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Items No. 01 & 02 BEFORE the NATIONAL GREEN TRIBUNAL

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Items No. 01 & 02 BEFORE the NATIONAL GREEN TRIBUNAL Items No. 01 & 02 BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI (Through Video Conferencing) Original Application No. 36/2015 (EZ) With Original Application No. 18/2018 (EZ) Ranjan Sarkar & Anr. Applicant(s) Versus State of West Bengal & Ors. Respondent(s) With Ramjibanpur Babulal Institution & Anr. Applicant(s) Versus State of West Bengal & Ors. Respondent(s) Date of hearing: 11.06.2020 CORAM: HON’BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER HON’BLE DR. NAGIN NANDA, EXPERT MEMBER HON’BLE MR. SIDDHANTA DAS, EXPERT MEMBER For Applicant(s): Mr. Sumit Roy, Advocate (in Item No. 1) For Respondent(s): Mr. Bikar Kargupta, Advocate for Respondents No. 1 & 3 (in Item No. 1) and for Respondents No. 1, 3, 4 & 6 (in Item No. 2). Mr. Goutam Debnath and Ms. Debanjana Ray Choudhuri, Advocates for Respondent No. 21 (in Item No. 1) and for Respondent No. 5 (in Item No. 2). Mr. Sumit Roy, Advocate for Respondents No. 7 & 8 (in Item No. 2). 1 ORDER 1. Case taken up by video conference on Vidyo App. 2. This is a case which has been transferred by the Hon’ble Calcutta High Court on 23.03.2015. Writ Petition No. 37135(w)/2013, in the matter of Ranjan Sarkar & Anr. v. State of West Bengal & Ors. was thus registered as O.A. No. 36(THC)/2015/EZ and taken up for consideration by the Tribunal. The Applicant in the case has raised the issue of environmental degradation alleging that a doba (water body/lake) under Sarbasukha Mouza in the district of Paschim Medinipur is being filled up illegally without having statutory clearances. The records reveal that a High Powered Committee constituted by the Hon’ble Calcutta High Court on 03.02.2012 in Writ Petition No. 606/2011 for adjudication of the grievance of the writ petitioners on the question of filling-up of the doba, had submitted its report on 23.09.2013. Direction had been issued by the High Powered Committee to the District Magistrate, West Midnapore, to take necessary action under the West Bengal Land Reforms Act, 1955 and West Bengal Inland Fisheries Act, 1984 for construction of shops at DAG No. 79 in violation of said laws. It was noted vide order dated 19.08.2015 that the action was yet to be taken by the 2 District Magistrate. Thus, vide order dated 12.11.2015, the District Magistrate was directed to submit an affidavit and status report in the matter. The direction was reiterated in the order dated 12.11.2015 which was complied with as would be evident from the order dated 09.12.2015. It later transpired that DAG No. 79 which is the doba had still not been restored in its original form. In fact, it had been encroached upon illegally by several persons who are respondents in the present proceedings although, it was contended on behalf of the State that the illegal portion of the water body had been identified and the constructions raised thereon demolished by the District Magistrate. In order to ascertain the factual position, a Survey Commissioner was appointed with the following terms of reference: “(i) Whether there are any structures still existing on the Doba/Water body in the question. (ii) Whether any demolition of structure was carried out and if so, whether all structures were demolished as stated by Respondents Nos. 1 & 3 which are said to be 19 in number at the time of filing of the application.” 3. The Commissioner accordingly filed his report on 20.01.2017 which was taken on record by the order of the same date. The report reveals that a detailed survey work had been carried out by the Commissioner for which assistance had been taken from the BL&LRO and a team of 3 his surveyors present at the spot during the survey. By order dated 26.04.2017, it was noticed that the report of the Commissioner did not tally with the one submitted by the BL & LRO earlier and also the one filed by him before the High Powered Committee. 4. Another Writ Petition being Writ Petition No. 37135(w)/2013 had been filed before the Hon’ble High Court primarily on the ground that the directions contained in the report of the High Powered Committee had not been complied with by the District Magistrate, West Midnapore, having failed to take necessary action against Ramjibanpur Babulal Institution under the West Bengal Land Reforms Act, 1955 and the West Bengal Inland Fisheries Act, 1984 for converting the land use of DAG No. 79, J.L. No. 24, Sarbasukha Mouza recorded as doba. Taking note of this, by order 26.04.2017, the District Magistrate was directed to submit a report stating the reason as to why there was delay in implementing the order of the High Powered Committee which had derived its powers to issue such order in terms of the order of the Hon’ble High Court dated 13.05.2013. This was notwithstanding the order passed by the Tribunal for survey and report by the Commissioner referred to earlier. However, the case has remained at the present stage, as it had been informed that W.P. No. 4 38330(w)/2013 involving the very questions under consideration in the present O.A. was pending before the Hon’ble Calcutta High Court. 5. The last date on which the case was listed before us was 16.01.2018. 6. Records, however, reveal that W.P. No. 38330(w)/2013 also had been directed to be transferred by the Hon’ble Calcutta High Court vide order dated 13.11.2017 leading to O.A. No. 18(THC)/2018/EZ in the matter of Ramjibanpur Babulal Institution & Anr. v. State of West Bengal & Ors. being registered after which it has been tagged along with O.A. No. 36(THC)/2015/EZ. These cases are thus taken up together in view of the commonality of the issues involved for adjudication. 7. We have heard learned Counsel for the parties and carefully examined records including the reports of the High Powered Committee and that of the Commissioner appointed by the Tribunal. In our considered opinion, the two reports are consistent in finding that DAG No. 79, i.e., the water body, has been reduced or encroached upon by construction on the Northern portion commencing from North-East corner of DAG No. 2991 of Ramjibanpur Mouza and North-West corner of DAG No. 80 of Sarbasukha Mouza. 5 8. We may reproduce the relevant portions of findings of the High Powered Committee and that of the Commissioner as follows: Report of the High Powered Committee “Hence the Ramjibanpur Babulal Institution cannot change the landuse of Dag No. 79, JL No.-024, Mouza- sarbasukha which is recorded as ‘Doba’ by constructing shops which are used for commercial purpose without getting necessary permission under section 4C of The West Bengal Land Reforms Act, 1955. From the submissions it is apparent that no such permission has been taken. Also no permission was taken under The West Bengal Inland Fisheries Act, 1984. But Section 17A (9) of The West Bengal Inland Fisheries Act, 1984 reads thus – “No water area including embankment or naturally or artificially depressed land holding, referred to in clause (a) of sub-section (1), shall be (a) Put to any use other than fishery, or (b) Filled up with a view to converting it into solid land, For the purpose of implementation of any development scheme by any department of the Central Government or the State Government or any public undertaking under the administrative control of the Central Government or the State Government or any Statutory body or any Statutory body or local authority or any organization in the public sector or any organization or individual in the private sector, except with the prior approval of the State Government in the Department of Fisheries” The Committee therefore comes to the conclusion that the construction of shops at dag no. 79 is a violation of The West Bengal Land Reforms Act, 1955 and The West Bengal Inland Fisheries Act, 1984 and directs the District Magistrate & Collector, West Medinipur to take necessary action as per the aforesaid acts.” Report of the Commissioner “My observations: a) Area of Dag No. 79 as per ROR is 33 Decimal i.e. 14374 sft. But as per the boundary line shown by BL & LRO the area of plot reduced to 12933 sft. which is 1441 sft. less from ROR. b) As per ROR entire Dag was recorded as Dob/water body but in present condition it is found that the area of water body is 10796 sft. c) As per mouza map, the boundary line at north side of the school building of Dag no 80 of Sarbasukha Mouza and the boundary line at north side of the one storied structure of Dag no 2991 of Ramjibanpur Mouza, shows one straight line 6 parallel to the PWD road and no set back was seen. But in physical demarcation work done by the surveyors of BL & LRO has created one set back which does not match with the Mouza map. d) The plot of Dag no 79 has encroached the playground by 13’-00” as demarcated by the surveyors of BL&LRO at south-east corner. The boundary lines of the plot as surveyed by me and my observations are hereunder:- a) The boundary line of Dag no 79 at south side shall fall on the boundary wall separated the playground from Dag no 79. b) The boundary line at west side is extended upto the boundary line of north side of Dag no 2991, of Ramjibanpur Mouza.
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