National Green Tribunal
Bakir Ali Rangwala S O Haji Ghulam Ali vs State Of Madhya Pradesh Through ... on 3 January, 2025
Item No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No.11/2022(CZ)
(I.A.No.115/2024)
Bakir Ali Rangwala Applicant (s)
Vs.
State of M.P. & Ors. Respondent(s)
Date of Hearing: 03.01.2025
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant (s): None
For Respondent(s) : Ms. Parul Bhadoria, Adv.
Mr. Dharamvir Sharma, Adv.
Mr. Prashant M. Harne, Adv.
ORDER
1. The issues raised in this application are encroachment on water bodies, Talab around the Govardhan Sagar Tank situated in the city Ujjain, Madhya Pradesh with prayer to issue directions to the Respondents to protect the water body/talab situated in Survey No. 1281 admeasuring around 36 bigha approx. (which has nearly shrunk to half) commonly known as Govardhan Sagar. It is submitted that the tank is situated near Nagar Kot Mata temple and is used by the general public since time immemorial for religious and other purposes. As a result of the continuous neglect, certain private 1 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
persons and housing societies have made various encroachment constructions along the talab which is causing damage to the water body and depletion of water resource„ and rampant pollution, due to which almost the entire Lake has vanished and is on the verge of extinction. The survey number was previously recorded in the name of Municipal Committee, Ujjain shown in revenue records of the year 1927-28 as Milkiyat Sarkar Municipal Committee Ujjain. The said land was always in the ownership of the State Government through Municipal Corporation and has always been accessible and use by general public, and the same was never under the control of any private persons. Throughout, the years various encroachments and settlements have cropped up near the Gowardhan Sagar possibly by playing fraud with the revenue records as is reflected from the survey and report of revenue authorities. As a result of this certain private persons and housing societies have made various constructions along the talab which is causing damage to the water body and depletion of water resource, and pollution. After enactment of the M. P. Abolition of Proprietary Rights Act, 1950, and also the insertion of Section 251 of the M.P. Land Revenue Code, 1959, all propriety and non- proprietary rights of private individuals 3 and land owners in respect of any tanks, ponds water channels etc., stand abolished and the same is vested in the State Government. The State Government by virtue of law is the protector and conservator of the said water body. Special provisions have been made in the Ujjain Master Plan 2021- highlighting the immediate reasons and need or water consideration in Goverdhan Sagar, and restrict building and polluting activities within and near the talab to the extent of 30 mtrs. 2 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
2. A further prayer has been made to issue directions to remove encroachment, to take remedial measures from discharging the untreated water / sewage water into the water bodies, to take necessary steps and planning with scheme for reformation and reclamation of water in the Goverdhan Sagar and to formulate a viable and realistic policy for its future conservation and maintenance and to ensure that no construction takes place within 30 meter of Goverdhan Sagar and that no building permission be granted within the area of the water bodies and to preserve the environment on the principals of sustainable development, Precautionary Principals and Polluters Pay Principal.
3. Article 21 of the Constitution of India protects not only the human rights but also casts an obligation on human beings to protect and preserve a specie becoming extinct, conservation and protection of environment is an inseparable part of right to life. In M. C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388, the Court enunciated the doctrine of "public trust", the thrust of that theory is that certain common properties such as rivers, seashores, forests and the air are held by the Government in trusteeship for the free and unimpeded use of the general public. The resources like air, sea, waters and the forests have such a great importance to the people as a whole, that it would be totally unjustified to make them a subject of private ownership. The State, as a custodian of the natural resources, has a duty to maintain them not merely for the 2 benefit of the public, but for the best interest of flora and fauna, wildlife and so on. The doctrine of 'public trust' has to be addressed in that perspective. 3 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
4. The talaab, is of historical and religious importance as the same is a part of "Sapt Sagar" as mentioned in Indian Cultural History. The "Sapt Sagar" includes Rudrasagar, Pushkar Sagar, Kshirsagar, Goverdhansagar, Ratnakar Sagar, Vishnusagar and Purshottam Sagar. The "Sapt Sagar" is also mentioned in Puranas and is related with various historical and mythological events. The fact of pollution and reasons for the same are also highlighted in the Ujjain Master Plan 2021 as follows:
(i) Filling of talab by various encroachers and public
(ii) The use of the tank as a garbage dump by the public,
(iii) The use of the same as a toilet by the population,
(iv) Permanent unchecked constructions that have been erected nearby.
The effect of the same has been stated as follows:
(i) extremely depleted quality of the water,
(ii) home to various diseases,
(iii) Mosquitoes. Under the head of scope for improvement it has been mentioned as:
(i) Cleaning of the sources form which water is supplied, to initiate pisciculture for ecological improvement,
(ii) To improve sewage,
(iii) To restrict all construction, purav and land filling near the talab in the future.
5. Learned Counsel for Collector, Ujjain has submitted that the Tehsildar concerned has prepared a detailed report with all the documents which depicts that there are various encroachments in the water body. It is further submitted that one Anil s/o Mannulal Joshi filed a Civil Suit before the Court of Civil Judge, Ujjain, M.P. as a civil case no. 3A/2019 which was heard and decided where it was found that 4 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
the land in question is pond and the property of the State of M.P and the plaintiff have no right title and interest of the property, thus the competent civil court has finally decided the matter.
6. The matter of illegal construction in violation of Environmental Laws has been dealt with by the Hon'ble Supreme Court of India in Civil Appellate Jurisdiction Civil Appeal No. 5041 of 2021 arising out of SLP (C) No. 11959 of 2014 decided on 31.08.2021 where Hon'ble the Supreme Court of India discussed the matter of illegal /unauthorised constructions as follows:-
"146 The rampant increase in unauthorized constructions across urban areas, particularly in metropolitan cities where soaring values of land place a premium on dubious dealings has been noticed in several decisions of this Court. This state of affairs has often come to pass in no small a measure because of the collusion between developers and planning authorities."
"147 From commencement to completion, the process of construction by developers is regulated within the framework of law. The regulatory framework encompasses all stages of construction, including allocation of land, sanctioning of the plan for construction, regulation of the structural integrity of the structures under construction, obtaining clearances from different departments (fire, garden, sewage, etc.), and the issuance of occupation and completion certificates. While the availability of housing stock, especially in metropolitan cities, is necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations - the protection of the environment and the well-being and safety of those who occupy these constructions. The regulation of the entire process is intended to ensure that constructions which will have a severe negative environmental impact are not sanctioned. Hence, when these regulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards.5
O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
Hence, illegal construction has to be dealt with strictly to ensure compliance with the rule of law."
"148 The judgments of this Court spanning the last four decades emphasize the duty of planning bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach by the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance. Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation. Hence, the law must step in to protect their legitimate concerns"
"149 In K. Ramadas Shenoy v. Chief Officer, Town Municipal Council, Chief Justice AN Ray speaking for a two judge Bench of this Court observed that the municipality functions for public benefit and when it ―acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess". This Court also held:
"27...The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the courts. If sanction is given to build by contravening a bye-law the jurisdiction of the courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative. (See Yabbicom v. King [(1899) 1 QB 444])."6
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".This Court held that an unregulated construction materially affects the right of enjoyment of property by persons residing in a residential area, and hence, it is the duty of the municipal authority to ensure that the area is not adversely affected by unauthorized construction".
"150 These principles were re-affirmed by a two judge Bench in Dr. G.N. Khajuria v. Delhi Development Authority9 where this Court held that it was not open to the Delhi Development Authority to carve out a space, which was meant for a park for a nursery school. Justice BL Hansaria, speaking for the Court, observed:
10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorised constructions are demolished on the force of the order of courts, the illegality is not taken care of fully inasmuch as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law.
This, however, seldom happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined (sic), retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."
"151. In Friends Colony Development Committee v. State of Orissa, this Court dealt with a case where the builder had exceeded the permissible construction under the sanctioned plan and had constructed an additional floor on the building, which was unauthorized. Chief Justice RC Lahoti, speaking for a two judge Bench, observed :7
O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
"24. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building."
Noting that the private interest of land owners stands subordinate to the public good while enforcing building and municipal regulations, the Court issued a caution against the tendency to compound violations of building regulations:
"25...The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions."
"152 In Priyanka Estates International (P) Ltd. v. State of Assam , Justice Deepak Verma, speaking for a two judge Bench, observed:
"55. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activitiesare required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is 8 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."
The Court lamented that the earlier decisions on the subject had not resulted in enhancing compliance by developers with building regulations. Further, the Court noted that if unauthorized constructions were allowed to stand or are ―given a seal of approval by Court‖, it was bound to affect the public at large. It also noted that the jurisdiction and power of Courts to indemnify citizens who are affected by an unauthorized construction erected by a developer could be utilized to compensate ordinary citizens.
"153 In Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai12, Justice GS Singhvi, writing for a two judge Bench, reiterated the earlier decisions on this subject and observed:
"8. At the outset, we would like to observe that by rejecting the prayer for regularisation of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the appellate authority have demonstrated their determination to ensure planned development of the commercial capital of the country and the orders passed by them have given a hope to the law-abiding citizens that someone in the hierarchy of administration will not allow unscrupulous developers/builders to take law into their hands and get away with it."
The Court further observed that an unauthorized construction destroys the concept of planned development, and places an unbearable burden on basic amenities provided by public authorities. The Court held that it was imperative for the public authority to not only demolish such constructions but also to impose a penalty on the wrongdoers involved. This lament of this Court, over the brazen violation of building regulations by developers acting in collusion with planning bodies, was brought to the fore-front when the Court prefaced its judgment with the following observations:
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O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
"1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise."
Finally, the Court also observed that no case has been made out for directing the municipal corporation to regularize a construction which has been made in violation of the sanctioned plan and cautioned against doing so. In that context, it held:
"56. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas."
"154 These concerns have been reiterated in the more recent decisions of this Court in Kerala State Coastal Zone Management Authority v. State of Kerala13, Kerala State Coastal Zone Management Authority v. Maradu Municipality, Maradu and Bikram Chatterji v. Union of India.
7. In the conclusion, Hon'ble the Supreme Court of India has directed to demolish the illegal and unauthorised construction and the cost of demolition and all incidental expenses including the fees payable to the experts are directed to be borne by the person who have constructed illegally.
10 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
8. This Tribunal vide order dated 05.05.2022 has directed the district authorities as follows :
The learned Collector and the Municipal Commissioner, Ujjain has made a request to grant some time so that the further action taken report may be filed. Accordingly, we direct as follows:
1. The Collector is directed to remove the encroachment from the ponds, water bodies in accordance with law.
2. The Collector, and the Municipal Corporation/Municipal Council, are directed to ensure that no solid waste should be thrown in the pond area and in case if it is found that there is a violation of Solid Waste Management Rules, 2016, State Pollution Control Board is directed to take necessary action, initiating prosecution as well as calculation and realisation of Environmental Compensation as per parameters laid down by the Central Pollution Control Board.
3. The Collector, and the Municipal Corporation/Municipal Council, are directed to ensure that there shall not be any discharge of untreated sewage water in to the water body/pond and if there is any violation of the Water (Prevention and Control of Pollution) Act, 1974 or direction issued by the Hon'ble Supreme Court of India and Principal Bench of this Tribunal, environmental compensation at the rate prescribed must be assessed and realised.
4. There must be a provision of Treatment Plant to treat the water and Municipal Corporation shall ensure installation of STP and also proper functioning of the STP already installed and in the meantime the insitu remedial process may also be considered where there is no STP.
5. In light of the settled pronouncement of Hon'ble the Supreme Court in Goel Gang Developers India Pvt.
Ltd. vs. Union of India referred above with regard to the calculation of environmental compensation, 10% of the project cost shall be assessed and realized from the polluter. State Pollution Control Board is directed to proceed and to exercise its statutory duty to initiate the proceedings of prosecution as well as the calculation and 11 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
assessment of the realization of environmental compensation in accordance with law.
6. A copy of the order be sent to the Secretary (Environment), State of Madhya Pradesh who shall monitor or may constitute a 76 committee or direct the authorities concerned to comply the order and remove the encroachment on the State land/water bodies which was found unauthorized and illegal. He shall monitor periodically and ensure the removal of encroachment at the earliest in due process of law.
7. The Member Secretary, Madhya Pradesh Pollution Control Board is directed to constitute a Committee of three Regional Officers including the Regional Officer of Ujjain to implement the rule of law and enforce the environmental laws and to ensure that there shall not be any discharge of untreated water into the water bodies and there shall not be any discharge of solid waste into the water bodies as narrated above. In case of encroachment or discharge of solid waste or liquid waste in violation of Environment rules necessary action, prosecution in addition to the realization of environmental compensation must be initiated in accordance with the environmental rules.
9. Vide letter correspondence dated 16.10.2024 the Sub Divisional Magistrate / Anuvibhagiya Adhikari, Ujjain City, District Ujjain communicated that in the settlement year 1927 the aforementioned survey which was 36 beghas 18 Biswa was recorded as water body/talab, similarly in the Khasra year 1950-51 a road was constructed but the nature of the land was recorded as water body/pond. In the Gazette Notification settlement 1925 and 1927 the area was recorded as talab and milkiyat of Sarkar and in possession of the Municipal Council. After coming into existence of the Indian Constitution Article 21, 47, 48 A and 51 (A) (g) give a clear mandate to the State to protect and improve the environment and to safeguard the forest, lakes, river, water bodies and wildlife. It is a settled law and legal preposition that once the property is vested in the State 12 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
Government nobody can transfer it except without the procedure established by law and at no point of time State Government had ever notified for transfer of this land. Ownership can be changed only after transfer of the land, exchange of the land or by State Policy and there is no record that State has ever transferred this land to anybody else. Since, it is a public property and water body and in view of the settled legal position and pronouncement by the Supreme Court of India in his Hinchaha Lal case the land cannot be alienated against the provisions of law. The encroachments of land that too on public property or the water bodies cannot create any legal right in favour of illegal occupant or encroachers. The District Magistrate/Collector is custodian of the property of the State within the territorial jurisdiction of the district accordingly the collector is responsible to protect the land of the State and in case of any encroachment he have to remove the encroachments and take into possession of the State land. If encroachers (however long period may be) are permitted to continue the illegal possession on the ground of any mercy or long possession then it is indirectly promoting the illegal encroachment of the public land and in these circumstances, it will be very difficult to protect the State land from encroachments. The city of Ujjain has historical religious background and these Sapta Sagar are not only important but requires to be maintained for public purposes so that the crowd during the festive seasons or Singhasth may be properly maintained.
10. Learned Counsel for the State Pollution Control Board has filed the detailed report with written report Annexure dated 02.01.2025 with repetition of facts that total area was recorded as water body/pond in the settlement year 1927 and further it was in the name of State in the record year 1950-51. The conclusion as submitted by the 13 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.
Anuvibhagiya Adhikari, Ujjain City, District Ujjain discloses that nature of water body can not be changed and the illegal encroachments is required to be removed by the Municipal Corporation.
11. The Collector is the custodian of property of the State and Municipal Corporation is authorised and directed by the State to maintain it. Thus, it is the responsibility of the Municipal Corporation/Municipal Council/Collector concerned to remove the encroachment and to maintain the water body by means of identification / demarcation and removal of encroachments in due process of law. Since the matter requires urgent action by the District Administration the Collector is personally responsible for removal of encroachment within a time frame. Action taken report be filed within two weeks.
List it on 4th February, 2025.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 3rd January, 2025 O A No.11/2022(CZ) K 14 O A No.11/2022(CZ) Bakir Ali Rangwala vs. State Of M.P. & Ors.