National Green Tribunal
Biranchi Narayan Mahapatra vs State Of Odisha on 24 August, 2017
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BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
Original Application No. 82/2015/EZ
BIRANCHI NARAYAN MAHAPATRA
VS
STATE OF ODISHA & ORS
CORAM: Hon'ble Mr. Justice S.P.Wangdi, Judicial Member
Hon'ble Prof. (Dr.) P. C. Mishra, Expert Member
PRESENT: Applicant : Mr. Biranchi Narayan Mahapatra, In person
Respondent No. 1 & 2,4 & 6 : Mr. S.P.Mishra, advocate General
Mr. Pravat KumarMuduli, Advocate
Respondent No. 3 : Mrs. Papiya Banerjee Bihani, Advocate
Respondent No. 4 : None
Respondent No. 5 : Mr. Prasanta Kr. Sen, Advocate
Mr. Ramesh Shaw, Advocate
Orders of the Tribunal
Date & Remarks
Item No. 1
24th August, 2017. This OA had been preferred by the applicant being
anxious of the survival of the natural ponds situated in
the Berhampur Municipal Area as it was alleged that
there were large scale encroachments of the water
bodies and its embankments by unauthorised persons.
Notices having been issued, the State respondents
were directed to file status report. The details of the
encroachers, their names and addresses were also
sought for which the State authorities furnished for our
consideration. Later it was revealed that there were
altogether 42 ponds which were encroached upon. The
State Respondents expressed their difficulty in evicting
all the encroachers at a short notice as the number of
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the encroachers was quite large and in order to
accomplish the task, they would require a reasonable
period of time. The onset of the monsoon was cited as
another reason as a hindrance in the early completion
of the work, as would be apparent from our order
dated 8.9.2016. It had been expressed that as the rainy
season was likely to continue till the middle of October,
2016, it would be possible to complete the evictions
only after that. As permitted by us steps were thus
taken gradually by the State and batches of
encroachers were evicted but the completion of the
process was delayed as some of the encroachers had
approached the Hon'ble Orissa High Court against the
State's action and had obtained orders of stay.
Upon hearing the Ld. Counsel for the State we
could gather that the anxiety of the Hon'ble High Court
was on the denial of opportunity of hearing to the
encroachers by the State before the action for the
eviction was taken against them. There being a
possibility that the Hon'ble High Court may not have
been informed of the present proceedings, on 15th
March, 2017, the following order was passed :-
" Affidavit filed by Mr. Ram Chandra Pasupalak, Ld.
advocate appearing on behalf of the respondent No. 5,
the Municipal Commissioner, Berhampur Municipal
Corporation, in compliance of our order dated 24.1.2017,
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is ordered to be taken on record.
We are, however, not satisfied with it as it does not
fully comply with our direction. In the affidavit, it has
been informed that the encroachers of some of the
ponds have approached the Hon'ble Odisha High Court
and obtained orders of stay in a number of writ petitions
by which the respondents have been directed not to
proceed with the eviction proceedings. On a perusal of
the affidavit, we have noticed that the writ petitions were
filed on 24.1.2017 i.e. on the very same day our aforesaid
order was passed. It may be relevant to note that our
order dated 24.1.2017 is one in continuation of the
orders passed earlier from time to time commencing
from 8.9.2015.
" ...... The matter before us involves violation
of environmental laws inasmuch as important
water bodies under Berhampur Municipal
Corporation in the district of Ganjam are being
encroached upon by a number of persons
jeopardising their very existence apart from
causing pollution thereto. It is, therefore, needless
to observe that the orders had been passed within
the confines of the jurisdiction of this Tribunal
which the Municipal Corporation was expected to
comply by following the due process of law.
We also have noted an order bearing No.
732/Rev. Dated 08.03.2017 issued by the
Collector, Ganjam which reads as follows :-
ORDER
To comply the order of the Hon'ble National Green Tribunal in OA No. 82/2015/EZ, the following committee is hereby constituted under the Chairmanship of Addl. District Magistrate (Revenue), Ganjam to examine the orders of the Hon'ble Green Tribunal, Eastern 4 Zone Bench, Kolkata.
1. Addl. District Magistrate (Revenue)
-Chairman
2. Commissioner, Berhampur Municipal Corporation
- Member
3. Secretary, Berhampur Development Authority
- Member
4. Tahasildar, Berhampur
- Member
5. Executive Engineer Irrigation, Berhampur -Member
6. Regional Officer, State Pollution Control Board
- Member The Committee will visit different sites in question and examine the litigation pending before the Hon'ble High Court of Odisha as reported by the Berhampur municipal Corporation to carry out the orders of the Hon'ble National Green Tribunal.
Further, the committee shall submit their views after examining at ground level as well as the cases pending before the Hon'ble High Court to the undersigned for further steps to be taken in the matter.
COLLECTOR, GANJAM "
As would appear from the above, by the aforesaid order a committee has been curiously constituted to "examine the orders of Hon'ble national Green Tribunal, Eastern Zone Bench, Kolkata" and the committee is headed by one Addl. DistrictrMagistrate. The order further goes on to state that the committee will visit different sites and examine the litigations pending before 5 the Hon'ble High Court of Odisha as reported by the Berhamapur Municipal Corporation to carry out the orders of the Hon'ble National Green Tribunal.
From the facts and circumstances indicated in the affidavit and the order of the District Magistrate, Ganjam, things do not appear to be right. We have every reason to believe that the petitioners have not placed the facts correctly before the Hon'ble High Court and has been misled in passing the order of stay said to have been issued by it.
The subject matter of the writ petition, as would appear from the cause title of the writ petition is as follows :-
" In the matter of -
An application challenging the notice dated 31.12.2016 issued by the Opposite parties to vacate the Government land within 30 days failing which they will be evicted. The said notice issued having no authority under law and is violation of principle of natural justice."
Hon'ble High Court, perhaps, may not have been informed that the order of eviction of the encroachers of the water body (and not government land) emanated from our orders issued in exercise of our jurisdiction under the N.G.T. Act, 2010. However, in due deference and in the interest of maintaining judicial propriety we desist ourselves from making any further observations on this aspect except to direct the Municipal Commissioner, Berhampur Municipal Corporation, Respondent No. 5, to complete the task which have been assigned by our orders. Failure to do so shall invite serious coercive 6 measures in accordance with law.
List on 24.4.2017 on which date the respondent No. 5 shall file an affidavit on the compliance of our order to remove all the encroachers from the "water body". We also direct the respondent No. 5 to inform the Hon'ble High Court of Odisha of the correct position. "
On the next date, i.e., 24.4.2017, when the same circumstances was found to be persisting, further order was passed giving clarity to the nature of the present proceedings which reads as follows :-
"Mr. Sushanta Kumar Mishra, Municipal Commissioner, Berhampur Municipal Corporation, is present before us in pursuance of our order dated 15.03.2017. He submits that all encroachers could not be evicted from the water bodies in view of an order passed by the Orissa High Court. He tenders unconditional apology for the non-compliance although, as per him, he is also keen to protect the water body in question. As he has also stated various other facts which, in our view, is germane for determination of this matter, we direct him to file an affidavit on the facts relevant to the period of his tenure as the Commissioner of the Berhampur Municipal Corporation, since it is stated that he is now under an order of transfer.
Mr. Basanta Kumar Sen, ld. Advocate by filing vakalatnama for Respondent No.5, i.e., the Municipal Commissioner, Berhampur Municipal Corporation, seeks for leave to file a copy of the order of the High Court dated 18.04.2017 passed by the Hon'ble High Court in 7 Writ Petition (C) No. 1383/2017 whereby certain directions have been issued.
Since this order is contrary to what we had already directed earlier and also amply clarified vide our order dated 15.03.2017, we direct the State Respondents to comply with the directions issued by us strictly within three months from hence and not a day later. In the event of any of the party being dissatisfied with these directions, they are at liberty to take appropriate relief before the Hon'ble Supreme Court. Compliance report shall be filed by the Municipal Commissioner, Berhampur Municipal Corporation.
In the context of the above it is of relevance to observe that this matter has been pending before us since 2015 and in the interregnum various directions issued by us in the light of the affidavits filed by the respondents ultimately culminating in the orders dated 8th September, 2016, 25th October 2016 and 24th January, 2017. For convenience we may reproduce those below being relevant:-
Order dated 08.09.2016 "Mr. Rama Chandra Pasupalak, Ld. Advocate who appears for Respondent No. 5, prays for leave to place on record the status on the action taken as directed vide order dated 2.08.2016.
Prayer is allowed.
Let action taken report be taken on record. Mr. Mahapatra, the applicant appearing in person submits that he has just received the copy of the action taken report and also prays that the supplementary affidavit filed by him on 29.8.2016 giving details of the persons who have encroached 8 the tank embankments be taken on record. It is stated that copies have been handed over to the other side.
We have fixed the next date on 25.10.2016 considering the averments made by the Respondent No. 5, viz., Municipal Commissioner, Berhampur Municipal Corporation, in paragraph 4 of the affidavit filed on 8.9.2016 and taken on record today where it has been categorically stated that for various reasons the direction has not yet been complied with "but as soon as she rainy season is over all the encroachments on the embankments of tanks will be evicted."
Since, as per Mr. Pravt Kumar Muduli, Addl. Standing Counsel and the other counsel appearing before us submit that rainy season is likely to continue upto middle of October, we have fixed the matter on 25.10.2016. By that date, we expect that, as stated by them, all encroachments shall be removed by the Berhampur Municipal Corporation.
An affidavit of compliance shall be filed by the respondent No. 5 on or before the next date with copies on the others.
Order dated 25.10.16 " Status report has been filed on behalf of the Municipal Commissioner, Brahmapur Municipal Corporation, Respondent No. 5, by Mr. R.C.Pasupalak, Ld. Advocate, wherein it is stated that eviction of illegal encroachers on the embankment of the water bodies has just been commenced and about 50 to 60 of them have been evicted from Dhoba Bandha Huda near 1st Gate, Aska Road. Similarly, it is stated, all encroachments from Aina Bandha Huda have been evicted 15 days ago and that although action 9 has already been initiated to evict the encroachments from Agula Bandha Huda, Gosaninuagaon, it could not be completed due to want of adequate police force. It is stated that they would require 3 to 4 months to complete the entire exercise.
Considering the enormity of the task, we grant three months time to the Municipal Commissioner to complete the work.
Let a compliance report be filed on the next date."
Order dated 24.01.2017 "Affidavit filed today by Mr. Ram Chandra Pashupalak, Ld. Advocate for the respondent No. 5, Municipal Commissioner, Berhampur Municipal Corporation is ordered to be taken on record.
Further time is prayed for by Mr. Pasupalak to take complete eviction process of encroachers from the area in question.
We have observed that the respondent No. 5has not submitted a detailed report on actions taken thus far. We accordingly direct them to do so by giving details actions taken on eviction, pond-wise, from where the encroachers have been evicted and the names of the encroachers etc. Let such detailed affidavit be filed on or before 15th March 2017. In the meanwhile, they shall ensure that eviction process is complete.
We also direct the District Magistrate, Ganjam district to extend active cooperation to the respondent No. 5, Berhampur Municipal 10 Corporation and submit a report on or before the next date. "
It would be evident from the aforesaid orders that action for removal of encroachments had commenced but, considering the enormity of the task and the weather conditions, we had granted three months time to complete the work. However, on 24th January, 2017 when the matter came up before us, it transpired that the work had still not been completed and, in fact, the Municipal Commissioner had failed to submit action taken report. Thus a detailed report was sought from him on the action taken by the Municipality pondwise to be filed before 15th March, 2017, i.e., after almost two months.
What transpired in the interregnum has been recorded in our order dated 15th March, 2017 and, in our considered opinion, those clearly reflect gross abuse of the process of the court and attempt on the part of the Municipal Commissioner to scuttle the present proceedings in connivance and collusion of the encroachers. For the moment, we desist ourselves from passing an order which we reserve to be dealt with when finally disposing of this case.
The State Respondents, i.e., Respondents No. 1 & 2, who is represented by Mr. Muduli, are directed to file affidavit informing us as to why urgent measures should not be taken by them for amelioration of the encroachers in the light of the rehabilitation scheme of the State Government. The measure shall be taken by the State urgently to assist the Berhampur Municipal 11 Corporation to evict the encroachers within the time frame as directed by us.
Since the concerned Department under the Govt. of Odisha dealing with the municipality and Municipal Corporation is the Housing and Urban Development Department, Govt. of Odisha, we direct that the Commissioner-cum-Secretary, Housing and Urban Development Department, be also impleaded as Respondent No.6.
As Mr. Pravat Kumar Muduli, ld. Addl. Govt. Advocate is present before us on behalf of the other State Respondents, notice is dispensed with. He shall take appropriate steps to file appropriate affidavit before the next date. He shall also take necessary steps to place on records before the concerned bench of the Hon'ble Orissa High Court of the pendency of the proceedings within the confines of our jurisdiction since 2015 and the directions issued from time to time.
List on 24.08.2017 for submission of compliance report."
By the aforesaid orders the State respondents were directed to file an appropriate affidavit on the action taken by them.
Today, Mr. S.P.Mishra, Ld. Advocate General, State of Odisha, appearing with Mr. P.K.Muduli, Addl. Govt. Advocate, by placing an affidavit on behalf of the newly impleaded respondent No. 6, submits that action for removing all encroachers from the embankment of 12 the ponds have been initiated but some more time will be required for completion as the State Govt. has identified the encroachers as beneficiaries under the Rajiv Awas Yojna, a scheme for housing for people belonging to the economically weaker section, framed by the Government of India in the year 2010. Under this scheme, the Government is said to have approved construction of 5193 dwelling units within the limit of Berhhampur Municipal Corporation against which a sum of Rs. 98.07 crores had been sanctioned thus far and that these houses were expected to be completed within three months after which, allotments would be made to the identified beneficiaries. For the sake of convenience and to avoid any confusion, the relevant portion of the affidavit filed on behalf of the respondent No. 6 is reproduced below :
"That, it is submitted that it has been reported by the Respondent No.5-Corporation that there were 920 encroachers along the embankments of the following 11 water bodies within the Berhampur Municipal Corporation limits.
1) Ankuli Gudia Bandha
2) Dhoba Bandha Huda
3) Purnabasi Harijan Colony
4) Phulla Sundari Huda
5) Nelia Bandha Huda
6) Gauda Bandha Huda
7) Dhoba Bandha Huda Near Radhakanta Street
8) Mukteswara Bandha Huda
9) Balajipentha Huda
10) Salia Bandha Huda 13
11) Bandha Huda Street It has been reported that the encroachers are mostly people belonging to the Economically Weaker Sections. Most of them have been enumerated as beneficiaries for allotment of Dwelling Units under Rajiv Awas Yojna, a Scheme framed by the Government of India in the year 2010. The Housing & Urban Development Department has approved construction of 5,193 Dwelling Units within the limits of Berhampur Municipal Corporation under Rajiv Awas Yojna (RAY) in the year 2015. An amount of Rs. 98.07 Crores has so far been sanctioned and released by the State Government in Housing & Urban Development Department for execution of this project by the Respondent no.5- Berhampur Municipal Corporation.
As reported, the Respondent no.5-Corporation has been constructing these houses through some Central Public Sector Undertakings and so far 2,253 Dwelling Units are in the final stage of construction. It has been further reported by the Respondent No.5-Corporation that the Houses shall be completed within the next few months. It has also been reported that the Respondent No.5-Corporation have already completed about 704 Dwelling Units which will be allotted to the identified beneficiaries shortly. Out of these 704 beneficiaries, more than 100 beneficiaries are currently dwelling along the side of the embankments of some of the above mentioned water bodies. They are going to be shifted to the respective RAY Project sites. Respondent No.5-Corporation has also reported that 155 out of the 920 encroachers have already been evicted previously.
The Policy for Housing for All in Urban Areas, Odisha, 2015 stipulates that all residents of urban areas in Odisha shall have access to a range of housing options within their affordability limit. The basic objective of this Policy is to create a comprehensive, holistic policy framework to address all aspects of housing to the urban poor including slum rehabilitation and redevelopment. The said Policy has made it mandatory to develop Transit Housing for the urban poor in the informal settlements, if 14 they are required to be evicted, in order to protect their right to shelter. It would be, therefore, necessary to relocate the people residing in slums along the embankments of water bodies in accordance with the above policy guidelines, since they are required to be evicted. The construction of transit accommodation requires identification of suitable land free from encumbrances and litigation, preparation of DPR and floating of tender, selection of executants, construction of civic amenities etc. This process requires at least six months to one year time. Since, the houses under Rajiv Awas Yojna within the limits of Respondent No.5- Corporation are likely to be completed shortly; it will not be useful to contemplate construction of transit space/accommodations for the people living along the embankments of the water bodies."
In view of the facts stated above, it has been prayed that the State respondents may be granted reasonable time for completion of the entire process of eviction and to comply with the orders of the Tribunal which according to them is expected to take about six mgonths to one year.
In view of the facts and circumstances alluded to above, we find that as all necessary actions have been taken by the State Government and the Respondent No. 5 to address the anxiety expressed by the applicant in the OA, no useful purpose would be served in keeping the matter pending any further.
We accordingly dispose of this OA granting the prayer made on behalf of the State which, in our view, appears to be reasonable. They shall complete the 15 entire process of removal of encroachers from the ponds and its embankments and their rehabilitation within one year from hence.
State respondents, particularly, the Housing and Urban Development Department, respondent No. 6 and the Berhampur Municipal corporation, respondent No. 5, shall file compliance reports on 23.8.2018 in the Registry.
No order as to costs.
......................................... Justice S.P.Wangdi, JM 24-8-2017 ................................................... Prof. (Dr.) P. C. Mishra, EM 24-8-2017 16