National Green Tribunal
Sabitri Bala Saha vs Municipality on 11 September, 2023
Item No.03 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.106/2023/EZ
In the matter of:
Sabitri Bala Saha @ Sabitri Saha
Wife of Late Ajit Kumar Saha,
Residing at Basirhat Old Market (Bowbazar),
P.O. & P.S. - Basirhat,
District - North 24-Parganas,
Pin Code - 743411
.... Applicant(s)
Versus
1. The Chairperson of Basirhat Municipality
Having its office at P.O. & P.S. - Basirhat,
District - North 24-Parganas,
Pin Code - 743411
2. The District Magistrate,
office at North 24-Parganas,
Katgola,
Banamalipur,
Barasat,
District - North 24-Parganas,
Pin Code - 700124
3. The West Bengal Pollution Control Board
Through the Member Secretary to the Government of West Bengal,
Paribesh Bhavan, Block LA,
Salt Lake, Sector III,
Kolkata - 700106
4. The West Bengal Biodiversity Board
Through the Chairman,
Pranisampad Bhavan, Block LB-II,
Salt Lake, Sector III,
Kolkata - 700106
5. Executive Officer of Basirhat Municipality,
P.O. & P.S. - Basirhat,
Kolkata - 743411
6. The Board of Councillors of Basirhat Municipality,
P.O. & P.S. - Basirhat,
Pin Code - 743411
7. Manoj Khara,
Son of Sisir Kumar Khara,
1
Residing at Basirhat Old Market (Bowbazar),
P.O. & P.S. - Basirhat,
District - North 24-Parganas,
Pin Code - 743411
8. Partha Sarkar,
Son of Late Sisir Kumar Sarkar,
Residing at Basirhat Toparchar,
P.O.- Basirhat College,
District - North 24-Parganas,
Pin Code - 743411
9. Sarada Khara,
Wife of Manoj Khara,
Residing at Basirhat Old Market (Bowbazar),
P.O. & P.S. - Basirhat,
District - North 24-Parganas,
Pin Code - 743411
10. Uttam Saha
Son of Late Harendra Nath Saha,
Residing at Village & P.O. & P.S. - Basirhat,
District - North 24-Parganas,
Pin Code - 743411
11. Kelo Saha
Son of Late Harendra Nath Saha,
Residing at Village & P.O. & P.S. - Basirhat,
District - North 24-Parganas,
Pin Code - 743411
12. Soma Saha
Daughter of Late Harendra Nath Saha,
Residing at Village & P.O. & P.S. - Basirhat,
District - North 24-Parganas,
Pin Code - 743411
13. Smt. Aparajita Saha (Nath)
Wife of Amar Nath,
Residing at Village & P.O.- Bhabla Kalibari,
P.S. - Basirhat,
District - North 24-Parganas,
Pin Code - 743411
.... Respondent(s)
Date of hearing: 11.09.2023
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s) : Mr. Bibek Chatterjee, Advocate (in Virtual Mode)
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ORDER
1. Heard Mr. Bibek Chatterjee, learned Counsel appearing (in Virtual Mode) on behalf of the Applicant.
2. The Applicant has filed the present Original Application seeking the following reliefs: -
a) "Direct the respondent authorities to remove all illegal construction around the pond under Mouza Basirhat;
b) Direct the respondent authorities to demolish the aforesaid illegal construction which violates biodiversity and environmental balance and pond ecosystem under Mouza Basirhat;
c) Direct the respondent authorities to take all steps to restore ecological balance of the locality and the adjacent pond of the SCHEDULE property on which the illegal parts of the building are built to disturb ecological balance of the locality under Mouza Basirhat;
d) Direct the respondent authorities to obey the Water (Prevention and Control of Pollution) Act and the Environment (Protection) Act and the Biological Diversity Act properly and strictly on and around the pond under Mouza Basirhat;
e) Direct the respondents authorities to demolish all illegal structure, construction, boundary walls, encroachments on and around the pond under Mouza Basirhat;
f) Direct cost of the application / case;
g) Direct the respondent to pay any suitable amount as compensation by this Ld. Tribunal may deem fit and proper for restoration of environmental balance on and around the pond under Mouza Basirhat;
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h) Pass any other order or relief as in law, equity, justice and good conscience;"
3. Grievance of the Applicant is that the Basirhat Municipality is filling up a pond measuring about one bigha and allowing illegal construction to be raised by encroaching the plot of land of the Applicant over the plot Nos.2346, 2347 and 2348 situated at Mouza:
Basirhat, J.L. No. 83 within the Basirhat Police Station, District - North 24 Parganas under Basirhat Municipality.
4. It is alleged that the Private Respondent has erected an illegal construction with G+3 storied building on the adjacent plot of land by partly filling the aforesaid pond.
5. Photographs have been filed in support of the allegations made.
6. The documents on record show that the Applicant had approached the High Court at Calcutta by way of WPA No.1955 of 2023 (Sabitri Saha @ Sabitri Bala Saha Vs. The State of West Bengal & Ors.) wherein the Hon'ble High Court has passed an order on 13.06.2023 which reads as under: -
"The petitioner complains that the private respondents are raising construction without obtaining any sanctioned plan. Complaint filed before the Basirhat Municipality is pending consideration.
None represents the Municipality or the private respondents. Affidavit-of-service filed in Court today is taken on record. From the documents annexed to the writ petition it appears that a civil suit is pending consideration in respect of the selfsame property and an order of injunction has been passed directing the parties to maintain status quo with regard to the nature, character and possession of the suit property.
4 In the absence of any representation of behalf of the Municipality it will not be possible for this Court to decide the issue conclusively.
As it appears that the representation of the petitioner objecting to the illegal and unauthorised construction is pending consideration at the end of the respondent authorities, no useful purpose will be served by keeping the writ petition pending.
The writ petition is accordingly disposed of by directing the respondent no. 2, Basirhat Municipality to consider and dispose of the representation made by the petitioner strictly in accordance with law, after giving an opportunity of hearing to all the necessary parties including the petitioner within a period of three months from the date of communication of a copy of this order. The said respondent shall pass a reasoned order and communicate the same to all the necessary parties including the petitioner immediately thereafter.
A spot inspection shall be conducted to ascertain the nature and extent of unauthorized construction.
In the event the aforesaid respondent is of the considered opinion that the construction has been made either in violation of the plan sanctioned or devoid the sanctioned plan, then necessary steps shall be taken to deal with such unauthorized construction, in accordance with law.
The aforesaid respondent shall restrict the consideration of the representation with regard to unauthorized construction only and not enter into or decide any private dispute of the parties regarding right, title and interest in respect of the aforesaid land.
It is made clear that this Court has not entered into the merits of the claim made by the petitioner and all points are left open to be 5 decided by the aforesaid respondent at the time of consideration of the representation of the petitioner.
The petitioner is directed to forward a copy of the representation dated January 6, 2023 to the aforesaid respondent at the time of communicating the order of the Court.
The writ petition stands disposed of.
Report filed by the police is taken on record.
Urgent certified photocopy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities."
7. The order of the Hon'ble High Court discloses that a Civil Suit is also pending between the parties with regard to unauthorized construction and the Hon'ble High Court has directed the Basirhat Municipality to consider and dispose of the Applicant's representation and has also directed that the Basirhat Municipality shall restrict the consideration of the representation with regard to the unauthorized construction ONLY and not enter into any private dispute between the parties i.e. the Applicant and the Private Respondent herein.
8. Mr. Bibek Chatterjee, learned Counsel for the Applicant also mentions that the pond in question is under the co-ownership of the Applicant and the Private Respondents.
9. In our opinion, this is a purely private dispute and no environmental questions are involved and the directions of the Hon'ble High Court are required to be complied with.
10. We, accordingly, dismiss the Original Application No. 106/2023/EZ. 6
11. There shall be no order as to costs.
..................................... B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM September 11, 2023, Original Application No.106/2023/EZ SKB 7