NGT in Rasulpur Dana Welfare Society vs. WB Pollution Control Board & Ors. [01.08.2022]

BEFORE THE NATIONAL GREEN TRIBUNAL 

EASTERN ZONE BENCH, KOLKATA 

ORIGINAL APPLICATION No.108/2021/EZ 

IN THE MATTER OF: 

Rasulpur Dana Welfare Society 

Through its President 

Having its registered office at 

Village-Baidyadanga, P.O.-Rasulpur, 

District-Purba Bardhaman-713151                                                                                          ....Applicant(s) 

Versus 

1. West Bengal Pollution Control Board Through the Chairman, Paribesh Bhawan, 10A, Block-LA, Sector-III, Bidhannagar, Kolkata-700106 

2. The Panchayat Pradhan Nimo-I, Memari-1, Purba Bardhwan-713151 

3. District Magistrate, Purba Bhardhaman-713101 

4. The Central Pollution Control Board Through the Chairman, Paribesh Bhawan, Maharshi Valmiki Marg, East Arjun Nagar, Vishwas Nagar, Shahdara, New Delhi-110032 

5. The Block Land and Land Reforms officer, Memari-1, Purba Bhardhaman-713146 

6. District Land and Land Reforms Officer, Rajbari, Purba Bhardhaman-713101 1 

7. Parbati Ghosh, Daughter of Nitya Gopal Ghosh Village Baidyadanga, Rasulpur, Burdawan-713151 

8. Haru Ghosh, Village Baidyadanga, Rasulpur, Burdawan-713151 

9. Anukul Biswas, Village Baidyadanga, P.O. Rasulpur, P.S Memari, District-Burdawan-713151 

....Respondent(s) 

COUNSEL FOR APPLICANT: Ms. Paushali Banerjee, Advocate 

COUNSEL FOR RESPONDENTS: Mr. Dipanjan Ghosh, Advocate for R-1, 

Mr. Sibojyoti Chakraborty, Advocate for R-3, 5 & 6, 

Mr. Rajib Ray, Advocate for R-4, 

Mr. Somnath Ghosh, Advocate a/w Ms. Tapti Sarkar, Advocate for R-7 & 8, 

Mr. Sandip Ghosh, Advocate a/w Mr. Partha Sarkar, Advocate & 

Ms. Mousaumi Chatterjee, Advocate for R-9 

JUDGMENT

PRESENT:

HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) 

HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER)

__________________________________________________________________ 

Reserved On: - 27th July, 2022 

Pronounced On: - 1st August, 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 alleging that Respondent Nos. 7, 8 & 9 are destroying the two ponds in the Dag No. 463 and Dag No. 25, J.L. No. 135, Mouza- Baidyadanga under Memari-I Block, Rasulpur in Purba Bardhaman and are converting the two ponds into garbage dumps. It is further alleged that unauthorized and illegal constructions are being raised by them in collusion with Respondent No. 2, the Panchayat Pradhan Nimo-1, Memari-I, Purba Bardhaman, destroying the two ponds.

3. Notices were issued to the Respondents and respondents have filed their affidavits.

4. A Report dated 10.12.2021 has been filed by the Block Land and Land Reforms Officer, Purba Bardhaman, Memari-I, Memari, Purba Bardhaman along with the affidavit dated 14.12.2021 of the Respondent No.6, Additional District Magistrate & District Land and Land Reforms Officer, Purba Bardhaman. This letter which is addressed to the Additional District Magistrate and District Land and Land Reforms Officer, Purba Bardhaman, confirms that eight persons had tried to fill up the Plot No. 463 of Mouza-Baidyadanga, J.L. No. 135 and FIR's have been lodged against them. It was also noted in the report that on enquiry of Plot No. 25 of Mouza- Baidyadanga, J. L. No. 135, it has been found that one Anukul Biswas was attempting to fill the western side of the pond and notice had been issued to him earlier on 04.07.2016 to stop such work. It is also stated that there is a Kachcha Road on the western side of the pond and the remaining area has been filled with garbage and bushes. This confirms the allegations made by the Applicant. However, the report of the Block Land and Land Reforms Officer, Purba Bardhaman, was scanty in information in as far as the total area of the pond; how much of the area has been filled up with garbage and bushes and how much area has been utilized for construction of Kachcha Road is not stated. The area encroached is not clearly mentioned. Since, this report did not disclose the complete facts and also whether penalty/fine had been imposed on the encroachers over the waterbody and whether encroachers have been removed, the Tribunal directed the District Magistrate, Purba Bardhaman to file a fresh affidavit.

5. In response, affidavit dated 24.05.2022 has been filed by Respondent No.5, District Magistrate, Purba Bardhaman, stating therein that in pursuance of the letter of Block Land & Land Reforms Officer, Memari-I, an enquiry was conducted by the Revenue Inspector and as per the enquiry report a notice was issued to Anukul Biswas (Respondent No.9) to stop filling the pond in question. Another enquiry was conducted on 31.03.2022 and enquiry report dated 01.04.2022 has been submitted, from which it is seen that the total area of the Plot No.25 is 0.44 acres; a waterbody exists on 0.36 acres and 0.06 acres of the area at the eastern side of the pond is filled up with earth and is used as 'Pukur Par' and road, and 0.02 acres of area on the western side is filled up and is being used as a Kachha road. It is stated that the recorded Raiyat namely Amit Kumar Ganguly, Ashim Kumar Ganguly, Ashish Kumar Ganguly and Asit Kumar Ganguly were issued notices under Section 4C (5) of the West Bengal Land Reforms Act, 1955 dated 17.05.2022, for restoration of the waterbody but the Revenue Inspector was informed that the recorded raiyats had already sold the land to others namely Sujit Ghosh, Pankaj Gayan and Pratima Biswas (since deceased) who were issued notices under Section 4C (5) of the West Bengal Land Reforms Act, 1955 dated 18.05.2022, for restoration of the waterbody within 2 days. Another enquiry was conducted by the Revenue Inspector, Nimo-I on 19.05.2022 and as informed by the Additional District Magistrate & District Land & Land Reforms Officer, Purba Bardhaman vide his letter dated 21.05.2022, the total area of Plot No.463 is 0.61 acres out of which 0.21 acres has been filled up and it is found that there were six pucca constructions. It is stated that: -

(a) The recorded raiyats of Khatian No.539 of the said plot namely Bani Chandra W/o Sujit Chandra has a pucca house over 1,000 sq. ft. area.

(b) The recorded raiyat of Khatian No. 756, Uttam Das Gupta S/o Dijendralal Dasgupta has one pucca house over 858 sq. ft. area.

(c) A two storied building was found constructed over 2659 sq. ft. area made by one Monojit Ghosh but he is not a recorded raiyat.

(d) One Gouranga Ghosh, Biplab Bairaggya and Dibakar Ghosh S/o Haru Ghosh who were also not recorded raiyats had made pucca houses over the area of 1365 sq. ft., 1159 sq. ft. and 858 sq. ft. respectively.

(e) In the North-Eastern side there is also a road encroachment over 342 sq. ft. area and garbage was found covering an area of 858 sq. ft. and the remaining 0.40 acre area was found to be a waterbody filled with water hyacinths.

6. It is also stated by the District Magistrate that proceedings have been started against some persons for allegedly filling up the waterbody known as 'Shib Pukur' vide Memari P.S. F.I.R. No.511/2016 dated 13.08.2016 under the provisions of Section 4D of the West Bengal Land Reforms Act, 1955 and in the said case Charge sheet has already been submitted and the case is pending for adjudication in the court of Judicial Magistrate, 2nd Court, Bardhaman. It is further stated that notices were issued to:

1) Sri Dibakar Ghosh S/o Haradhan Ghosh;

2) Sri Uttam Dasgupta;

3) Smt. Bani Ghosh;

4) Sri Parbati Ghosh S/o Nityagopal Ghosh;

5) Sri Ramesh Ghosh;

6) Sri Samaresh Ghosh;

7) Sri Gouranga Ghosh and

8) Smt. Shyamali Boiragi W/o Biplab Boiragi They were directed to restore the waterbody of plot no.463, Mouza-Baidyadanga, J.L. No.135 within 7 days.

7. Along with the affidavit of the District Magistrate, Purba Bardhaman, a letter dated 23.05.2022 of the Block Land & Land Reforms Officer, Memari-I has been filed as Annexure-R-1, wherein it is stated that in the proceedings under Section 4C (5) of the West Bengal Land Reforms Act, 1955, Anukul Biswas, Pankaj Gayen and one Sujit Ghosh appeared before the said authority in the proceedings and submitted a deposition they will restore the actual character of the land within 7 days. Accordingly, time of 7 days was granted to them in the proceedings under Section 4C (5) of the West Bengal Land Reforms Act, 1955.

8. Thus, from the documents on record, we find that the admitted position that emerges is that the waterbody recorded in Dag No.463 and Dag No.25, J.L. No.135, Mouza Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman have been illegally occupied by the aforesaid persons.

9. The Respondent No.7, Parbati Ghosh, in her affidavit dated 05.01.2022 has stated that although the classification of the land of the two ponds is mentioned as 'Pukur' in the Land Revenue Record, the ponds are unusable for fish farming or for aquatic animals but that the ponds are not breeding ground of mosquitoes and flies.

10. The Respondent No.8, has also filed a counter-affidavit dated 25.04.2022 sworn by one Dibakar Ghosh also known as Har Ghosh S/o Taraknath Ghosh stating therein that he is neither the owner nor in possession of the land in question and he has no connection with regard to the Dag No.463 and Dag No.25, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman. Though in paragraph 6 of his affidavit he admits that there are ponds in Dag No.463 and Dag No.25, J.L. No.135, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman, though he has denied that the said ponds have been filled with garbage.

11. It is however, surprising that in paragraph-4, II of his affidavit the deponent, Respondent No.8, has stated that since his birth he used to reside at the addresses mentioned in the cause title permanently which is other than the said plot of land Dag No.463, Mouza-Baidyadanga, J.L. No.135, Khatian No.148, Memari.

12. The Respondent No.9 in his affidavit dated 15.07.2022 has stated that he is a co-owner of the property, J.L. No.135, Plot No.25, total area of land 44 Satak, Nature of land is Pukur and this land had been purchased by his late wife Pratima Biswas. It is also stated that in the C.S. Record of Rights, Dag/Plot No.25 is recorded as 'Sona' although in the Land Revenue Records of Rights the same land is recorded as 'Pukur'.

13. From the above, analysis and scrutiny of records, we find that there is absolutely no dispute that the plots in question are recorded as 'Pukur' (waterbody) in the Land Revenue Records which is borne out from the documents filed as Annexure-A to the original application as well as the averments of Respondent Nos.7, 8 & 9, and Plot No.463 is also recorded as 'Pukur'. The Report of the Block Land & Land Reforms Officer clearly establishes that the Respondent No.9 had attempted to fill up the Western side of the pond and he was issued a notice on 04.07.2016 to stop the same. It is also established that part of the Plot Nos.463 and 25 have been converted to a Kachcha road on the Western side and the remaining area has been filled up with garbage and bushes.

14. One more affidavit dated 26.07.2022 has been filed by the District Magistrate & Collector, District Purba Bardhaman, wherein it is stated that the Block Land & Land Reforms Officer Memari-I vide his letter dated 21.07.2022 informed the District Magistrate, Purba Bardhaman that as per the enquiry report dated 27.06.2022 submitted by Revenue Inspector, Nimo-I, with respect to Plot No.25, Mouza-Baidyadanga, J.L. No.135, that presently the Plot No.25, has been restored to its actual classification i.e. 'Pukur'. It is also stated that with respect to the Plot No.463, Mouza-Baidyadanga, J.L. No.135, the Block Land & Land Reforms Officer, Memari-I, Bardhaman had vide letter dated 21.07.2022 inter alia informed the District Magistrate, Purba Bardhaman that the total area of Plot No.463 is 0.61 acres, out of which 0.21 acres has been filled up and six pucca constructions were found to have been made thereon and in the North-Eastern side there is also an encroachment of over 342 sq. ft. area and some garbage found over 858 sq. ft. area and the rest 0.40 acres area is filled with water but the same is covered with water hyacinth. It is further stated that from the previous records as available in the office it appears that after getting complaint of illegal filling up of waterbody an enquiry was conducted by the Revenue Inspector on 12.08.2016, over the said plot of land and as per report of the Revenue Inspector a notice for restoration of waterbody was served upon eight persons vide Memo No.752, dated 17.08.2016, and thereafter, as per provisions of Section 4D of the West Bengal Land Reforms Act, 1955 First Information Reports (F.I.Rs.) have been lodged with the Officer-in-Charge, Memari Police Station vide office memo No.808-814 dated 30.08.2016 and presently the said case is pending adjudication in the Trial Court.

15. The Hon'ble Supreme Court in (2011) 11 SCC 396, Jagpal Singh & Ors. vs. State of Punjab & Ors., in Paragraph 16, 17, 18 & 22 has held as under: -

"16. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005 (4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.

17. In this connection we wish to say that our ancestors were not fools. They knew that in certain years there may be droughts or water shortages for some other reason, and water was also required for cattle to drink and bathe in etc. Hence they built a pond attached to every village, a tank attached to every temple, etc. These were their traditional rain water harvesting methods, which served them for thousands of years.

18. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.

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."

16. In (2019) 20 SCC 581, Jitender Singh vs. Ministry of Environment & Ors., the Hon'ble Supreme Court in Paragraph 23 has given the following directions: -

 

"23. For the reasons stated above, we allow the appeal and set aside the impugned order passed by the NGT. The allotment of all waterbodies (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-waterbodies 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."

17. In (2001) 6 SCC 496, Hinch Lal Tiwari vs. Kamala Devi & Ors., the Hon'ble Supreme Court held 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."

18. The Hon'ble Supreme Court in (2018) 13 SCC 390, National Institute of Medical Science University Rajasthan & Anr. vs. State of Rajasthan & Ors., has approved the view taken by the Hon'ble Supreme Court in Jagpal Singh (supra). Paragraphs 41, 42 & 43 of the judgment which read as under: -

"41. This view was followed and endorsed in Jagpal Singh in the following words:

"In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs. 100 crores.

In Friends Colony Development Committee v. State of Orissa 1 this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion this decision will apply with even greater force in cases of encroachment of village common land. Ordinarily, compounding in such cases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is (2004) 8 SCC 733 actually being used for a public purpose of the village e.g. running a school for the villagers, or a dispensary for them.

In many States government orders have been issued by the State Government permitting allotment of Gram Sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such Government orders are illegal, and should be ignored."

42. Keeping in mind the view expressed by this Court in these and other decisions, we also direct the demolition of the unauthorized construction by or on behalf of NIMS on Khasra No. 526. The demolition should be carried out by the Jaipur Development Authority with the assistance of the State Government and the Collector of Jaipur District on or before 30th November, 2017. The Director General of Police of Rajasthan is directed to render all necessary assistance in the process of demolition. The cost of demolition and removal of rubble etc. will be at the expense of NIMS. Any pending application made by NIMS for compounding the unauthorized construction or regularizing it stands superseded in view of our decision.

43. We are giving these peremptory time bound directions in view of the fact that the learned Single Judge felt it appropriate, while dismissing the writ petitions filed by NIMS, to grant interim relief limited to only 7 days. More importantly, we are of opinion that the possibility of water being now made available to Jaipur City in due course of time takes far greater precedence over the interests of NIMS and those associated with it."

19. For reasons aforesaid, we dispose of the original application and direct the District Magistrate, Purba Bardhaman to take all steps for removal of encroachments from Plot No.463 and Plot No.25, J.L. No.135, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman within one month and restore the area of 0.61 acres of the Plot No.463 and area 0.44 acres of the Plot No.25, J.L. No.135, under Memari-I Block, Rasulpur, Purba Bardhaman to its original form as waterbody and take steps for removal of water hyacinths and file affidavit of compliance within three months i.e. by 31st October, 2022.

20. With the aforesaid directions, the Original Application No.108/2021/EZ is disposed of.

21. There shall be no order as to costs.

.............................. B. AMIT STHALEKAR, JM                 .............................. SAIBAL DASGUPTA, EM 

Kolkata 

August 01, 2022 

Original Application No.108/2021/EZ

Sabita Chowdhury vs. The Raghunathut Municipal Corporation & Ors.

Calcutta High Court

W.P. No.553 (W) of 2019 (22/01/09)

An order of the Municipality rejecting renewal of a certificate of enlistment is under challenge in the present writ petition. 

Learned advocate for the petitioner submits that, this is the third writ petition for the purpose of granting a certificate of enlistment. He refers to the order dated September 5, 2018 passed in W.P. No.28999 (W) of 2017 (Smt. Sabita Choudhury v. The Raghunathpur Municipal Corporation & Ors.) and submits that, the Municipality despite such specific directions contained therein, passed the impugned order. He submits that, the Municipality be directed to issue the certificate of enlistment. 

State and the Municipality are represented. Learned advocate appearing for the Municipality submits that, the petitioner is in unauthorised occupation of land belonging to the State. Therefore, the Municipality cannot renew the certificate of enlistment. He relies upon (2011) 11 SCC 396 (Jagpal Singh v. State of Punjab & Ors.) in support of his contention. 

Learned advocate appearing for the petitioner submits that, his client is not in unauthorised occupation of the property concerned. He refers to the fact that, the Municipality demanded property tax from the petitioner and that, the petitioner paid the same. 

It is not within the jurisdiction of a Municipality to decide the title of an applicant for grant of certificate of enlistment. The provisions of the West Bengal Municipal Act, 1993 requires the Municipal authority to consider an application for grant of certificate of enlistment only on the parameters as to whether the applicant is intending to carry on business or is carrying on business or not. In the present case, the petitioner seeks the certificate of enlistment in order to carry on business. Consideration of title is not material for the purpose of deciding the request of the petitioner. 

There subsists an order dated September 5, 2018 requiring the Municipal authority to dispose of the application for grant of certificate of enlistment on the parameters noted above. The Municipality has rejected the application by the impugned order on the ground that, the petitioner has no title to the land. The ground for rejection is without any basis. It is not within the jurisdiction of the Municipality to decide title. The impugned order dated December 28, 2018 is quashed. The Municipality will proceed to issue the certificate of enlistment to the petitioner within four weeks from date. Till such time the certificate of enlistment is not issued, the Municipality will not take any coercive measures against the petitioner for absence of a certificate of enlistment. It is clarified that, all directions contained in the order dated September 5, 2018 passed in W.P. No.2899 (W) of 2017 will remain. This Court has not decided on the title of the petitioner in respect of the land concerned. 

Jagpal Singh & Ors. (supra) consider a case of protection of common rights of the villagers in respect of common lands. In such context, it issued certain directions to the State Government to prepare a scheme for eviction of illegal/unauthorised occupants from such land. In the present case, there subsists a direction upon the Block Land & Land Reforms Officer requiring him to take appropriate steps, if he is so entitled, in law. Such direction appears from the order dated September 5, 2018 W.P. No.553 (W) of 2019 is disposed of. 

There shall be no order as to costs. 

Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities. 

(Debangsu Basak, J.) 

Source : https://indiankanoon.org/doc/10880518/

Sandhya Barik & Ors. vs. The State of West Bengal & Ors. [18.01.2013]

Case Summary:

This case has been filed by way of a Public Interest Litigation (PIL) praying that the opposite party restrain from obstructing a public canal from draining out the refuses and rainwater in the locality and direct them to stop construction over the public canal in question. The said canal has been entered in the records of the Land Reforms Department and in the 'Record of Rights' as a  canal for public use for drawing out water in the rainy season connected to the river at Diamond Harbour. 

Reference was made to various judgments of the Supreme Court on matters like the doctrine of public trust, encroachments and illegal constructions, as well as the Jagpal Singh judgement.

The Hon'ble Court held that no right can be created by raising illegal construction over such property of public use like canal. There is a bounden duty of the Panchayat and other authorities to prohibit such construction and such property cannot be alienated or permitted to be destroyed in any manner. No construction can be permitted over such canal.

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In the High Court at Calcutta

Constitutional Writ Jurisdiction

Appellate Side

Present :

The Hon'ble Justice Arun Mishra, Chief Justice

The Hon'ble Justice Joymalya Bagchi

W.P. 22619 (W) of 2012

Sandhya Barik & ors.

vs.

The State of West Bengal & Ors.

For the Petitioner : Mr. A.B. Chatterjee
                              Mr. Balai Lal Sahoo

For the State : Mr. Shyamal Sanyal

For the Respondent no.4: Mr. Sudip Ghosh
                                         Mr. Gazi Faruque Hossain

Heard on : 18.01.2013

Judgment on : 18.01.2013

Arun Mishra, C.J. : 

The petition has been filed by way of Public Interest Litigation praying for relief to remove construction over the canal situated at Mouza Amtala, Khatian No. 494, J.L. No.73, Plot No.694 within Police Station Bishnupur in the District of South 24-Parganas. Appropriate order or direction requiring the respondents forbearing from obstructing the public canal from draining out the refuses and rainwater in the locality and direct the respondents to stop construction over the public canal in question by the respondent.

It is averred in the petition that the canal is used by general public at large for draining out the wastage water as well as water in the rainy season. There is entry of the canal in the records of the Land Reforms Department. The marked portion of the said Mouza regarding canal in the map has been filed as annexure 'P1' to the petition. The Record of Rights also records the 2 same as canal for public use for draining out water and the same is connected with river Diamond Harbour. Record of Rights is annexed as annexure 'P2' to the petition. There is big water pipe under the land which carries drinking water and with the said water pipe there is a valve which has been installed over the said canal for draining out the water which are coming out from the said valve and water of the canal is used not only by the petitioner but also by the people at large of the locality. The canal is still in existence which is apparent from the photographs taken out on 23rd September, 2012 and 3rd October, 2012. The private respondent has erected pillars and has taken steps for construction of a house over the canal. The petitioners approached the local Panchayat authorities as well as police authorities but no action has yet been taken. An application under section 144 (2) of the Code of Criminal Procedure was also filed before the 2nd Executive Magistrate, Alipore, who directed the police authority to submit a report on 21st August, 2012 and to see that no breach of peace and tranquility occurs in the area. The

documents in this regard have been placed on record. Police submitted a report on 14th September, 2012. It has been submitted that the respondent No.14 without obtaining any permission from the competent authority trying to make illegal construction over the suit land, that is water canal. As needful has not been done the petition has been preferred in this Court.

It is submitted by the private respondent that though he is covering part of the canal,however, he claimed plea of negative equality, that large number of similar construction over the canal have been made by AXIS Bank, HDFC Bank, Indusind Bank, Union Bank, Kotak Mahindra Bank, Reliance Bank, ICICI Bank and also Government office, namely, Block Krishi Adhikarik Building. There is also foreign liquor shop which was sanctioned by the department of excise upon holding enquiry. Besides various residential multistoried buildings are there as like the construction of the respondent No.14. Gram Panchayat has sanctioned plan for construction which is being made. Existence of the canal has not been denied in the Return. The dispute is a private dispute. The petitioner No.1 wants to grab the property and hence, has filed the petition.

We have heard the learned counsel for the parties. It is not disputed by any of the learned counsel for the respective parties that the canal is in existence as recorded in the Record of Rights and documents, which are annexed as annexures 'P1' and 'P2' to the petition. The case of the respondent No.14 is that Gram Panchayat has granted permission. On being specifically told to point out where the permission of the Gram Panchayat in respect of the coverage of the canal.

The learned counsel appearing on behalf of the respondent No.14 has stated before us that it is not possible to find out from the sanctioned plan that any permission has been granted to cover the canal. Whatever that may be, canal is in existence and it is for the public use, the same is held by the Panchayat in trust. Nobody can be permitted to raise construction over the said property.

The Courts in India, considering Article 48, 48A, 51A(g) of the Constitution of India have issued directions from time to time with respect to natural resources, process of distribution to private persons, doctrine of public trust was evolved as part of Indian Jurisprudence, polluter- pay- principle was developed in M.C.Mehta V/s Kamal Nath (1997(1) SCC 388) and has been followed in Jamshed Hormusji Wadia V/s Board of Trustee (2002(3) SCC 214). The Apex court in the case of Centre for Public Interest Litigation (supra) referred to the decision in Fomento Resorts and Hotels Limited v. Minguel Martins (2009) 3 SCC 571 and has laid down that the the public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It has also been observed that public has special interest in public land water etc. It is the duty of the State not to impair such resources. The Apex Court emphasized that there is obligation to use such resources in such a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources. The Apex Court in Fomento Resorts and Hotels Limited v. Minguel Martins (supra) has laid down thus:-

"53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.

54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.

55. The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources."

In M.C.Mehta Vs. Kamal Nath & Ors, (1997) 1 SCC 388,the Apex Court has laid down that the river is a public property. It cannot be given for private use. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. The public trust doctrine is a part of law at present. Even in absence of legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. Large area of the bank of River Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. The area being ecologically fragile and full ofscenic beauty should not have been permitted to be converted into private ownership and for commercial gains. The Apex Court held that the Government of Himachal Pradesh has committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. The lease transactions are in patent breach of the trust held by the State Government. Therefore, the Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The Apex Court has laid down thus:-

"25.The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature. They should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit then- use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority.

Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses.

33.It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observations of the Court in Mono Lake case to the effect that the protection of ecological values is among the purposes of public trust, may give rise to an argument that the ecology and the environment protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum co. v. Mississippi 108 S.C.C. 791, the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying no navigable tidal areas. The majority judgment adopted ecological concepts to determine which land can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all eco-systems operating in our natural resources.

34.Our legal system-based on English Common Law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

35.We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in-violate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislature the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. The esthetic use and the pres time glory of the natural resources, the environment and the eco-systems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary in good faith, for the public good and in public interest to encroach upon the said resources.

36.Coming to the facts of the present case, large area of the bank of river Beas which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. We have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. Both the lease - transactions are in patent breach of the trust held by the State Government. The second lease granted in the year 1994 was virtually of the land which is a part of river-bed. Even the board in its report has recommended delousing of the said area."

(emphasis added by us)

In Intellectuals Forum, Tirupathi Vs. State of A.P. & Ors.(AIR 2006 SC 1352), the Apex Court has laid down that the government is bound to protect historical tanks qua concept of 'sustainable development' and 'public trust doctrine'. Destruction of local ecological resources is not permissible. Property subject to trust must not only be used for a public purpose, but it must be held available for use by general public. Property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources. Principle of 'Inter-Generational Equity' also to be applied for protecting natural resources has also been taken into consideration by their Lordships of the Apex Court. The Apex Court has held that the "tank is a communal property" and State authorities are "trustees" to hold and manage such properties for benefits of community. State cannot be allowed to commit any act or omission which will infringe right of community and alienate property to any other person or body. Fact that the party has spent money on developing land is immaterial. The Apex Court has laid down thus:-

"67. The responsibility of the state to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "state responsibility" for pollution emanating within one's own territories [Corfu Channel Case, ICJ Reports (1949) 4]. This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant Clause of this Declaration in the present context is Paragraph 2, which states: The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area.

Sustainable Development

68. The respondents, however, have taken the plea that the actions taken by the Government were in pursuance of urgent needs of development. The debate between 7

the developmental and economic needs and that of the environment is an enduring one, since if environment is destroyed for any purpose without a compelling developmental cause, it will most probably run foul of the executive and judicial safeguards. However, this Court has often faced situations where the needs of environmental protection have been pitched against the demands of economic development. In response to this difficulty, policy makers and judicial bodies across the world have produced the concept of "sustainable development". This concept, as defined in the 1987 report of the World Commission on Environment and Development (Brundtland Report) defines it as "Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs". Returning to the Stockholm Convention, a support of such a notion can be found in Paragraph 13, which states:

In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and coordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve environment for the benefit of their population.

69. Subsequently the Rio Declaration on Environment and Development, passed during the Earth Summit at 1992, to which also India is a party, adopts the notion of sustainable development. Principle 4 of the declaration states: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

73. In light of the above discussions, it seems fit to hold that merely asserting an intention for development will not be enough to sanction the destruction of local ecological resources. What this Court should follow is a principle of sustainable development and find a balance between the developmental needs which the respondents assert, and the environmental degradation, that the appellants allege.

Public Trust Doctrine

74. Another legal doctrine that is relevant to this matter is the Doctrine of Public Trust. This doctrine, though in existence from Roman times, was enunciated in its modern form by the US Supreme Court in Illinois Central Railroad Company v. People of the State of Illinois (1892) 146 US 537 where the Court held: The bed or soil of navigable waters is held by the people of the State in their character as sovereign, in trust for public uses for which they are adapted.

[...] the state holds the title to the bed of navigable waters upon a public trust, and no alienation or disposition of such property by the State, which does not recognize and is not in execution of this trust is permissible.

What this doctrine says therefore is that natural resources, which includes lakes, are held by the State as a "trustee" of the public, and can be disposed of only in a manner that is consistent with the nature of such a trust. Though this doctrine existed in the Roman and English Law, it related to specific types of resources. The US Courts have expanded and given the doctrine its contemporary shape whereby it encompasses the entire spectrum of the environment.

75.The doctrine, in its present form, was incorporated as a part of Indian law by this Court in the case of M.C. Mehta v. Kamal Nath (supra) and also in M.I. Builders v. :Radhey Shyam Sahu [1999]3SCR1066 . In M.C. Mehta, Kuldip Singh J., writing for the majority held:

[our legal system] includes the public trust doctrine as part of its jurisprudence. The state is the trustee of all natural resources which are by nature meant for public use and enjoyment. [...] The state as a trustee is under the legal duty to protect the natural resources.

76. The Supreme Court of California, in the case of National Audubon Society v. Superior Court of Alpine Country 33 Cal.419 also known as the Mono Lake case summed up the substance of the doctrine. The Court said:

"Thus the public trust is more than an affirmation of state power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands., surrendering the right only in those rare cases when the abandonment of the right is consistent with the purposes of the trust."

This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not exactly prohibit the alienation of the property held as a public trust. However, when the state holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny upon any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To properly scrutinize such actions of the Government, the Courts must make a distinction between the government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources, [Joseph L. Sax "The public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention", Michigan Law Review, Vol.68 No.3 (Jan.1970) PP 471- 566)]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to imposed by the public trust doctrine [ibid]:

1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;

2. the property may not be sold, even for fair cash equivalent

3. the property must be maintained for particular types of use. (i) either traditional uses, or (ii) some uses particular to that form of resources.

77. In the instant case, it seems, that the Government Orders, as they stand now, are violative of principles 1 and 3, even if we overlook principle 2 on the basis of the fact that the Government is itself developing it rather than transferring it to a third party for value.

79.Further the principle of "Inter-Generational Equity" has also been adopted while determining cases involving environmental issues. This Court in the case of A.P. Pollution Control Board v. : Prof. M.V. Nayudu and Ors. [1999]1SCR235 held as under:

The principle of inter-generational equity is of recent origin. The 1972 Stockholm Declaration refers to it in principles 1 and 2. In this context, the environment is viewed more as a resource basis for the survival of the present and future generations.

Principle 1 - Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for the present and future generations....

Principle 2 - The natural resources of the earth, including the air, water, lands, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of the present and future generations through careful planning or management, as appropriate.

89.The set of facts in the present case relates to the preservation of and restoration of status quo ante of two tanks, historical in nature being in existence since the time of Srikrishnadevaraya, The Great, 1500 A.D., where the cry of socially spirited citizens calling for judicial remedy was not considered in the right perspective by the Division bench of the High Court of Andhra Pradesh despite there being overwhelming evidence of the tanks being in existence and were being put to use not only for irrigation purpose but also as lakes which were furthering percolation to improve the ground water table, thus serving the needs of the people in and around these tanks. The Division Bench of the High Court, in the impugned order, has given precedence to the economic growth by completely ignoring the importance and primacy attached to the protection of environment and protection of valuable and most cherished fresh water resources.

91.It is true that the tank is a communal property and the State authorities are trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to commit any act or omission which will infringe the right of the Community and alienate the property to any other person or body.

The Apex Court in Jagpal Singh and ors. V/s State of Punjab and ors. (Civil Appeal No1132/2011 decided on 28.1.2011) has held in the context of village "pond" which was being used for the common purposes by villagers that if appellants have built houses on the land in question, they must be ordered to remove their constructions and possession of the land in question must be handed back to the Gram Panchayat and regularizing such illegalities must not be permitted because it is a gram sabha land which must be kept for the common use of the villagers of the village. Reliance was placed upon the decision in M.I.Builders (P) Ltd. V/s Radhey Shyam Sahu (1999(6) SCC 464) in which Apex Court ordered restoration of a park after demolition of shopping complex constructed at the cost of over Rs.100 crores. In Friends Colony Development Committee V/s State of Orissa (2004(8) SCC 733), the Apex Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. This principle applies with greater force in cases of encroachment of village common land. The Apex Court noted that in many States, the Government orders have been issued permitting allotment of gram sabha land to private persons and commercial enterprises on payment of some money and such government orders are held to be illegal and should be ignored. In Hinch Lal Tiwari V/s Kamala Devi (AIR 2001 SC 3215) the Apex Court held that land recorded as a "pond" must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land which they occupied illegally after taking away the material of the house. The Apex Court has also noted that over the last few decades, most of these ponds in our country have been filled with earth and built upon by greedy people thus destroying their original character and this has contributed to the water shortages in the country. Many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials and even such money collected from these so called auctions are not used for the common benefit of the villagers, but misappropriated by certain individuals. The Apex Court in Jagpal Singh's case (supra) has laid down thus:-

"14. In M.L.Builders (P) Ltd. V/s Radhey Shyam Sahu (1999(6) SCC 464) the Supreme Court ordered restoration of a park after demolition of a shopping complex constructed at the cost of over Rs.100 crores. In Friends Colony Development Committee V/s State of Orissa 2004(8) SCC 733, this Court held that even where the law permits compounding of unsanctioned constructions, such compounding should only be by way of an exception. In our opinion, this decision will apply with greater force in cases of encroachment of village common land. Ordinarily, compounding in suchcases should only be allowed where the land has been leased to landless labourers or members of Scheduled Castes/Scheduled Tribes, or the land is actually being used for a public purpose of the village e.g. running a school for the villagers or a dispensary for them.

15. In many States Government orders have been issued by the State Government permitting allotment of gram sabha land to private persons and commercial enterprises on payment of some money. In our opinion all such government orders are illegal and should be ignored.

16. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari V/s Kamala Devi AIR 2001 SC 3215 (followed by the Madras High Court in L.Krishnan V/s State of Tamil Nadu 2005(4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case.

18. Over the last few decades, however, most of these ponds in our country have been filled with earth and built upon by greedy people, thus destroying their original character. This has contributed to the water shortages in the country.

19. Also, many ponds are auctioned off at throw away prices to businessmen for fisheries in collusion with authorities/Gram Panchayat officials and even this money collected from these so called auctions are not used for the common benefit of the villagers, but misappropriated by certain individuals. The time has come when these malpractices must stop."

The Apex Court in the case of Jagpal Singh (supra) has further held that 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. It is very shocking and surprising that the respondent No.14 is claiming equity in the matter of making encroachment towards the canal. Such plea not only is impermissible but highlights illegal action taken by others of encroaching the same. As a matter of fact no right can be created by raising illegal construction over such property of public use like canal. There is bounden duty of the Panchayat and other authorities to prohibit such construction and such property cannot be alienated or permitted to be destroyed in any manner. No construction can be permitted over such canal. Construction, if any, which have been made by any person, the respondent No.14 cannot claim equity. The respondent authorities are also bound to take action for removal of such encroachment and in case any encroachment has been made as alleged in the reply filed by the respondent No.14 by above stated banks and other authorities, we direct the concerned authority to remove any construction made by the aforesaid incumbents and if it is found that they have encroached any of the portion of the canal, let appropriate action be taken in accordance with law for clearing the encroachment made over the canal in any manner whatsoever.

Let appropriate action be taken for removal of the construction of the respondent No.14 within a period of fifteen days from today and with respect of others as mentioned in the order as above, let proper enquiry be conducted and action be taken in accordance with law after giving them opportunity of hearing within a period of three months from today and compliance report be submitted before this Court. Let District Magistrate also ensure compliance of the order and to submit compliance report this Court.

The learned counsel appearing for the petitioners submits with respect to the plan relied upon by the petitioners that no date and no sanction number have been given in the plan. Whatever that may be, even if sanction is granted, it is illegal and void with respect of the area of the canal.

The petition stands disposed of.

(Joymalya Bagchi, J) (Arun Mishra, Chief Justice)

http://judis.nic.in/Kolkata_App/Judge_Result_Disp.asp

Land sharks gobble up 80-cottah pond

TNN | May 24, 2012, 05.03AM IST

KOLKATA: Encroachment of waterbodies continues unabated. After a pond was filled up in Dum Dum and another in Nonadanga late last year, land sharks have struck yet again – this time in the city proper - filling up an 80-cottah waterbody to construct residential high rises. The encroached pond is at 51A Canal Circular Road behind Apollo Gleneagles Hospital in east Kolkata.

The controversial plot, that locals say rippled with water till three to four months ago, has now been filled up with earth. Though some claimed that the 80-cottah 'land' in question was a low-lying area where water accumulated during monsoon, giving the impression of a waterbody, others disputed it in hushed tones and informed that a pond had existed there for years. Sources said both muscle and money had played a part in suppressing voices in the neighbourhood.

The presence of shanties housing washermen is the only evidence of a 'waterbody'. In south Kolkata, too, washermen live in a cluster around a pond off Pramathesh Barua Sarani. "With the pond at Canal Circular Road now gone, the washermen have to make do with water from a well," said washerwoman Uma Razak.

It was a local resident who alerted environment activist Subhas Datta about the encroachment. The latter went on a recce on Wednesday afternoon, but was stopped by private security guards posted at the site. It was only after police arrived that the guards relented. What Datta saw left him in shock. "There is no sign of a pond now. It has been completely filled up," he said.

Sources said the pond has been filled up over the past couple of months under blanket security. The entrance to the plot is shrouded with a black tarpaulin and entry strictly monitored. There is absolute secrecy over who the promoters are and what is to be constructed at the encroached site.

Some, however, brazenly claimed that the 'so-called pond' was a lowland. "It is good that it is being filled up," said Rajesh Sharma, who has been living here for 40 years. Activist Bonani Kakkar, who has fought many a legal battle for wetland conservation, clarified that any waterbody over 5 cottah comes under the purview of Inland Fisheries Act and any wetland, whatever be the condition, cannot be converted to dry land.

A 16-year-old spilled the beans. "The pond had a lot of water, but the people have been filling it gradually for years. The activity picked up steam over the past couple of months," he said.

An FIR has been lodged and Phool Bagan police have written to Kolkata Municipal Corporation for action. KMC has, in turn, asked police to maintain a 24x7 vigil and plans to inspect the site soon. "A joint inspection will be carried out with representatives of the pollution control board, inland fisheries department and KMC's project management unit," said KMC member, mayor-in-council (environment) Sanchita Mondol.

South Asian Forum for Environment chair Dipayan Dey isn't too enthused with the assurance of an inspection. "It is our collective responsibility to end the encroachment and filling of wetlands. But no one is doing anything about it. There are several cases like these, but they never come to our notice," he added.

http://timesofindia.indiatimes.com/city/kolkata/Land-sharks-gobble-up-80-cottah-pond/articleshow/13425133.cms

Copyright © 2012 Bennett, Coleman & Co. Ltd. All rights reserved.

News Article: Bengal's First Report Echoes Industry Fears

Pranesh Sarkar
Saturday, 14 January 2012 10:11

Calcutta: A preliminary report on the land bank, the magic pot that was supposed to offer the Mamata Banerjee government a palatable solution to the industry hurdle, has painted a grim picture. The report, sent to the chief minister earlier this week, has revealed that 90 per cent of the vested (government-owned) land in Bengal comprises scattered, small plots and nearly 50 per cent of plots are either encroached upon or under litigation.

Besides, 70 per cent of the large parcels are situated in districts facing infrastructure or law-and-order problems. The state has around 2.5 lakh acres of vested land, according to the report that was drawn up on the basis of data sent by district magistrates and 34 departments. The figure in itself may look sizable but the devil lurks in the details.

“The first comprehensive report on the land bank is not very encouraging for the state government. The size of 90 per cent of the plots falls below 100 acres. As big manufacturing industry requires bigger plots, these plots cannot be used to attract big industry,” said a senior state government official who has seen the report.

This report, however, is not the final one. Some departments like health and family welfare, housing, panchayat and rural development and animal resources development are yet to submit the status reports to the land and land reforms department, which will collate data and prepare the final report.

However, according to estimates given by senior officials in the land and land reforms department, the size of the land bank is not expected to go up by more than 50,000-75,000 acres once all the departments submit the details. “The quantum of land available will go up in the final report. But we don’t expect the size of the land parcels to be significantly different from what we have found in the preliminary report,” said the official. The state government has so far been trying to address industry’s overriding concern at the hands-off land policy by referring to the land bank as the cure.

According to the first report, only a “small” percentage of land — measuring between 100 and 700 acres — can accommodate industry. The number of such land parcels is put at not more than 150. Officials said that plots of this size could be used to set up industries like automobile units.

However, the location of these plots poses a problem. “Around 70 per cent of these land parcels are located in districts like West Midnapore, Bankura, Purulia while some of them are in Birbhum, Burdwan and in isolated islands of South 24-Parganas. It is tough to convince industrialists to go to these areas either because of law-and-order problems or lack of infrastructure,” an official said.

The preliminary report on the land bank has revealed that the state has very few land parcels measuring between 900 and 1,200 acres. For projects in power and steel, land should be in excess of 900 acres, said an official, pointing out that L&T had sought 1,200 acres to set up a 1,600MW power plant.

“We are finding it difficult to scout for contiguous land parcels to meet such demands…. We could only find three-four plots (for the L&T project), measuring between 500 acres and 700 acres, and all of them were located in West Midnapore,” the official said.

Mamata has said several times in the past few months that her government will encourage industry to explore investment opportunities in the districts. She has also promised to create infrastructure to facilitate industrialization in areas that are traditionally perceived as backward regions. However, the government has yet to come up with resource generation plans that can bankroll the creation of infrastructure.

“Industrialists expect the government to create infrastructure before going to the districts while the government is saying that they will create the infrastructure once industry decides to go to the districts. It is like a chicken-and-egg problem,” said a senior official in a city-based chamber.

The seven-month-old government has another difficult task at hand before placing the details of the land bank to potential investors.

“The government will have to remove encroachments and settle legal disputes. Removing encroachments is a politically sensitive issue while resolving legal tangles is a time-consuming process,” the official added.

CM lowers bar

Mamata on Friday sought to scale down the expectations from her. She explained that her oft-repeated pledge to transform Calcutta into London was “an idea” and cited land encumbrance as well as the funds crunch. “Small is beautiful… beauty is in the mind,” Mamata said in Digha.

- The Telegraph

 
http://www.newsbullet.in/india/34-more/24485-bengals-first-report-echoes-industry-fears

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