National Green Tribunal
Sunit Kumar Mallick Chowdhury. Son Of ... vs The State Of West Bengal Service Through ... on 3 January, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 25/2016/EZ
&
M.A. No. 814/2016/EZ, M.A. No. 25/2017/EZ, M.A. No. 12/2018/EZ,
M.A. No. 13/2018/EZ, I.A. No. 72/2019/EZ, I.A. No. 82/2019/EZ
& I.A. No. 10/2020/EZ
Sabyasachi Mallick Chowdhury Applicant
Versus
State of West Bengal & Ors. Respondent(s)
Date of hearing: 03.01.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
Applicant: Mr. Brijendra Chahar, Senior Advocate along with Mr. Ashok
Prasad, Advocate
Respondent: Mr. Sudip Kumar Dutta, Advocate for Respondent No 1 to
4,9,10,11,13,
Mr. Dipanjan Ghosh, Advocate for Respondent No.5&6
Mr. Gopal Chandra Das, Advocate and Mr. Sibojyoti Chakraborti,
Advocate for Respondent No.7&8
Mr. Jayanta Mitra, Senior Advocate along with Mr. Ankit Sureka,
Advocate for Respondent No. 14
Ms. Saheli Sen, Advocate for R.15
ORDER
1. Issue raised in this application relates to restoration of a wetland - Ukil Bheri, situated at Mouza-Nimokpoktan, Pagladanga, Dihi Panchanangram, near Chingrighata, within Police Station Pragati Maidan, Ward No. 57, Kolkata Municipal Corporation (KMC), measuring about 60 bighas.
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2. The application was filed before the Eastern Bench of this Tribunal on 17.02.2016. Averments in the application in brief are that respondent nos. 14 to 22, Metropolitan Co-Operative Housing Society Limited and its office bearers and members are illegally constructing boundary wall on the bank of the water body since 17.10.2015. Complaint was made to the Police Station, Pragati Maidan in October, 2015 but no action was taken. Further construction was attempted on 05.02.2016 and again complaint was made but the construction continued. The applicant has a license from the Fisheries Department and such right is violated by the construction. The applicant has also referred to news article dated 04.07.2013 in Times of India under the caption "Ukiler Bheri filled up under councilor's nose, KMC clueless" and further article dated 17.07.2013 in Times of India captioned "Ukiler Bheri gets a second life". Encroachment was on Dag No. 268 measuring 2 bighas. The water body in question is protected under the East Kolkata Wetlands (Conservation and Management) Act, 2006 and the Wetlands (Conservation and Management) Rules, 2010. The applicant has relied upon photographic evidence and also time series Google Earth images to show encroachments.
3. The matter has been considered by this Tribunal in the last about six years by several orders. The parties have filed their respective versions. In the course of this order, reference will be made to the relevant orders and pleadings of the parties.
4. Vide order dated 25.02.2016, the application was admitted and notice was issued to the respondents. Direction was also issued to file status report by Chief Secretary, West Bengal, Municipal Commissioner, KMC, the East Kolkata Wetlands Management Authority, State PCB, the 2 Director General (Project Management Unit) KMC and the Commissioner of Police, Kolkata Police. Wetland Management Authority was directed to mention whether the water body in question is part of the wetland. Directions were also issued against illegal filling up of the waterbody.
5. On 12.07.2016, the Tribunal considered the prayer for interim relief and observed that no order was necessary in the hope that status quo will be maintained in the matter of filling up of the waterbody in question. On 20.07.2016, the Tribunal appointed Surveyor for measurement of the waterbody and to ascertain the encroachments. Status quo was directed to be maintained in the meanwhile. On 07.02.2017, the Tribunal considered the grievance against violation of the order of status quo and directed jurisdictional ADM and Police Station to verify the allegation and stop any illegal construction and file an action taken report. On 06.11.2017, the application was dismissed for non-appearance of the applicant but the said order was recalled on 11.12.2017 which was reiterated on 23.04.2018. Against the order of the Tribunal dated 23.04.2018, Civil Appeal No(s). 6191-6192/2018, Metropolitan Co- operative Housing Society Limited & Anr. vs. Sunit Kumar Mallick Chowdhury & Ors. was dismissed on 03.08.2018 by the Hon'ble Supreme Court and WP No. 11287(W) of 2018, In re: Smt. Supriti Saha vs. The State of West Bengal & Ors. was dismissed by the Kolkata High Court on 12.09.2018.
6. Affidavit has been filed by the State PCB on 29.03.2016, with an inspection report as follows:-
"Observation:
The alleged Ukhil bheri (also known as Moni Babu's bheri) was observed to be partially filled up by construction debris side. The major portion of the water body is covered with water hyacinth. The 3 said bheri is surrounded by Metropolitan Cooperative Housing Society on eastern side, Chingrighata on northern side, Pagladanga on western side and nearby area of E M Bypass on southern side. Bamboo fences and a temporary hut were also observed on the filled up area. Nearby residents confirmed that the bheri has been partially filled up with construction debris during the recent times. However, they remained silent about the persons filling up the bheri. The filled up area of the bheri lies on the side of Metropolitan Cooperative Housing Society. During inspection, the office of the Metropolitan Cooperative Housing Society was visited. Sri Paritosh Dutta Roy, Board Member of the said Society was contacted over telephone. He confirmed that the visited bheri was Ukhil bheri and he is ignorant of any filling up of the Bheri. During the visit, 02 nos. of photographs were taken and they are annexed with the report."
7. The Chief Secretary, West Bengal, vide reply dated 06.05.2016 made a statement that Mouza-Nimokpoktan, JL no. 1, Pagladanga, Dihi Panchanangram, P.S. Pragati Maidan is outside the East Kolkata Wetlands and therefore, the matter has been referred to Additional Chief Secretary, Fisheries Department, Principal Secretary, Land & Land Reforms Department, Government of West Bengal and the District Magistrate, District 24 Parganas (South) with a request not to allow filling up of the water body, without consulting the Department of Environment. Vide affidavit dated 28.11.2016 of the ADM of the area, it is mentioned that a part of plot no. 268 has been filled up and encroachments made. Plot no. 267 was part of embankment of the water body. The relevant statement is reproduced below:-
"8. Upon reconciliation of the survey report with regard to plot nos. 267 and 268 it was observed that plot 267 is classified as 'Pukur Par'. Out of total 4.45 acres, a quantum of 1.22 acres of land is being used as 'Pukur Par'. The plot 268 constitutes a part of 'Ukil Bheri' and a quantum of 2.57 acres out of total area of 9.50 acres has been filled up and encroachments are made there on. The portion which has been filled up is contiguous to the land learnt to have belonged to the Metropolitan Cooperative Housing Societies Limited. Further, it is to be noted that the premises bearing no. CZ-28, Sector B, Canal South Road, District -South 24 Parganas, Kolkata-105 of Respondent no. 15 is not situated at filled up portion of plot
268. A total of 174 points in the field was covered by ETS machine which was used in the entire survey process." 4
8. With the said affidavit, a sketch map and present position of the survey report has been filed as Annexure-R 4/4:-
"The survey work started in presence of representatives of both sides on 20.10.2016. We started the survey work after consulting both parties in the field and representatives of both the parties present in the field till the completion of the work. After reaching a consensus that the entire water body comprising plot no. 268 and its adjacent plots are to be surveyed, the survey work started. They survey of water bodies comprising plot no. 268 and others has completed in presence of representatives of both sides on 24.10.2016. The authorised surveyor of both sides were present all along and they put their signature on the daily proceedings. They are also allowed to check every point at every observation. We covered total 174 points in the field by the ETS machine. A quantum of 2.57 acres out of total area of 9.50 acres has been filled up and there are some encroachment. Further, it is to be noted that the premises bearing no. CZ-28, Sector-B, Canal South Road, District-South 24-Parganas, Kolkata-700105 of Respondent no. 15 does not lie on the filled up portion of plot no. 268."
9. Report of the ADM filed on 05.08.2018 mentions the encroachments as follows:-
"A. Construction work of two buildings was found to be under progress in RS Plot No. 268, Out of these two, one is a G+4 building, which appears to be almost completed. The other building has been risen up to 2nd floor. Its construction work has not been completed. The two buildings seem to have been constructed over the filled up portion of the water body of RS Plot No. 268. The location of these two under-construction buildings have been shown on the previously submitted survey sketch map as prepared by the Revenue Officer and TA on eye- estimation.
Copy of the said sketch map as prepared by Revenue Officer and TA is annexed herewith and marked as R-1/2.
B. The exact quantum of filled up portion of the water body till date can be ascertained only by performing detailed survey of the land-in- question."
10. The version of the respondent nos. 14 to 22 - the Housing Society and its Members (PP) is that they have not encroached upon wetlands. They have purchased 4.45 acres in Dag No. 267 which is not part of the 5 water body. Reference has been made to the KMC affidavit dated 03.11.2017 that no construction was found at the time of inspection. In further affidavit filed on 08.08.2019, the KMC has stated that it has accorded sanction for construction on 05.10.2016 and 01.09.2016 to ground plus 4 and ground plus 3 buildings without any information about proceedings before this Tribunal. The land in question appears to be part of Dag no. 267. The sanction did not authorize construction contrary to the status quo order.
11. In the rejoinder filed by the applicant on 31.01.2021, a copy of sale deed dated 11.05.2011 between the Housing Society and its Members, Debasis Das has been filed stating as follows:-
"xxx ..............................xxx....................................xxx ...Metropolitan Co-operative Housing Society Limited became the absolute owner of the western portion of the Taki Estate Bheri Land(Marshy) which constitutes entire C.S. Dag Nos. 201, 141 and 140 of District Survey and Settlement Khatian Nos. 2 and 43 corresponding to the entire R.S. Dag Nos. 248, 186, 187 and 267 recorded in the revised Settlement Khanda Khatian Nos. 407, 408, 352 and 353 of Mouza Nimakpoktan under Police Station - Jadavpur (Old Tollygunj) and at present Tiljala, Touzi Nos. 173, 1298/2833, J.L. No. 1 under Alipore Collectorate, District 24-Parganas (now District South 24-Parganas) as well as the Western portion of the lands of C.S. Dag No. 31 District Settlement Khatian No. 21, Touzi No. 173, J.L. No. 2, R.S. No. 236 of Mouza Dhapa under Police Station Jadavpur (Old Tollygunge) and at present Tiljala under the Alipore Collectorate, District 24-Parganas (now South 24- Parganas) corresponding to the Western Portion of the land included in the revised settlement khatian Nos. 654 (Khanda) 609 (Khanda) of the same Mouza, same Police Station and same R.S. Number under the same collectorate and District which corresponds to western portion of R.S. Dag Nos. 87 and it was for greater clearance demarcated by a common boundary line passing North to South through the said Dag No. 87."
12. In the Schedule to the said document, boundaries of the land are mentioned as follows:-
"On the North: By Plot No. CZ15A
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On the South: By 30' Wide Common Passage
On the East: By Plot No. CZ14
On the West: By Plot No. CZ14B (now under water)"
13. Similar other sale deeds have been filed in favour of the Members of the Housing Society.
14. We have heard learned Counsel for the parties and perused the record.
15. Learned Counsel for the applicant submitted that in violation of the order of this Tribunal to maintain status quo, 16 houses have been constructed. There are two buildings of ground plus 2 and ground plus 4. On eight floors, two houses each have been constructed. The construction started in the year 2018 but only 2 persons have so far shifted their residence as the construction is not habitable. He has drawn our attention to the orders of this Tribunal, the Hon'ble Supreme Court and the High Court and findings to the effect that construction was being raised as already noticed. It was submitted that constructions are not only against orders of this Tribunal but also against statutory rules mandating protection of wetlands and other water bodies as they perform important ecological functions.
16. As against above, learned Counsel for the Project Proponents submitted that no construction has been raised in Dag no. 268 which is a water body. Construction in Dag no. 267 is outside the water body and not in violation of order of status quo nor in violation of statutory Rules on the subject.
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17. We have considered the rival submissions. Question for consideration is whether Dag number 267 is part of wetland and whether construction in question is permissible.
18. Proper demarcation of boundaries of the wetland and the site of construction are not clear. While prohibition in Dag number 268 is admitted by the Project Proponent, construction is claimed to be in Dag number 267, which according to the Project Proponent is not prohibited.
19. Having regard to the description of land in the Sale deeds and inspection reports referred to above, prima facie the area where construction has been made appears to be part of wetland or its buffer zone, zone of influence or catchment area, attracting prohibition under the Rules. The Wetland Authority is not a party nor the parties have focused on compliance status with reference to the Rules.
20. The Hon'ble Supreme Court vide orders dated 03.04.2017 and 04.10.2017 in M.K. Balakrishnan & Ors. v. Union of India & Ors.1, inter- alia, held that the principle of Rule 4 of the 2010 Rules will apply to 201503 wetlands, mapped by the Union of India. It was directed that the mapped wetland will continue to be protected on the principle of Rule 4 of 2010 Rules. Following the said directions, this Tribunal vide order dated 25.11.2021 in O.A. No. 351/2019, Raja Muzaffar Bhat vs. State of Jammu and Kashmir & Ors. directed monitoring of compliance by MoEF&CC as follows:-
"16. The Joint Secretary, MoEF&CC stated that water being State subject, primary responsibility of handling the matter is of the States. Similar approach was disapproved by the Hon'ble Supreme Court in observations already quoted earlier. Needless to say that Wetland Rules, 2017 have been framed under the Environment (Protection) Act, 1 (2017) 7 SCC 805 8 1986 under which there are statutory powers with the Central Wetland Authority to oversee the protection of wetland. It is not subject of 'water' alone. 'Environment protection' is covered by Central laws on account of International obligations under Entry 1 List 13 of Schedule 7 to the Constitution. Attitude of avoiding responsibility cannot thus be appreciated. CWA in the MoEF&CC needs to monitor compliance of the Wetland Rules throughout the country by periodical interaction atleast once in a month.
17. The suggestion of the applicant is that significant wetlands need not be limited to 363 and more wetlands on examinations be added to the list from time to time for better protection by preparing appropriate action plans under the programme for protection of the significant wetlands. Further, apart from figure of 2.01 lakh wetlands already mapped, to which the Wetland Rules, 2017 are applicable even if no separate Notification in terms of 2017 Rules in view of directions of the Hon'ble Supreme Court in M.K. Balakrishnan, supra, it may be possible to identify more such wetlands. Infact, the report of the MoEF&CC itself mentions that some States have already identified larger number of wetlands than earlier mapped. In UP itself, 133484 wetlands are entered in the Revenue Records which are being protected by the State. On the same pattern, all the States/UTs need to map all available wetlands in their jurisdiction and file report with the National Wetland Authority so that National Wetland Authority can prepare an exhaustive inventory of wetlands in the country and extend protection to all such wetlands. These suggestions need to be considered by the MoEF&CC.
18. District Environment Plan of each District in terms of order of this Tribunal dated 05.07.2021 in OA 360/2018, Shree Nath Sharma vs. Union of India & Ors. should also cover the wetlands in the District. If necessary, the said plans be revised accordingly by the District Magistrates concerned by providing that the core activity for conservation and protection of wetlands may primarily focus on not discharging of sewage, disposal of solid waste and other wastes, preventing siltation, demarcation of wetlands/flood protection zone and removal of encroachments. There should be regular monitoring of water quality under water quality management programme at strategic locations (around 10 locations) to ensure that it is compliant with TC/FC norms. Water quality of the wetlands with respect to BOD needs to be less than 3 mg/l, feacal coliform should meet norms and contamination due to toxic constituents either directly or through runoff from the catchment should be prevented. Biodiversity of the wetlands needs to be maintained. Monitoring of steps for compliance of Rules in relation to such Wetlands ought to be at District level by the District Magistrate, at State level by State Wetland Authority and at National level by National Wetland Authority. We are confident that such initiatives in monitoring will go a long way in protecting the Wetlands which have significant environmental functions."9
21. We note that though at the time of passing of the order by the Hon'ble Supreme Court, the applicable Rules were 2010 Rules, the same now stand replaced by "The Wetlands (Conservation and Management) Rules, 2017". In substance, restrictions in Rule 4 of 2017 Rules are similar to the restrictions in Rule 4 of the 2010 Rules. Definition of 'wetland' also is similar, which covers marsh land also.
22. In view of above, we consider it necessary to direct an eight-member Joint Committee of National Wetland Authority, State Wetland Authority, CPCB, MoEF&CC, State PCB, Director Environment, West Bengal, District Magistrate and SSP, South 24 Parganas to ascertain the factual position about the status and extent of the wetland and whether prohibition against construction applies to the area in question. If prohibition is applicable, remedial action for protection of the wetland in question be taken by the concerned statutory authority. The CPCB and the State Wetland Authority will be the nodal agency jointly for coordination and compliance. The meeting of the Committee may be held within two weeks. The Committee may undertake visit to the site and interact with the stakeholders including the applicant and the Project Proponents. The Committee may thereafter, take further measures in accordance with law. The Committee may conclude its proceedings preferably within three months.
23. In view of our prima facie finding that the area is wetland and prohibition against construction is applicable, pending further action, no further activity be undertaken in the area in question, including in Dag no. 267 and 268. If the Committee finds the constructions are in prohibited area, the Committee will ensure removal thereof for restoration of the wetland in question.
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The application is disposed of.
A copy of this order be forwarded to National Wetland Authority, State Wetland Authority, CPCB, MoEF&CC, State PCB, Director Environment, West Bengal, District Magistrate and SSP, South 24 Parganas, by e-mail for compliance.
The parties are at liberty to file their respective versions along with relevant documents including satellite imageries/photographs before the Committee.
All pending M.A.s and I.A.s will also stand disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM B. Amit Sthalekar, JM Dr. Nagin Nanda, EM Mr. Saibal Dasgupta, EM January 03, 2022 Original Application No. 25/2016/EZ SN 11