National Green Tribunal
Dwaipayan Sen Guptadwaipayan Sen Gupta vs Ministry Of Environment Forest And ... on 16 March, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No.85/2019/EZ
IN THE MATTER OF:
Dwaipayan Sengupta,
S/o late Prem Ranjan Sengupta,
Having address of service of all notices
At 155F, Swinhoe Lane,
2nd Floor, Kolkata-700042
....Applicant(s)
Versus
1. The Union of India
Through the Secretary,
Ministry of Environment, Forests and Climate Change
Indira Paryavaran Bhawan, Jorbag Road,
New Delhi-110003
2. The State of West Bengal,
Through the Chief Secretary, Govt. of West Bengal
Nabanna, 325, Sarat Chatterjee Road,
Shibpur, Howrah-711102
3. The Principal Secretary,
Urban Development Department, Govt. of West Bengal
Nagarayan Bhawan, Sector-I,
Salt Lake City, Block DF-8,
Bidhannagar, Kolkata-700064
4. The State of West Bengal
Through the Principal Secretary,
Department of Environment, Govt. of West Bengal,
Prani Sampad Bhavan, 5th Floor,
LB-2, Sector-III, Salt Lake,
Kolkata-700098
5. The West Bengal Pollution Control Board,
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Through the Chairman,
Department of Environment, Govt. of West Bengal,
Paribesh Bhawan, 10A, Block-LA, Sector-III,
Bidhannagar, Kolkata-700097
6. The Chairman, Department of Environment, Govt. of West
Bengal
Prani Sampad Bhavan, 5th Floor,
LB-2, Sector-III, Salt Lake, Kolkata-700098
7. The State of West Bengal,
Through the Principal Secretary,
Public Works Department, Govt. of West Bengal
325, Sarat Chatterjee Road, (8th Floor),
Shibpur, Howrah-711102
8. The Executive Engineer,
Public Works Department, Govt. of West Bengal
5th Cross Road, DF Block,
Sector-I, Salt Lake City, Kolkata-700064
9. The Executive Engineer,
Barasat Highway Division No.1, P.W. (Roads) Directorate,
5th Cross Road, DF Block, Sector-Salt Lake City,
Kolkata-700064
10. South Dum-Dum Municipality,
Through the Chairperson, Nagerbazar,
Dum-Dum Road, Kolkata-700074
11. The Commissioner of Police,
Bidhannagar Police Commissionerate,
Broadway Road, JB-Block, Sector-III,
Salt Lake City, Kolkata-700098
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12. The Chairman/Managing Director,
Kolkata Metropolitan Development Authority
(Prashasan Bhawan), Block-BB-1, Salt Lake City,
Sector-I, Kolkata-700064
13. The Principal Secretary,
Irrigation and Waterways Department,
Govt. of West Bengal, Jalasampad Bhawan,
1st Floor Bidhannagar, Salt Lake,
Kolkata-700091
14. District Magistrate,
24 Parganas (North), New Administrative Building,
North 24 Parganas, Barasat, Pin-700124
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Anindya Lahiri, Advocate a/w
Mr. Samrat Dey Paul, Advocate
COUNSEL FOR RESPONDENTS:
Mr. Gora Chand Roy Choudhury, Advocate for R-1,
Mr. Srijan Nayak, Advocate a/w
Ms. Rituparna Moitra, Advocate for R-8 & 9,
Ms. Paushali Banerjee, Advocate for R-12,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On: - 10th February, 2022 Pronounce On: - 16th March, 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 3 JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the Applicants as well as the learned Counsel for the Respondents and perused the documents on record.
2. This Original Application has been filed by the Applicant seeking execution of the direction contained in paragraph 62 (1) and (2) of the judgment of this Tribunal dated 10.07.2017 passed in Original Application No.27/2015/EZ, Dwaipayan Sengupta Versus Union of India & Ors.
3. The aforesaid original application was filed by the Applicant alleging encroachment and filling up of a water body known as Nayanjuli which extends from Ultadanga to Lake Town crossing on the Southern side of VIP Road covering four wards. It was also alleged therein that the water body was being used as a dumping ground for waste material. The said original application was disposed of by the Tribunal with several directions but for purposes of the present application, we are only concerned with the directions in paragraph 62 (1) and (2) of the judgment dated 10.07.2017 which read as under:-
"(1) To restore the existing fragmented water bodies of Nayanjuli between Golaghata and Sreebhumi as indicated in the report of the West Bengal Pollution Control Board which finds corroboration in the affidavit of the Executive Engineer, Barasat Highway Division No.1 in his affidavit referred to above. Since it is the stated case of the Respondents that work on beautification project had been stopped after the order of 4 prohibition dated 21st April, 2015, there should be no impediment in implementing this order.
(2) While carrying out the above task, the "scheme for restoration of flow of water" shall be implemented as per the drawing prepared by the Expert Committee in its report 07.09.2015 being Annexure A to the affidavit of the Principal Secretary, Public Works Department filed on 09.09.2015, as there appear to exist water channel connecting water bodies marked as MKD.1, 2 and 3 at the Ultadanga end, Golghata and Lake Town respectively. The water channel shall be cleared of all garbage, hydrophytes and sediments. Since there onwards the Nayanjuli is found to exist in its pristine condition, no direction would be necessary except that the South Dum Dum Municipality shall get it free of all garbage, hydrophytes and sedimentation, if not already done."
4. The original application was entertained on the allegation of the learned Counsel of the Applicant that interim orders are required, since the respondents have taken up the work of expansion of the VIP Road in the process of which water body is being encroached upon.
5. An affidavit has been filed by Respondent No.7 & 9, the Principal Secretary (now designated as Additional Chief Secretary), P.W.D. and the Executive Engineer Barasat Highway Division No.1, PW (Roads) Directorate respectively. The averments of paragraph 3(a) of the affidavit have been reproduced by the Tribunal in its order dated 29.06.2020 which are also reproduced herein under:-
"There is no ongoing construction work for widening of VIP Road at present nor even envisaged to be done in near future. So there is no question of any disturbance/hindrances to 5 existing water bodies in anyway." However, an underpass by Jack push technique is stated to be under construction at the Lake Town Crossing of K.N.I. Avenue (V.I.P. Road) under Barasat Highway Division No.1, North 24 Parganas in terms of the directions passed by the Hon'ble Supreme Court for improvement of Road Safety Measures. Tender in respect of this work is stated to have been floated on 18.12.2019.
6. An additional affidavit has been filed by the Applicant placing on record five tracing papers depicting the before and after condition of the water body of Nayanjuli along with several photographs to illustrate that the respondents have been undertaking construction works which would result in the filling up of the Nayanjuli water body. The Nayanjuli water body is still in existence in its pristine condition, as noted by the Tribunal in the judgment dated 10.07.2017 passed in Original Application No.27/2015/EZ, from Lake Town towards Dum-Dum Park. Originally it was stated that the Nayanjuli water body existed in fragmented water bodies between Golaghata and Sribhumi.
7. The learned Counsel for the Applicant referred to the order of the Tribunal dated 21.04.2015 passed in Original Application No.27/2015/EZ wherein interim directions were issued by the Tribunal. The operative portion of the said order reads as under:-
"Having regard to the documents annexed in the original application and on consideration of different reports including the satellite pictures, we are of the view that a direction by way of interim measures upon all the respondents viz. concerned municipality, the police administration, district administration, State Govt. including State Pollution Control 6 Board should be passed directing to take all steps and measures to protect the 'Nayanjuli' from being polluted further and is encroached further by way of illegal construction. We pass the order accordingly. Action taken report be filed on the next date by the respective respondents."
8. It is also stated that subsequently the Tribunal in that original application also invoked powers conferred by the National Green Tribunal Act, 2010 under Section 28 of the Act thereof for failure to comply with the orders of the Tribunal and issued notices to the respondents directing them to file counter-affidavits. It is stated that the Tribunal also by its order dated 29.05.2015 appointed an Advocate Commissioner and directed him to inspect the spot and file its report.
9. It is stated that the affidavit was filed by the Executive Engineer, Barasat Highway Division No.1, PW (Roads) wherein it was admitted that administrative approval had been granted for landscaping and beautification of the land along the VIP Road from Ultadanga Flyover to Lake Town More and an e-tender had also been floated in respect of execution of beautification work of 2 standing water bodies along with surrounding land located at 3km of the VIP Road from Bangur Avenue to Dum-Dum Park. Reference has also been made to the report of the Advocate Commissioner dated 02.07.2015 along with which several photographs have been filed. We find that all the matters and all subsequent affidavits have already been considered by the Tribunal in its judgment dated 10.07.2017. The question as of today therefore only is whether the 7 directions given in paragraph 62 (1) and (2) of the judgment have been complied with or not.
10. The learned Counsel for the Applicant has referred to document filed as Annexure N-1 which is a map to suggest that the boundaries in blue colour represent the Nayanjuli Khal. These maps which are running in several sheets show the Nayanjuli Khal as covering from existing ward no. 35, 34, 30 and 29. The blue lines do not show as such any encroachment by the respondents. The photographs which have been filed at page no.309 to 311 however do show certain earth works being carried out and there are dumpers unloading mud and earth but there is also a wooden barricade showing enclosed water body and the earth work is outside this wooden barricade and does not show any encroachment in the water body as such.
11. The affidavit dated 26.06.2020 of the Principal Secretary (now designated at Additional Chief Secretary) and Executive Engineer, Barasat Highway Division-1, states that a pedestrian underpass is proposed for construction by adopting Box jacking/Jack Push technique at Lake Town Crossing of K.N.I. Avenue (VIP Road) and the construction of the subway would be similar to those which already exist in Lake Town or are proposed in the Lake Town subway for benefit of the people but without disturbing the water body.
12. Another affidavit dated 30.07.2020 has been filed by the Executive Engineer making the same averments and it is stated 8 that the ongoing construction of underpass at Lake Town crossing is not touching the water body and/or adjacent VIP Road in any manner. The photographs at page no. 346 show the proposed underpass and end of the water body and Danga Land is marked therein. No doubt the photographs depicts that the water body in question has been allowed to be severely over grown with weeds and shrubs.
13. The Additional District Magistrate, North 24 Parganas has also filed an affidavit dated 14.09.2020 stating that there was a small park with amusement articles for children which have been temporarily dismantled for the construction work. It is also stated that the construction of the underpass site falls within a part of plot no.282, admeasuring about 25.25 decimal (11,000 square feet approx) in Mouza-Kankuri, J.L. No.28, classification-Shali. The part of plot no.282 was acquired under due provisions of Land Acquisition Act, 1894 for construction of VIP Road and the present construction site falls within the area of acquisition. It is further stated that the construction work of the underpass is going on in the middle portion of the confined area of the map (page no.367 of the paper book) and marked as A, B1, C1 and D.
14. It is also stated that the Nayanjuli Khal (water body) exists beyond the said land denoted in the sketch map as B1, B, C and C1 and is also demarcated in the map. It is further stated that there are big trees on the north-east border line of the land mass shown in the sketch map on the verge of the waterline of the Nayanjuli 9 Khal. The photographs of the Nayanjuli Khal has been filed at page no. 372 of the paper book, which confirms what we have noted earlier that the Khal is in a very poor state of maintenance and is shown to be over grown with weeds and shrubs which if not cleaned would soon become extinct. The earth embankments are at places narrowing the Nayanjuli Khal.
15. The applicant has filed an affidavit in opposition dated 30.11.2020 stating therein that the natural flow of water in the Nayanjuli water body has almost come to a standstill making it a stagnant polluted water body due to lack of cleaning activities by the respondent authorities. The flow of water in the Khal has been arrested due to dumping of garbage, hydrophytes and settlements of sediments. The allegation of the original application has been repeated that fresh construction activities are going on which are filling up the stretch of the Nayanjuli water body from Lake Town Bangur More to Dum-Dum Park. Certain photographs have been filed with this affidavit and it is argued by the learned Counsel for the Applicant that the photographs at page no. 389 to 391 show the filling up of the Nayanjuli Khal with earth work but these photographs do not show the plot no. or even its location though it is mentioned that it is an illegal slum settlement illegally filling up the Nayanjuli Khal. The photograph at page no. 394 near the Kali Mata Mandir More again shows an extensive water body (page no.394 to 401 of the paper book) showing construction very close to the water line and also that the water body is extensively filled up with shrub, hydrophytes etc. 10
16. The Applicant has filed another affidavit in opposition dated 30.11.2020 with the same allegation.
17. Considering all the averments made in the preceding paragraphs there is nothing to show that Nayanjuli water body from Lake Town Bangur More to Dum-Dum Park has been encroached upon as alleged in the original application although the Khal is existing in an unhealthy environment with over growth of water hyacinth and stagnant water resulting in a breeding ground for mosquitoes and receptacle of garbage, filth and sewage thereby causing a serious health hazards for the locality.
18. Since, the character of water body has been significantly altered resultantly from activities undertaken over several years which is now largely irreversible, it is but natural for the State Government to ensure that the remaining part of the Nayanjuli Khal be maintained as a pristine water body.
19. Considering these facts which are supported by the photographic evidence on record, we dispose of this Original Application No.85/2019/EZ with the following directions:-
(i) The State Government is directed to clear the water body of all hydrophytes, shrubbery, waste material, sediments through dredging and create an earth work embankments on both sides of the Khal with Biodiversity Park/Tree avenue and a walking path all along with boundary of the 11 water line of the Nayanjuli Khal as a beautification project so as to ensure clean and clear flow of water therein.
(ii) We also direct the respondents to ensure regular dredging of the Nayanjuli Khal restoring its original embankment and to ensure that there is no dumping of garbage or construction waste/debris in the Nayanjuli Khal. These directions will be carried out in the entire stretch of the Nayanjuli Khal as shown in the ward no.35, 34, 30 and 29 in the maps.
(iii) We also direct that they shall be no encroachment and other construction on the existing water body of Nayanjuli water body in future and if any such encroachment happens it may be dealt with immediately in accordance with law by the concerned authorities so as to keep the Nayanjuli water body free from encroachment and as a clean ecologically sound water body.
(iv) The West Bengal Pollution Control Board is also directed to periodically monitor the water quality of the Nayanjuli water body to test for TDS, BOD, COD, pH, Fecal Coliform (FC) and Total Coliform (TC) and to ensure that the water quality of the Nayanjuli water body is maintained as per ecologically sound standard.
20. The above exercise shall be completed by the respondents within a period of three months i.e. by 30.05.2022 and an Action Taken Report shall be filed by the State Respondents by 04.07.2022.
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21. The urgency in the execution of our orders also arises from the fact that in a couple of months monsoons will break over West Bengal particularly in the City of Kolkata by early June, 2022 and therefore, the execution of our directions must be completed by 30.05.2022.
22. We also direct that our directions regarding cleaning of the Nayanjuli water body, also known as Nayanjuli Khal, shall also cover the existing Nayanjuli Khal from Ultadanga More to Lake Town More and Devighat and from Lake Town Bangur More to Dum-Dum Park in the existing Nayanjuli water body.
23. There shall be no order as to costs.
........................................ B. AMIT STHALEKAR, JM ........................................ SAIBAL DASGUPTA, EM Kolkata March 16, 2022 Original Application No. 85/2019/EZ MN 13