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land". Such industrial activities without any rationale classification, unlike the narrow class exempted, do not serve a social public purpose or benefit the local people, and thus will be hit by the inalienability bar."
32. Reliance has also been placed on the observations made in para 22 of the judgment of the Hon'ble Supreme Court in the case of Jagpal Singh (Supra) wherein the Hon'ble Supreme Court has observed that regularization of illegal possession should only be permitted in exceptional cases, for example where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land. Para 22 of the judgment reads as under:-
"22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
33. We have considered the observations of the Hon'ble Supreme Court in Jagpal Singh (Supra) read with the directions given by the Division Bench of the High Court of Odisha in Tapan Kumar Das (Supra), which leave no doubt that where the Jalasaya has been degraded it can be de-classified as 'Jalasaya' and further that if at all there is illegal possession regularization of such illegal possession should only be permitted in those cases as mentioned in para 22 of the Jagpal Singh (Supra) including public utility on the land.
34. There is no dispute in the present case that constructions have been made by the Government itself after de-classifying the portions of Agula Bandha which they claim have lost its characteristic as 'Jalasaya'. Apart from 6.860 acres of land which is stated to be still existing as Agula Bandha water body, it has not been disclosed by the Respondents as to how much of the rest of the water body had lost its characteristics as a 'Jalasaya' and become degraded.
35. We cannot lose sight of the fact that degradation of water bodies cannot be allowed by the State by turning a Nelson's eye to deliberate encroachments upon the water body by unscrupulous persons and thereafter the Government taking a stand that the Jalasaya in question has lost its character as such.
36. We cannot also lose sight of the fact that water is a basic source of all life on earth. If there is no water, all life forms on earth would become extinct. Water bodies even natural springs, serve the purpose of collecting rainwater and runoff water and thereby help to recharge the groundwater through natural aquifers. Water bodies also help to sustain aquamarine life. Water bodies serve to provide drinking and bathing water to humans as well as animals and, therefore, water bodies cannot be allowed to be degraded or to lose their character as 'Jalasaya' and it is the bounden duty of the State to protect the water bodies thereby ensuring protection of the right to life as enshrined in Article 21 of the Constitution of India.
37. At the same time, in the facts of the present case, we cannot ignore the fact that large parts of Agula Bandha water body have been completely destroyed leaving only 6.860 acres which is still a water body. Government buildings have been constructed on the degraded parts of the water body and while the Government may take the plea that these buildings are public utility buildings and, therefore, even if such buildings are illegal, the same may be regularized in terms of para 22 of the judgment of the Hon'ble Supreme Court in the case of Jagpal Singh (Supra) but we also find that a Maa Mangala Temple has been constructed over Plot No. 1509/2918 over an area of 0.012 acres. The construction of a temple, by whichever name called, is not a public utility building and cannot be permitted on a specious plea that the Jalasaya has lost its characteristics as 'Jalasaya'.
38. In Original Application 22/2022/EZ, the National Green Tribunal, Principal Bench had directed demolition of Sri Sri Panchamukhi Hanuman Temple Trust, Ratilo, which was constructed within 35 meters from the embankments of River Mahanadi vide its order dated 15.12.2020. Aggrieved party approached the Hon'ble Supreme Court in Civil Appeal Nos. 4598- 4599 of 2021 and the said Civil Appeals were also dismissed by the Hon'ble Supreme Court by its order dated 10.08.2021.
39. In the present case also there can be absolutely no justification for construction of Maa Mangala Temple over Jalasaya land on the plea that the said area of land has lost its characteristics as 'Jalasaya'. We, therefore, direct the Respondent No.14, Collector-cum-District Magistrate, Ganjam District, to remove the said temple from Plot No. 1509/2918 over an area 0.012 acres within one month and restore the said land as 'Jalasaya' and file affidavit of compliance by 08.09.2022.
40. The Applicant in his Original Application has given the total land area of Plot No. 1509, Khata No. 1375 to be 18.480 acres and the various plots recorded in the Record of Rights particulars of which are as under:- Plot No. 438, measuring an area of 0.860 decimal (recorded as Jasalaya-I), Plot No. 1509 (6.8600 decimal recorded as Jasalaya-I), Plot No. 1504/1788 (0.050 decimal recorded as Jalasaya-I), Plot No. 1507/1791 (0.080 decimal recorded as Jalasaya-I), Plot No. 1506/1790 (0.060 decimal recorded as Jalasaya-I), Plot No. 1505/1789 (0.050 decimal recorded as Jalasaya-I), Plot No. 1502/1786 (0.060 decimal recorded as Jalasaya-I), D1-438 (0.3860 decimal recorded as Jalasaya-I), D1-437 (0.1480 decimal recorded as AGULA BANDHA ADI), 1510 (0.7190 decimal recorded as AGULA BANDHA ADI), highly required for the preservation/protection of the common pond/common water body.
41. According to the State Respondents an area of 6.860 acres is still maintained as common pond/common water body in Plot No. 1509, Khata No. 1375. According to the State Respondents, the area of the Jalasaya which has lost its characteristics as such is measuring about 11.500 acres of which 3.600 acres was de- reserved in Khata No. 1375, Plot No. 1509 vide Collector's order dated 27.031993 and vide another order dated 19.08.1999, area admeasuring 1 acre out of the 7.900 acres of Khata no. 1375, Plot No. 1509 has been de-reserved in exercise of powers conferred in Section 3A of the Orissa Government Land Settlement (Amendment and Validation) Act, 1975. This means that out of a total area of about 18.480 acres of Jalasaya, 11.500 acres of area has lost its characteristic as such and 6.860 acres is still maintained as a common pond/common water body at Agula Bandha. This area of 11.500 acres of land which has been allowed by the State Government to degrade and lose its character as 'Jalasaya' needs to be restored by the Government. Since Government buildings have been constructed on this area of land, we direct the State Respondents to demarcate land of an equivalent size of 11.500 acres including 0.012 acres of the land which will become available after demolition of Maa Mangala Temple, as far as possible close to the Agula Bandha water body and if not possible, in some other area nearby and re-create a water body of the same size and depth as Agula Bandha.
42. We may remind the State Respondents that this is not an impossible task considering that the Sukhna Lake in Chandigarh, having an area of 3 square kilometers with an overall depth of 8 feet (2.4 meters) maximum depth 16 feet (4.9 meters) was created as an artificial water body and, therefore, what can be done by the Government of Punjab to create a water body for its citizens, can also be replicated by the State of Odisha in the District of Ganjam, Odisha over the remaining area of 11.500 acres including 0.012 acres of the land which will become available after demolition of Maa Mangala Temple.
43. There are also umpteen examples of artificial water bodies created by various State Governments to help in providing drinking water as well as water for agriculture for the rural poor. The above example of Sukhna Lake in Chandigarh is just an illustration.
44. A direction is also issued to the Chief Secretary, Govt. of Odisha, in this regard to ensure compliance of our directions given herein above. The State Respondents shall file a Status Report within three months i.e., by 03.11.2022.
45. With the above directions, the Original Application No. 106/2021/EZ is disposed of.
46. There shall be no order as to costs.
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B. AMIT STHALEKAR, JM
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SAIBAL DASGUPTA, EM
Kolkata
August 3rd, 2022
Original Application No.106/2021/EZ AK
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