National Green Tribunal
Machindra Mahadeo Shinde vs Ministry Of Heavy Industries And Public ... on 30 April, 2024
Item No.7 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Misc. Application No.15/2023(WZ)
I.A. No.34/2024(WZ)
In
Original Application No.01/2023(WZ)
Imran Husen Pathan & Ors.
.....Applicant(s)
Versus
The Principal Secretary, MoEF, GOI & Ors.
....Respondent(s)
Date of hearing: 30.04.2024
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Ms. Pratiksha Kale, Advocate
ORDER
1. In compliance with our previous order dated 18.04.2024, the learned counsel Ms. Pratiksha Kale representing applicants has filed an amended copy of the present misc. application, although the same does not contain all the names of applicants as well as respondents in detail, which we find mentioned at page nos.950 to 952 of the paper book, which ought to have been mentioned in this amended memo, however, prayer clauses contained therein are as per our direction. She undertakes to add all these parties in this amended memo, which are mentioned at page nos.950 to 952 of the paper book, today itself and file an amended copy of memo of the present misc. application again complete in all respect.
2. Looking to the fact that the present misc. application has been adjourned for compliance to be made by the learned counsel for applicants and the same could not be taken up for hearing because of Page 1 of 7 this infirmity, we concede to the prayers made by the applicants to hear the matter on merit as regard its admission.
3. The present misc. application has been filed with the prayers to the effect that this Tribunal may grant an interim/temporary injunction against the demolition proceedings initiated by the respondent No.6- The District Collector, Aurangabad and respondent No.7- The Municipal Corporation, District- Ahmednagar against the appellants' properties situated at Survey No.38/2+3+4, Katwan Khandoba Road, Nalegaon, Ahmednagar; and a declaration may be issued to the effect that the constructions made by the applicants are not in Sina River bed, hence the order dated 31.03.2023 passed by this Tribunal in Original Application No.01/2023(WZ) is not binding on the applicants.
4. The learned counsel for applicants submits that the present misc. application has been moved pursuant to the order dated 19.10.2023 passed by the Hon'ble Supreme Court in Civil Appeal No.6899 of 2023, granting liberty to the applicants to approach this Tribunal to seek review/recall of the Judgment/ Order dated 31.03.2023 passed by this tribunal in Original Application No.01/2023(WZ).
5. It is alleged in the present application that the applicants were not made parties to the proceedings in Original Application No.01/2023(WZ) nor were given opportunity of hearing at any stage, while ordering removal of encroachments from Survey No.38, Nalegaon, Ahmednagar, Maharashtra.
6. It is further alleged in the present application that Original Applicant in Original Application No.01/2023(WZ) had approached this Tribunal only under the guise of protecting the environment but was mainly aggrieved by a property dispute with his own brother, who is co- Page 2 of 7 owner on Survey No.38. The original applicant had sought demarcation of the river bed, but in fact, his intent was to harass his own brother, who has the property in Survey No.38. This application also contains facts as to how the applicants in the present misc. application came to be owners of the said land in Survey No.38, with which this Tribunal has no concern because the Tribunal is constituted for taking into consideration the environmental violation aspects.
7. The applicants are claiming to be innocent buyers of the plot in question. It is further alleged in the present misc. application that this Tribunal vide order dated 09.01.2023 in Original Application No.01/2023(WZ) had constituted a three members Committee with a direction to submit its report relating to the encroachment in Sina River in Nalegaon, Ahmednagar, Maharashtra. The Municipal Corporation, Ahmednagar issued notices to the applicants under Section 52, 53 and 54 of the Maharashtra Regional and Town Planning Act, 1996 and Section 260 (1) (2) and 478 of the Maharashtra Municipal Corporation Act, informing the applicants that their constructions were unlicensed/unauthorized and that the construction permission should be obtained within 30 days from the receipt of the notice. This Tribunal in Original Application No.01/2023(WZ) directed the District Collector, Ahmednagar to ensure that blue line and red line of the Sina River be also drawn and whatever illegal constructions are found within the bed of River Sina, be immediately removed and that no further new constructions be allowed to be done there, as the same being prohibited area.
8. It is further mentioned in this application that pursuant to the said order passed in Original Application No.01/2023(WZ), Notices were received by the applicants herein from the Office of Municipal Page 3 of 7 Corporation, Ahmednagar, stating that a demolition drive to demolish the unauthorised construction in Survey No.38, Nalegaon shall be carried out. Pursuant to that, applicants immediately approached the Court of Civil Judge, Senior Division, Ahmednagar on 19.09.2023 by filing RCS No.510 of 2023, seeking injunction against the demolition order dated 18.09.2023 issued by the Municipal Corporation. But the same was rejected. Thereafter, against the order dated 31.03.2023 passed by this Tribunal in Original Application No.01/2023(WZ), applicants approached the Hon'ble Supreme Court by filing an appeal and the Hon'ble Supreme Court vide order dated 19.10.2023 gave liberty to the applicants to seek review/recall of the Order/Judgment dated 31.03.2023.
9. It is further mentioned in this application that Survey No.38, Mouje Nalegaon, Dist Ahmednagar is in two parts i.e. Survey No.38 & Survey No.38/2/3/4. But the proceeding of Original Application No.01/2023(WZ) related to Survey No.38 and that nowhere in record, it is mentioned that the said case related to Survey No.38/2/3/4 of Mouje Nalegaon, Ahmednagar as well. The applicants are claiming to be owners of Survey No.38/2/3/4, which they had purchased from some other persons long back.
10. It is further mentioned in this application that the applicants had applied to the Ahmednagar Municipal Corporation for grant of permission to construct the building on the said land. The Ahmednagar Municipal Corporation on 13/03/2023 wrote a letter to the applicants that within a period of 30 days, they should apply for regularizing the construction. Thereafter as per the order, applicants have paid construction permission fees and documents but the Ahmednagar Municipal Corporation had not given the permission, stating that the said land is falling in Sina river bed. Thereafter, the applicants had moved an application to the Town Page 4 of 7 Planning Office on 03/03/2023 asking for record to be provided to them regarding the Sina river bed. But the same was not supplied. The applicants had also tried to obtain a copy of the said documents under RTI from the Land Record Officer, which too was not provided, saying that no record is available in that regard.
11. It is further mentioned in this application that the Original Application No.01/2023(WZ) had come with concealment because nowhere it was mentioned therein that Survey No.38 was in two parts.
12. After having gone through the above-mentioned pleadings, we are of the view that it appears that applicants are claiming relief against the demolition, which has been initiated by the respondent No.6- The District Collector, Aurangabad and respondent No.7- The Municipal Corporation, District- Ahmednagar, pursuant to the order dated 31.03.2023 passed by this Tribunal in Original Application No.01/2023(WZ) on the ground that their land i.e. Survey No.38/2/3/4 of Mouje Nalegaon, Ahmednagar does not lie in the river bed of Sina and that the same is being ordered to be demolished pursuant to this Tribunal's order, which she is praying to be recalled/set aside after the applicants having obtained an order from the Hon'ble Supreme Court in that regard.
13. We are also of the view that in Original Application No.01/2023(WZ), relief prayed was that the respondent No.1- the Principal Secretary, Ministry of Environment and Forest, New Delhi, respondent No.2-CPCB, respondent No.3-Envt. Deptt., respondent No.4- MPCB, respondent No.5-The District Collector- Ahmednagar District and respondent No.6-AMC be directed to take necessary steps against the encroachment in Survey No.38 of Mauje Nalegaon at Ahmednagar City by removing all encroachments in the Sina River Bed and make the same Page 5 of 7 encroachment free. After having considered the same, this Tribunal had passed following order:-
"9. We find from the above report that the Joint Committee has found that there are encroachments in Survey No. 38, Mouje Nalegaon, Ahmednagar by way of old encroachments of building/properties and construction of tin shed was in progress. It has also been found that filling of some portion of the Seena River Bed is being done by debris, bricks, sand, soil and other materials etc. The demarcation of the boundary and stone marking are yet to be done by the Land Revenue Department. The Survey No. 38 is earmarked as Green Belt, therefore, the Corporation/ Respondent No. 6 could not give permission for construction, despite that the fact is that in one acre area, land is filled with sand, bricks, rocks and other materials. We are agreeing with the proposal given in this report, which says that the District Collector, Ahmednagar and the Commissioner, Ahmednagar Municipal Corporation be ordered to ensure demarcation of the boundaries of the River bed of River Seena and removal of the encroachments found there-in.
10. We further direct that the District Collector shall ensure that blue line and red line of the said river be also drawn and whatever illegal constructions are found within the bed of River Seena, be immediately removed and that no further new construction be allowed to be done there, the same being prohibited area.
11. We direct the District Magistrate to ensure that this task is completed within a period of 03(three) months considering the fact that monsoon is coming soon and submit a report to this Tribunal within a period of one week thereafter."
14. The pleadings of Original Application No.01/2023(WZ) indicates that prayer was not sought against any specific individual, rather it was a broad spectrumed prayer to the effect that any encroachment in the river bed of Sina should be directed to be removed, and that was considered in the light of the Joint Committee Report and instructions were issued to the District Collector, Ahmednagar to ensure that blue line and red line of the said river be drawn and whatever illegal constructions were found within the bed of River Sina, the same shall be immediately removed. It appears that by this order, the applicants are claiming to be suffering on account of their properties being found to fall within the red line or blue line of the river bed of Sina River because of which probably the notices might have been issued for demolition of the same. There was no Page 6 of 7 occasion for us to implead the present applicants in the said Original Application because relief was not sought against any particular individual. Therefore, we find that the plea taken by the applicants before the Hon'ble Supreme Court was also a kind of concealment not disclosing that the relief sought was in general against all, who had illegal constructions in the river bed of River Sina and not against the applicants in the present misc. application. But be that as it may, we have to honour the said order passed by the Hon'ble Supreme Court. Therefore, we direct the learned counsel for applicants to submit an affidavit clearly stating therein as to whether the construction, which is being said to have been ordered to be demolished by the District Collector, is lying in blue line and red line of the River Sina or not.
15. We direct the Registry to issue notice to the District Collector, Ahmednagar as well as the Chief Engineer, Water Resource Department (Irrigation Department), Ahmednagar to submit before us their reply in respect of the allegation made by the applicants in the present misc. application and particularly, with respect to the fact whether the property, which is being claimed by the applicants to be the owners of, falls within blue line or red line of the River Sina or not and whether the said line has been drawn or not. The proof thereof shall also be placed before us by the next date.
Put up this matter for further consideration on 27.08.2024
16. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM April 30, 2024 Misc. Application No.15/2023(WZ) I.A. No.34/2024(WZ) In Original Application No.01/2023(WZ) P.Kr Page 7 of 7