Calcutta High Court
People United For Better Living In ... vs The Union Of India & Ors on 14 June, 2019
Author: Suvra Ghosh
Bench: Suvra Ghosh
ORDER SHEET
W.P.No.541 of 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
PEOPLE UNITED FOR BETTER LIVING IN CALCUTTA(PUBLIC) & ANR.
Versus
THE UNION OF INDIA & ORS.
BEFORE:
The Hon'ble CHIEF JUSTICE THOTHATHIL B.RADHAKRISHNAN
The Hon'ble JUSTIICE SUVRA GHOSH
Date : 14TH JUNE, 2019.
Mr. Sidhartha Mitra, Sr.Adv.
Ms.Rituparna Chatterjee,Adv.
..for petitioners.
Mr. Kishore Dutta, Ld.Advocate General.
Mr.Amitesh Banerjee, Ld.Sr.Standing Counsel.
...for state.
Mr.Abhratosh Majumder, Ld.AAG.
Mr.Sandip Dasgupta,Advocate
Mr.Ayan De,Advocate
..for Hidco.
Mr.Tapas Bhanja,Adv.
...for respondent Nos.1 & 2.
The Court : We have heard Mr. Sidhartha Mitra, learned Senior Counsel on behalf of the petitioners, Mr.Kishore Dutta, Learned Advocate General on behalf of the State, Mr.Mr.Abhratosh Majumder, Learned Additional Advocate General on behalf of HIDCO and Mr. Tapas Bhanja, learned counsel representing the Additional Solicitor General on behalf of the respondent Nos.1 and 2.
Learned counsel representing the Additional Solicitor General submits that the respondent Nos.1 and 2 may be granted further time to file their counter affidavits. The respondent Nos.1 and 2 in the writ petition are Union of India and Central Wetlands Regulatory Authority respectively.
The learned counsel for the petitioner points out that the sites in relation to which this writ petition has been necessitated, fundamentally are Ramsar Convention sites on wetlands and parts of international heritage and therefore, points out the orders of the Hon'ble Supreme Court dated 3rd April, 2017 and 16th August, 2017 passed in W.P.(Civil) No.230 of 2001 which obliges High Courts to deal with such matters even by initiating the same as public interest litigation.
This writ petition was filed on 7th September, 2017. It is brought to our notice today that on 26th September, 2017, i.e. after institution of the writ petition, the Wetlands (Conservation and Management) Rules, 2017 have been issued in supersession of the earlier rules; such supersession operating to the extent not excluded. Those rules (hereinafter referred to as "the said 2017 Rules") provide for duties and responsibilities of the State Wetland Authority in each state and the Central Government is to constitute those State Wetland authorities. As per Rule-5 of 2017 Rules, the State Wetland Authorities have been constituted and therefore, eo instante, the publication of the 2017 Rules, the State Wetlands Authority in each state has come into operation. Obviously, therefore, the State Wetland authority for the State of West Bengal is a necessary party to this writ petition. The State Wetlands Authority for the State of West Bengal is, therefore, impleaded as additional respondent. Learned Advocate General takes notice for the State Wetlands Authority for the State of West Bengal.
The National Wetlands Committee is constituted as per Rule-6 of 2017 Rules. That Committee is also, therefore, eo instante, came into being on the publication of the 2017 Rules. Therefore, notwithstanding, the availability of second respondent in the array of the parties, the National Wetlands Committee as per Rule-6 of 2017 Rules is hereby impleaded as additional respondent. The learned Additional Solicitor General takes notice for the said National Wetlands Committee.
Rule-7 of 2017 Rules provides for delegation of powers and functions to the State Governments and the requirement to carry out the drill and to make available materials and data as required by that Rule within a period of one year from the date of publication of 2017 Rules. Those Rules were published as per notification dated 26th September, 2017. Obviously, therefore, the period of one year fixed for performing the duties and responsibilities, in terms of Rule-7, has worked itself out. This means that, the data and further requirements in terms of that rule ought to be with the State Government concerned or the State Wetlands Authority concerned or the National Wetlands Committee, by now.
The issue raised in this writ petition as to whether a large span fly- over could be made over the wetlands for the purpose of movement of vehicles etc. While the petitioners insist on the requirement to abide by exclusion of wetlands for such purposes, we are of the view that this matter has to be deliberated upon on the basis of the inputs that would come from the National Wetland Committee and the State Wetland Authority of West Bengal constituted under 2017 Rules. Learned counsel appearing for the petitioner points out that writ petition is not confined to the construction of fly-over and also deals with various other aspects, such as, unauthorized filling up and utilization of wetland areas particularly Ramsar site in violation of the law relating to environment and management of wetlands.
The learned Advocate General is justified in pointing out that as per order dated 13th September, 2017, this Court had recorded the undertaking of the State that it will not undertake the construction of the proposed fly-over since all necessary permissions have not yet been obtained. Obviously, therefore, such construction activities cannot go on.
Be that as it may, to ensure requisite balance of the different components of the public interest touching eligibility of people to move from place to place and also for transit of goods and vehicles as well as the requirement to maintain the ecological balance and environmental conditions, it is necessary that the consideration of the issues raised, cannot linger more. It is, therefore, for the National Wetlands Committee and the West Bengal State Wetlands Authority to place its detail Affidavits on record touching all relevant aspects including those materials which are relevant in terms of 2017 Rules. The West Bengal State Wetlands Authorities will also place before us for consideration the entire detail data collected and finalized in terms of Rule-7 of 2017 Rules which is a statutory requirement.
We direct that in the meanwhile the Government of West Bengal as well as all executive authorities and police authorities to ensure that there is no activity in any part of the wetlands to which 2017 Rules apply, except in strict conformity with those rules and requisite permissions from the competent authority under those rules. This direction shall be treated as a general directions to all the authorities and officials under the command of the Government of West Bengal. It may also be taken note that it will be within the duties of all such authorities and officers to take requisite measures in terms of the law to prevent and also to take cognizance of any violation of statutory prohibitions. Let it be noted that if this Court comes across of any such situation where any official disregards any of the above directions it will be at the peril of such official in terms of such orders as may be issued by this Court from time to time.
Let such affidavits be placed on record after service of copies to all sides before 16th of July, 2019.
Post on 19th of July, 2019 for further consideration.
Office is directed to supply a copy of this order to the learned Advocate General and Additional Solicitor General.
Let the copy of this order be issued to the parties after completion of all requisite formalities.
(THOTTATHIL B.RADHAKRISHNAN, CJ.) (SUVRA GHOSH, J.) ssaha AR(CR)