National Green Tribunal
Asif Iqbal vs The State Of West Bengal on 18 October, 2022
Item No.09 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No.91/2022/EZ
Asif Iqbal Applicant(s)
Versus
The State of West Bengal & Ors. Respondent(s)
Date of hearing: 18.10.2022
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Mr. Meghnad Dutta, Adv. a/w Mr. Abhishek Shaw,
Advocate
For Respondent(s) : Mr. Dipanjan Ghosh, Advocate for WBPCB,
Mr. Rajib Ray, Adv. for R-1 to 6 & 9,
Mr. Atanu Banerjee, Adv. and Arindam Das, Adv. for-
R-10 & 11 i.e., Berhampore Municipality,
Ms. Nasreen Islam, Adv. for R-12 to 18,
Ms. Aprita Chowdhury, Adv. for R-4,
Mr. Rafikul Alam, Adv. for R-7 & 8,
ORDER
1. Learned Counsel Mr. Meghnad Dutta, assisted by Mr. Abhishek Shaw, is present for the Applicant.
2. Ms. Arpita Chowdhury, learned Counsel files vakalatnama on behalf of Respondent No.4. i.e., District Magistrate, Murshidabad. She prays for and is granted three weeks and no more for filing counter-affidavit.
When the case is next listed, the name of Ms. Arpita Chowdhury shall be printed in the Cause-list as Counsel for Respondent No.4.
3. Mr. Rajib Ray, learned Counsel files his vakalatnama on behalf of State of West Bengal; the same is taken on record.
4. Mr. Rafikul Alam and Mr. Sabyasachi Roy, learned Counsel file vakalatnama on behalf of West Bengal Pollution Control Board i.e., Respondent Nos. 7 & 8; the same is taken on record. When the case is 1 next listed, names of Mr. Rafikul Alam and Mr. Sabyasachi Roy shall be printed in the Cause-list as Counsel for West Bengal Pollution Control Board.
5. Supplementary affidavit dated 14.10.2022 has been filed by the Applicant; same is taken on record.
6. Affidavit dated 17.10.2022 has been filed on behalf of Respondent No. 7 & 8 i.e., West Bengal Pollution Control Board; same is taken on record. Along with this affidavit, an inspection report has been filed with the following observation and recommendation which are extracted hereinbelow:-
Observation:
Inspection of the alleged water body know as 'Molla Ghera' situated at Mouza-Khagra, Jl No.97, Plot No.1700, Murshidabad was carried out on 7th Sept. 2022. During inspection, the committee observed following:
1. As per the revenue records the original area of the Pukur (Pond) in questioned, i.e. the L.R. plot number 1700, J.L. No.97, PS- Berhampore Town, dist-Murshidabad is 2.17 acres.
2. As per field inspection the total encroached area of that Pond in questioned is 0.48 acre [including 0.065 acre with newly constructed market building southern side of the plot, 0.03 acre old Pucca construction western side of the plot, 0.075 acre temporary construction western side of the plot and 0.31 acre with dumping garbage and bushes southern as well as western side of the plot] as on date. A copy of the present L.R. plot information (Revenue Record) is enclosed. (Marked as Annexure- R1)
3. The said water body is situated in a densely polulated area.
Around the Alleged Water Body (namely Mollar Ghera), Permanent and Temporary construction (House/Shops etc) has been done. Half done construction is lying adjacent to the Road (Southern & Western side), which was duly stipped as per Solemn Order date 26.07.2022 of Hon'ble National green tribunal, Eastern Zone Bench, Kolkata.
4. As informed, this Water Body is Private property and belongs to Sahadat hossain and others.
2(L.R. Plot Information, Marked as Annexure R-2)
5. The water body is surrounded by trees and shrubs grown at its margin. The water body was found to be covered by aquatic weeds and in few places emergent plants were also observed.
6. Few drains were flowing towards the alleged water body and finally discharges into that. Garbages are dumped into the pond by local people and those were found to float during inspection.
7. As per report of vice-Chairman, Berhampore Municipality on Mollgere, At the Mollagere, there was a pond vide Dag No. L.R.1700, Mouza-Khagra J.L. No.-97 since long time. But the pond was never cleaned by the owner. Local people used to throw their solid wastes at pond without any objection from the owner. Moreover; number of drains fallen in the Mollagere pond as outfall such as (a) Three nos. drains from Khetramoni Rajakini Lane under ward no.14 (b) One no. High Drain from Jelepara lane, Chandra Sekhar Mukherjee Road under ward no.10, (c) Two nos. Drains from Jelepara Harijan bustee under word no. 10, (d) One No.drain from Nutan Para bustee and also other private drains of surrounding households of Mollgere area fallen in the Mollagere pond since long time. Now, the Mollgere pond is full of garbage, weeks and debris. The report of Municipality (Marked as Annexure R-3)
8. As informed by local population that there were old Hawker's shops which been dismantled and in place of that new shop building construction started, which was duly stopped as per Solemn Order date 26.07.2022 of Hon'ble National Green Tribunal, Eastern Zone Bench, Kolkata.
9. As reported by local people during dry season the water body gets dry and even local people use to walk over that and children play over the dried Pond.
10. Local populace throws/dumps garbage, plastic bottles, C7 D Waste etc., into the disputed water body.
11. As per direction of Hon'ble National Green Tribunal, Eastern Zone Bench, Kolkata, water sample was collected from the alleged water-body and analysis report is following:
Parameter Location Standard
Western side of Eastern side of
pond pond
pH 7.58 7.78 6.5-8.5
TC (mpn/100ml) 7800 4500 < 500
500(Desirable)
FC (mpn/100ml) 130000 79000
2500 (Max.
3
permissible)
COD (mg/1) 44.66 59.22
BOD (mg/1) 10.13 16.22 < 3 mg/I
Recommendation:
1. Concrete structure constructed on the water body area
(encroachments) should be removed/demolished. If the Hon'ble Green Tribunal passes any Order, in compliance of such Order, the District Administration is always ready to demolish such unauthorized encroachment.
It is pertinent to state that the total water body is the property of different Raiyats. It may be presumed that the old unauthorized encroachments (with the exception of the aforementioned one) had been executed with the implied consent of such Raiyats/owners or indifference of such Raiyats/owners. So it was the duty of such Raiyats/Owners to demolish the unauthorized encroachments, but being aware of such situation they sat idly and had not taken any initiatives to demolish or remove such unauthorized encroachment. Under such circumstances, the Government Authority is not duty bound to remove such old unauthorized encroachments and in present case no prayer for removal of such encroachments had been received from any such Raiyats/Owners.
2. The water pond should not be Lined using Tiles/Brick/concrete/Wooden logs. Hence maintaining natural condition of the aquatic system is suggested.
3. Any type of solid waste should not be dumped into the water body.
4. Any type of waste water drainage system should not be directly discharged into the water body.
5. The C&D waste should not be dumped into water pond as filler material.
6. The pond should be cleaned on regular basis such as removal of plastic and other waste, removal of clay and other weeds are recommended to maintain its natural wholesomeness.
7. Different rooted plants and shrubs already grown in the bank and surrounding area should be protected.
48. No tree can be felled without prior permission from the tree cutting authority constituted as per the West Bengal Trees (Protection and conservation in Non-Forest Areas) Act, 2006 and subsequent rules.
9. Regular supervision of the above and other measures should be in place all through the construction phase as to avoid disturbance on the surroundings. Discomfort in the neighbourhood due to the proposed project activity should be minimized as far as practicable.
7. Respondent Nos.-10 & 11 i.e., Berhampore Municipality, has not filed its affidavit. Let the same be e-filed within 24 hours.
8. Ms. Nasreen Islam, learned Counsel appears on behalf of Respondent Nos.-12 to 18 i.e., Private Respondents and states that she has filed counter-affidavit but we are informed by the Registry that the same is in defect. Let the corrected affidavit be filed within one week.
9. List on 29.11.2022.
..................................... B. Amit Sthalekar, JM ...................................
Saibal Dasgupta, EM October 18, 2022 Original Application No.91/2022/EZ BD 5