National Green Tribunal
Madanmohan Rout Aged 49 S/O Late ... vs 1. State Of Odisha Represented Through ... on 4 July, 2023
Item No.06 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.18/2023/EZ
Madanmohan Rout,
Aged 49 years
S/o Late Laxmidhar Rout,
At/P.O.-Gopinathpur,
P.S. Puri Sadar,
Puri-752002
........Applicant(s)
Versus
1. State of Odisha,
Represented through Additional Chief Secretary of
Department of Forest,
Environment and Climate Change,
At-Sachivalaya Marg,
Bhubaneswar-751001
2. State of Odisha,
Represented through Principal Secretary of
Water Resource,
At-Keshari Nagar,
Bhubaneswar-751001
3. State of Odisha,
Represented through Principal Secretary of
Revenue and Disaster Management Department,
At-Sachivalaya Marg,
Bhubaneswar-751001
4. State of Odisha,
Represented through Principal Secretary of
Housing and Urban Development,
At-Sachivalaya Marg,
Bhubaneswar-751001
5. Collector and District Magistrate, Puri,
At-Governor House Road,
Puri-752002
6. Central Pollution Control Board,
Represented through Member Secretary,
At-Parivesh Bhawan, East Arjun Nagar,
Delhi-110032
7. Odisha State Pollution Control Board,
Represented through its Member Secretary,
At-Paribesh Bhawan, A/118, Nilakantha Nagar,
Unit-8, Bhubaneswar-751012
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8. Block Development Officer, Puri Sadar,
Srikhetra Colony,
Station Road,
Puri-752002
9. Engineer in Chief of Works Department, Odisha,
Unit-V, Keshari Nagar,
Bhubaneswar-751001
10. Tehsildar Puri,
At-Governor House Road,
Near Collector Office,
Puri-752002
11. Executive Engineer (Road & Building) Division,
At-Ramakrishna Mission Road,
Puri-752001
12. District Sub Registrar,
At-Chakratirtha Road,
Puri-752002
13. Ajita Kumar Dash,
S/o Brajmohan Das,
At/PO-Gopinathpur,
P.S.-Puri Sadar,
Dist.-Puri-752002
14. Sadashiv Pradhan,
Aged 49 years,
S/o Hadu Pradhan,
At-Khandiabanha,
P.O.-Gopinathpur,
P.S.-Puri Sadar-752002
15. Purna Chanra Rath,
At/PO-Gopinathpur,
Khandiabandha, P.S.-Puri Sadar,
Dist.-Puri-752002
16. Sabita Pujapanda,
At/PO-Gopinathpur,
P.S.-Puri Sadar,
Dist.-Puri-752002
........Respondent(s)
Date of hearing: 04.07.2023
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant(s) : Mr. Afraaz Suhail, Advocate (in Virtual Mode)
For Respondent(s) : Mr. Tarun Patnaik, ASC for State Respondents (in Virtual Mode),
Mr. Sibojyoti Chakraborty, Advocate for R-6,
Ms. Papiya Banerjee Bihani, Advocate for R-7 (in Virtual Mode)
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ORDER
1. This Original Application has been filed by the Applicant on the allegation that the Plot Nos. 320 & 327 of Khata No. 139 and Plot No. 326 of Khata No. 44 in Mouza-Gopinathpur @ Routrapur, Tahasil- Puri, are Jalasayas (water bodies). It is alleged that on this water body illegal constructions have been made. The land records to that effect have also been filed as Annexure at page no.38 to the Original Application.
2. It is also stated that these water bodies help in passage of rain water/water from one water body to another water body/place and are also low land natural streams which are source of life of a water body.
3. At the time of admission, the Tribunal constituted a Committee comprising of the following members: -
(i) Senior Scientist from the Central Pollution Control Board;
(ii) Senior Scientist from the Odisha State Pollution Control Board;
(iii) Collector & District Magistrate, Puri; and
(iv) Engineer-in-Chief, Water Resource Department, Odisha.
4. The Committee was directed to visit the site in question and submit its Inspection Report.
5. The Respondent No.7, Odisha State Pollution Control Board, has filed counter-affidavit dated 11.04.2023. Along with this affidavit, an Inspection Report has been filed which reads as under: -
"Inspection Report of the Committee that was constituted as per the direction of Hon'ble NGT, Kolakta, w.r.t. O.A. No. 18/2023/EZ-Modan Mohan Rout-Vrs-State of Odisha & Others 3 The above cited O.A. case has been filed by Sri Saroj Mishra Vrs. State of Odisha and others before Hon'ble NGT w.r.t restoration of water bodies/Jalasaya etc. over the alleged plots those have been cited in the case matter where the drainage system has been completely squeezed due to illegal encroachment.
Basing upon the direction of Hon'ble NGT over the above cited OA a committee had been constituted vide order dtd.09.02.2023 with the following members.
a) Collector & District Magistrate. Puri.
b) Engineer-in Chief, Water Resources Department, Odisha.
c) Sr. Scientist from CPCB.
d) Sr. Scientist from Odisha State Pollution Control Board.
Over the above cited case matter, the Hon'ble NGT has directed on the date of hearing i.e. on dtd. 09.02.2023 that State Pollution Control Board will act as Nodal Office for filing the report of the committee for all logistic purposes.
As per order of Ho'ble NGT, The Member Secretary, State Pollution Control Board, Odisha, Bhubaneswar had communicated through his letter vide No.2217, dtd.15.02.2023, to all the Committee Head i.e. to The Collector & District Magistrate, Purl Regional Director (Eastern Regional Directorate) CPCB, Kolkata, Engineer In Chief Department of Water Resources, Govt. of Odisha, Bhubaneswar & had requested for inspection to the alleged sites w.r.t. allegation raised to submit the inspection report within the 6 weeks, so as to file the report to the Hon'ble Tribunal within stipulated time period.
Also in the above cited letter, the Member Secretary had nominated Dr. Sohan Giri, Regional Officer, SPC Board, Odisha, Bhubaneswar to represent the Committee and to act as Nodal Officer on behalf of Board vide Memo No.2218 dtd.15.02.2023.
In that capacity Dr. Sohan Giri, Regional Officer, SPC Board, Odisha, Bhubaneswar had communicated a letter vide No.405, dtd.24.02.2023 all the above cited committee Members to have a 4 meeting on dtd.28.02.2023 at Special Circuit House, Puri for holding detail discussion over the above case matter and to conduct the site visit. (Copy of letter enclosed). Subsequently on behalf of Collector & District Magistrate, Puri, the Additional District Magistrate, Puri had communicated his letter vide No.629, dtd.27.02.2023 to The Superintendent Engineer (P.W.D) & (R&B), Puri, SE(IRR) Division, Pun, SE, Drainage Division, Puri, Tahasildar, Puri, BDO, Pun Sadar Block to be remain present in the meeting & to participate in the discussion so as to put forth their suggestion and views over the cited cases and also had directed the Tahasildar, Puri to be present with the concerned Revenue inspector of the said area, on 28.02.2023 at 3.00 P.M. at special circuit house at Puri. In that meeting Addl. District, Magistrate, Puri had requested Sub-Collector, Pun to be present in the said meeting and to participate over the issues.
Accordingly on dtd.28.02.2023 at 3.00 P.M. all the Constituted committee members along with the other invited Officials/Members of different Departments as has been cited above (along with Sr. Scientist, CPCB, Kolkata, Dr. Sandeep Roy & Dr. Sohan Giri (Nodal Officer) designated --cum- Regional Officer, SPC Board, Bhubaneswar) met at the Special Circuit House, Puri and discussed the alleged highlighted issues raised in the O.A. The meeting was Chaired by Additional District Magistrate, Puri, representative of Collector & DM, Puri. In the joint committee of said meeting ADM, Puri had discussed with the officials present from different Departments, Sr. scientist of CPCB, Zonal Office, Kolkata in details to prepare a inspection report accordingly. Also ADM, Puri had requested all the participated officers to have a site visit over the alleged area along with Tahasildar, Puri and the concerned Revenue Inspector.
As per the direction of Hon'ble NGT, Kolkata all the joint committee members had visited alleged sites and it was decided there that Tahasildar, Puri with the help of Revenue Inspector of that area will provide a clear picture & status of the alleged plots 5 those have been cited in the O.A to the committee so that the same can be communicated to the Hon'ble NGT well before the date of hearing. In that connection Nodal Officer- cum-Regional Officer, SPCB, BBSR had communicated a letter to the Tahasildar, Puri vide his letter No.600, dtd.09.03.2023 to provide real time Land/Plot status (i.e. Plot No., Khata No., Kisam of those plot both past & present) & possession holder at present so as to file an affidavit by The Member Secretary, State Pollution Control Board, Odisha. Bhubaneswar well before 24.03.2023.
In response to the letter dtd.09.03.2023 of the Nodal Officer
--cum- Regional Officer, SPC Board, Bhubaneswar, the Tahasildar, Puri vide his letter No.2199 dtd.15.03.2023 has submitted the land status of those alleged areas/ plots cited in the O.A basing upon the report furnished by Revenue inspector, Biraharekrishnapur, Puri after the field enquiry conducted with Asst. Engineer, Drainage Division, Puri. Also in his letter Tahasildar, Puri has mentioned that there are lots of changes seen in respect of the characteristics of that land on those particular areas since last settlement (1977). Those plots are recorded in private khatas and detail real time possessioner is not ascertainable at present for which further detail survey is required.
As decided in the joint committee meeting held on dtd.28.02.2023, Er. Debidutta R.R. Pattnaik, Chief Engineer, HH, GIS & CEM (O/o) Engineer -in- Chief (Water Resources) Odisha has submitted a compiled statement of the sheet containing particulars ROR w.r.t the Govt. record of the alleged plots with the drainage map vide his letter No.7842 dtd.22.03.2023.
However, on 10th April, 2023, at late evening hour, the Tahasildar, Puri vide his letter No.3065 dtd.10.04.2023 has submitted the Real lime Possessioners of the alleged plots basing upon the report submitted by the Revenue Inspector, 6 Biraharekrushnapur, Dist -- Puri, showing the present status of land record and real time possession.
Remarks:-
a) However the committee Members when visited those alleged plots and observed that all the plots of those areas have been fully developed with human habitation like houses, buildings, gardens, Temple and colonies along with stagnant water bodies, full of floating species. No clear drainage system exists physically so as to allow the clear flow of rainfall water during torrential rainfall. So there might be every chances of over flow of rain water to the nearby area, which cannot be ruled out.
b) The committee observed that the information provided by the Tahasildar with respect to the present status of land record and the real time possession data does not clarify the conversion status of the alleged plot and required further verification and the same has to be approved by the concerned Revenue Authority as well as to verify with the documents provided by the Chief Engineer, Water Resources Deptt, Govt. of Odisha, for which further 2 months of time is required to revisit the alleged sites and submit the final report."
6. The "present Status of the land" has been filed at page no.76 of the paper book along with the affidavit of the Odisha State Pollution Control Board in which the status of Plot No.320 and 327 both Khata No.139 are shown to be Jalasaya-II. The status of Plot No.320 is shown as road and the present status of Plot No.327 is shown as house, road. So far as Plot No.326, Khata No.44, Mouza Gopinathpur is concerned, the status of the same is shown as Jalasaya-Ii, Gadia, and its present status is shown as road. The Present Status Report of land reads as under: -
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7. The Respondent No.5, Collector & District Magistrate, Puri, has filed its counter-affidavit dated 12.04.2023 wherein also the status of Plot No.320, Khata No.139, Gopinathpur is shown as Kissam-Jalasaya-II recorded in the name of one Lingaraj Mishra and its present status is shown as 'Jalasaya, Ghara (house)'; Plot No.327, Khata No.139, Gopinathpur, is shown as Kissam-Jalasaya-II and present status is 8 shown as 'Rasta' and Plot No.326, Khata No.44, Gopinathpur is shown as Kissam-Jalasaya-II, Gadia and present status is shown as 'Ghara (house)', recorded in the name of Debasish Bahinipati and others.
8. Additional affidavit dated 12.05.2023 has been filed by the Respondent No.7, Odisha State Pollution Control Board, bringing on record another Inspection Report of the Committee constituted by the Tribunal. The Committee Report reads as under: -
"PROCEEDING OF THE COMMITTEE MEETING AND ACTION TAKEN REPORT ON O.A.NO.18/2023/EZ OF HON'BLE NGT FILED BY MADAN MOHAN ROUT AND OTHERS -VS- STATE OF ODISHA & OTHERS The Hon'ble NGT, Eastern Zone Bench, Kolkata in the order dt. 13.4.2023 had granted one month time to Committee to file a Comprehensive Report and the case is placed for hearing on Dt. 16.5.2023.
Accordingly the Member Secretary, State Pollution Control Board, Odisha, Bhubaneswar had communicated a letter to Regional Officer, State Pollution Control Board -- cum - Nodal officer vide letter No. 6420, dtd. 20.04.2023 to submit the comprehensive report. Basing upon the letter of the Member Secretary and the order of Hon'ble NGT, the Regional Officer-cum- Nodal Officer again through his letter, requested all the committee member along with other Govt. Officials of related Departments to meet on 26.04.2023 at Special Circuit House, Puri for a discussion along with and action undertaken on the case matter. All the committee members were present along with other government officials.
Issues Discussed by the Committee Members:
a) In the meeting the Chairman of the committee, i.e. Addl. District Magistrate, Puri had instructed the Additional Tahasildar, Puri (who appeared for the Tahasildar, Puri due to illness of the Tahasildar) to provide a detail clear cut information about the alleged plot w.r.t its real status (both past and present) and who 9 had authorized those persons to construct the dwelling house over the water bodies like Pani Mahara/ Natural drain/ pond etc., so for which the water logging problem has been cropped off and what action has been taken up against those law violator's (those who have constructed their houses over the water bodies) by the concerned department so far and copy of the same to be provided to the committee for its submission before Hon'ble Tribunal.
b) Besides above discussion, the ADM, Puri had instructed the Engineer-in-Chief Drainage Division, Govt. of Odisha, Bhubaneswar through Superintendent Engineer, Drainage Division, Puri (who was present in the meeting) to prepare alternative master plan for a concreted drainage network starting from the area of Mukunda Mishra Nagar upto Musa River and final discharge to Mangala River to be prepared so that during rainfall the rain water will get a clear passage system without further water-logging as has been cited in the case matter without demolishing large number of residential building already builtup within the alleged area to avoid any law and order situation in future by the local public.
c) For this Addl. District Magistrate, Puri had directed the Tahasildar, Puri and the Chief Engineer (H.A, GISS-IEM), Puri and other Officials to extend their full co-operation to the Superintendent Engineer Drainage Division, Puri so as to prepared a drawing/design of proposed drainage system along with identifying the revenue/private plots to be acquired so as to resolve the issue in peaceful manner.
d) Besides above cited discussions the officials of Irrigation Department those who were present in the meeting also highlighted to raise the height of embankment of Dhedua River which is flowing nearby to alleged area i.e. Mukunda Mishra Nagar etc. so that the flow of rain water into the alleged area during rainfall can be checked to an greater extend i.e. the perennial problem can be resolved.
A copy of the proceedings of the meeting held on dt 26.04.2023 was circulated to the departments to provide their report by dt. 6.5. 2023 so as to submit the report to the Hon'ble NGT (Proceedings copy enclosed as Annexure-II).
Informations submitted by the Tahasildar, Puri 10 Accordingly the Tahasildar, Puri has submitted a fact-finding report to the Regional Officer, State Pollution Control Board, Bhubaneswar--cum-Nodal Officer in support of the case matter and his view w.r.t the joint enquiry team visit to alleged area to make an overall survey along with official of Drainage Division, Puri for providing an idea for clear passage of proposed drainage system to resolve the water logging issues are as follows: -
1) Basing upon the field survey report of the Revenue inspector and Amin of Biraharekrushnapur, Puri on the alleged area/plots and has cited that the Plots belongs to stitiban khata's over Plot No.181 as Kissam-Jalasaya-2; Plot No. 260 as Kissam-Jalasaya-(Gadia) and Plot No. 559 as Kissam-Jalasaya-2 (Gadia).
2) Some persons have constructed houses over the Jalasaya kisam land since long time ago without taking any permission for conversion of the same from concerned authorities of Tahasil at that time.
3) Also regarding the proposed drainage network maximum revenue plots and some private plots have been identified and a complete muzumuli map has been prepared by taking the identified government plots. Endowment plot comprising mouza Markandeswar Sahi-1, Samanga, Bharatipur and Gopinathpur @ Routarapur for smooth flow of catchment area rain water through drainage system.
4) The possible drainage area layout plan has been handed over to Superintendent Engineer, Drainage Division, Puri to prepare a detailed study of Technical feasibility report taking into the consideration of catchment area, NSL gradient and other aspects.
Conclusion and Recommendations of the Committee:
(i) As per the report of the Tahasildar, Puri, some residential houses has been constructed over the Jalasaya kisam land long time ago. An alternative master plan for a concreted drainage network starting from the area of Mukunda Mishra Nagar upto Musa River and final discharge to Mangala River is proposed so that during rainfall the rain water will get a clear passage system without further water-logging as has been cited in the case matter without demolishing large number of residential 11 building already built up within the alleged area to avoid any law and order situation in future by the local public.
(ii) No information has been received from the Superintending Engineer, Drainage Division, Puri.
(iii) However, the joint committee observed the alleged area also comes under the drainage area leading to must river. So the committee recommends the construction of the 4 numbers of drainage channels for a length of approximately 7.11 Km i.e.
(i) Drain No.1 - 2.75 Km (approx.); (ii) Drain No.2 - 1.66 Km (approx.); (iii) Drain No.3 - 1.20 Km (approx.) and (iv) Drain No.4 1.50 Km (approx.) (drainage map enclosed) so that there will be no water logging in the alleged area."
9. The Committee in its Report has also noted the proposal for construction of four drainage channels of approximately 7.11 kilometer of length i.e.,
(i) Drain No.1 - 2.75 kilometer (approx.),
(ii) Drain No.2 - 1.66 kilometer (approx.),
(iii) Drain No.3 - 1.20 kilometer (approx.) and
(iv) Drain No.4 - 1.50 kilometer (approx.).
It is stated that once these drainage channels are constructed, there shall be no water logging in the area.
10. The Respondent No.5, Collector & District Magistrate, Puri, has filed its counter-affidavit dated 15.05.2023 reiterating the contents of the Committee Report. The Minutes of the Meeting of the Committee constituted by the Tribunal has also been filed as Annexure-5 which reads as under: -
"Minutes of the meeting of the Committee constituted by the Hon'ble NGT held on dt. 26.04.2023 at 3.30 P.M at Special Circuit House, Puri w.r.t the OA No.16/2023/EZ, No. 17/2023/EZ & No. 18/2023/EZ As per the direction of Hon'ble NGT, Eastern Zone Bench, Kolkata on dt. 13.04.2023, the committee shall submit the comprehensive report 12 within one month so as to place the same before the tribunal for its next hearing on 16.05.2023.
The Member Secretary, State Pollution Control Board, Odisha had communicated the copy of the judgment of Hon'ble tribunal to the Regional Officer-cum-Nodal officer of State Pollution Control Board, Odisha, Bhubaneswar vide letter no. 6420, dtd. 20.04.2023 to submit the comprehensive report of the said committee by dt. 10.05.2023 for timely submission of the same before Hon'ble Tribunal for its submission on next date of hearing as stated above.
In connection with the letter received from The Member Secretary, State Pollution Control Board, Odisha, Bhubaneswar, the Regional Officer-cum-Nodal Officer had communicated to the constituted committee member to meet again on dt. 26.04.2023 to have a further discussion/deliberation with the related officers of concerned Department, Government of Odisha and accordingly a comprehensive conclusion can be arrived which can be placed before Hon'ble Tribunal. Accordingly the committee member along with the other government officials from related Departments meet on dt. 26.04.2023 at the Special Circuit House, Puri on under the Chairmanship of Additional District Magistrate, Puri on behalf of the Collector & District Magistrate, Puri.
At the outset Dr. Sohan Giri (Regional Officer, SPC Board, Odisha, Bhubaneswar-cum-Nodal officer of the case) welcomed all the members and other officers those who were present in the committee to put-forth their views, findings and any other proposal so as to reach a conclusion which can be placed before Hon'ble Tribunal on dt. 16.05.2023 (i.e. on next date of hearing).
In the meeting the officials present were ADM, Puri, Sub-collector, Puri, Deputy Collector (Judicial), Puri, Regional Officer, State Pollution Control Board, Odisha, Bhubaneswar-cum-Nodal Officer, Senior Scientist, Central Pollution Control Board, Kolkatta, Chief Engineer from EIC (W.R), Government of Odisha, Superintendent Engineer, Puri (I&D) Division, Addl. Tahasildar, Puri, Superintendent Engineer, Drainage Division, Puri, AEE (Puri Drainage Division) etc. along with Revenue Inspector of the concerned/alleged circle i.e. Bira Harekrishnapur, Puri (attendance list enclosed).
Issue discussed by the Committee Members and Action to be taken:
a) As per the order/direction of ADM, Puri, the Addl. Tahasildar, Puri was asked to provide the detail information on the alleged plot 13 with respect to permission granted for construction of the residential houses over the water bodies (Pani Mahara/Natural drain/pond), whether any notices have been served to those occupier for construction of the residential houses over the alleged plots and what actions has been taken, so far by the Revenue Department if the houses have been constructed without due permission. The detail information has to be provided to the Committee/Nodal Officer.
b) Along with ADM, Puri all other committee members also requested EIC, Drainage Division, Govt. of Odisha, Bhubaneswar through Superintendent Engineer, Drainage Division, Puri (who was present in the meeting) to prepare a possible alternative master plan so as to construct a fully concreted drainage network from nearby area of Mukunda Mishra Nagar upto Musa river and final discharge to Mangala river to resolve the water logging issue without demolishing the large numbers of residential buildings those have already been constructed within the alleged area and to avoid any law and order situation in future by the local public. The ADM, Puri, Sub-collector, Puri, Sr. Scientist, CPCB, Kolkata also requested the Addl. Tahasildar, Puri & Chief Engineer (HH, GISS LEM), Puri and other officials to extend full co-operation to S.E drainage division, Puri so as to prepare a drawing-cum-design of proposed drainage system with identification of the revenue plot those are existing nearby the alleged area extending upto Musa river so as to provide a clear passage/flow of rain water without water logging.
c) Besides this the official of Irrigation Department present in the meeting highlighted that as Dadhua river which is flowing nearby to the area of Mukunda Mishra Nagar lacks any embankment system, and during rainfall the said river is unable to retain the runoff water within in its bed and within very short time interval those spillage water enters into the alleged area which is causing water-logging. So the said issues can be prevented/avoided permanently if a high raising embankment be constructed along the river bed and side by-
side the proposed drainage system can also be able to carry the rainfall of that alleged area and will allow clear passage to Musa river and finally solve the perennial problem of the area.
To sum off the meeting the Additional District Magistrate, Puri directed to Additional Tahasildar, Puri, Chief Engineer (Irrigation Department), Puri S.E. Drainage Division, Puri to submit the proposed Drainage network drawing and design along with the Plot and khata numbers (both government and private plots) involved for acquiring for 14 its presentation before Hon'ble Tribunal by the 6th May, 2023 and also directed the Additional Tahasildar, Puri to submit the action taken report so far those who have constructed their houses/buildings over water bodies/ ponds/ Pani Mahara etc. which are existing earlier without conversion.
The Meeting ended with Thanks to the Chair."
11. The Applicant has filed additional affidavit dated 01.07.2023 and referring to the Report of the Joint Committee, it is stated that construction has been made over the natural flow of Musa River.
12. However, a perusal of the Committee Report at page nos.131 to 133 shows that the matter was discussed by the members of the Committee and the EIC, Drainage Division through Superintending Engineer Drainage Division, Puri, was requested to prepare a possible alternative master plan so as to construct a fully concreted drainage network from the nearby area of Mukunda Mishra Nagar upto Musa River and final discharge into the Mangala River to resolve the water logging without demolishing the large number of residential buildings which have already been constructed.
13. The Committee Report does not mention that the constructions have been made on the Musa River itself and in fact what has been stated in the affidavit of the Collector & District Magistrate, Puri, is that Dadhua River which flows near the area of Mukunda Mishra Nagar lacks embankment system and during rainfall the said river is unable to retain the runoff water within its bed and there is no spillage of water. It was suggested that if a high embankment along the river bed is constructed, the proposed drainage system can carry the rain water of the alleged area which will allow clear passage to Musa River solving the perennial problem in the area.
14. We may also advert to the observations of the Division of the Hon'ble High Court of Orissa at Cuttack in W.P. (C) No.8797 of 2004 and 15 O.J.C. No.6721 of 1999, (Tapan Kumar Das vs. Commissioner, Cuttack Municipal Corporation & Ors.) and connected cases, and refer to paragraphs 13, 14 & 15 of the said judgment. The paragraphs 13, 14 & 15 read as under: -
"13. On going through the affidavit dated 18.5.2010 filed by the Principal Secretary, H. & U.D. Department, indicating the steps taken for providing funds for acquisition, renovation and maintenance of 4 numbers of private Jalasayas and 8 numbers of Jalasayas on Govt. lands in Cuttack City in the first phase as well as the report of the Committee headed by the R.D.C. dated 31.8.2007, we are of the view that the water-bodies/Jalasayas existing in the city need to be preserved and protected and should not be allowed to be converted into homesteads. The affidavit filed by the Secretary, H. & U.D. Department, also shows that the State Govt. is very much alive to the situation regarding filling up of tanks/water-bodies and change of classification of the same to homestead and they are concerned for conservation of such tanks/water-bodies. We hope and trust that the State Govt. would come forward to acquire more and more water-bodies in the city in the next phases.
14. Considering the facts and circumstances of the case, for preservation and conservation of tanks/water-bodies in Cuttack City, and to deal with such tanks/water-bodies, we direct as follows:
(1) The State Govt. shall act upon the report dated 31.8.2007 submitted by the R.D.C. (C.D.), Cuttack, and the affidavit dated 18.5.2010 filed by the Principal Secretary to Govt., H.&U.D. Department, and shall ensure that the steps indicated therein are taken within a period of two years from today.
(2) The R.D.C. (C.D.), Cuttack, under his chairmanship shall form a Committee not exceeding seven members including the Vice-Chairman, C.D.A., Municipal Commissioner, CMC, Cuttack, and an Environmentalist of the State Pollution Control Board, Odisha. Needless to say, the other members of the Committee shall be nominated by the R.D.C. The 16 Committee shall deal with the protection, preservation and conservation of water-bodies in the city and shall take decisions accordingly.
(3) The applications for change of classification/kissam of lands from Jalasaya to homestead shall be processed through the Tahasildar, Sadar, Cuttack, to the Collector for appropriate orders. The decision of the Collector shall be placed before the Committee as constituted above for approval. Only after approval of the Committee, change of classification/kissam of the land shall be allowed. The Committee shall record the reasons for allowing change of classification/kissam of such lands. However, if the Committee is of the opinion that the lands, which have lost their character as Jalasaya, and those, which are actually not Jalasayas or swampy lands but have been recorded as Jalasaya, change of classification of such lands may be allowed. This shall be effective from the date of the judgment.
(4) The Committee shall also make enquiry, if it is so necessary, to find out whether classification of the lands recorded as Jalasayas has been changed by orders of the Tahasildar during operation of the order of status quo passed by this Court on 8.4.2005 in O.J.C. No. 6721/1999. In case it is found that the classification has been changed during continuance of the order of status quo, the same shall be treated as non est in the eye of law.
15. For the aforesaid purpose, Cuttack City shall be construed to be the old Cuttack City comprising the areas shown in the satellite maps of the ORSAC of 1990 and 2006, which have been annexed to the Report of the R.D.C. dated 31.8.2007. It will be open to the State Govt. to adopt the directions given in respect of Cuttack City in the foregoing paragraph for other cities in the State."
15. The judgment of Tapan Kumar Das (supra) has been followed by another Hon'ble Division Bench of the Orissa High Court in W.P. (C) No.8485/2005, (Batakrushna Das vs. State of Orissa & Ors). Paras-9 & 19 of the judgment read as under: -
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"9. There is no dispute to the facts, as enumerated above. Only contention raised that conversion of nature of the land from "Jalasaya to "Stitiban", as well as grant of lease and permission to the RMC, Jagatsinghpur-opposite party no.6 to go for construction cannot sustain in the eye of law in view of the judgment of this Court in Tapan Kumar Das (supra). We have perused the judgment of this Court in Tapan Kumar Das (supra), wherein this Court had held that the water bodies are required to be retained and such requirement is envisaged not only in view of the fact that the right to water as also quality life are envisaged under Article 21 of the Constitution of India, but also in view of the fact that the same has been recognized in Articles 47 and 48-A thereof. Article 51-A of the Constitution furthermore makes a fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife. There is no dispute on the question of proposition set forth by this Court in the aforementioned judgment, but at the same time this Court had already held in the very same judgment that if the lands which have lost their character as "Jalasaya", and those, which are actually not "Jalasayas" or Swampy lands but have been recorded as "Jalasaya", change of classification of such lands may be allowed.
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19. Considering the facts and law discussed above, we are of the considered view that even though no limitation has been prescribed in filing the writ petition under Article 226 of the Constitution of India, but the petitioner has approached this Court at a belated stage and, as such, in the meantime the third party rights have emerged. Apart from the above, on merits also by following due procedure of law, the lands in question have been converted and transferred in favour of opposite party no.6-Secretary, RMC, Jagatsinghpur on accepting premium amount and a market is functioning over the said lands, we are not inclined to unsettle the settled position after expiry of such long period. Consequentially, the writ petition is liable to be dismissed on merits, as well as for delay and laches and, thus the same is hereby dismissed. No order to costs."
16. We have considered the averments of the learned Counsel for the parties and perused the documents on record. In view of the specific 18 directions issued by the Committee, we direct the State Respondents to ensure that the directions given by the Committee of which the Collector & District Magistrate, Puri, as well as Engineer in Chief, Water Resource Department was also a party, shall implement the directions contained therein to ensure that there is no water logging in the area.
17. Needless to say, if constructions have been made over the Jalasaya land long time ago, the same will be examined by the Committee headed by the Revenue Divisional Commissioner, Puri, in the light of the directions given by the Hon'ble Orissa High Court. The Collector & District Magistrate, Puri, shall therefore, ensure that the records of these plots be placed before the Revenue Divisional Commissioner, Puri, for consideration and passing appropriate orders.
18. In view of the above, the Original Application No.18/2023/EZ is disposed of.
19. I.As. if any, stand disposed of accordingly.
20. There shall be no order as to costs.
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B. Amit Sthalekar, JM ....................................
Dr. Afroz Ahmad, EM July 04, 2023, Original Application No.18/2023/EZ MN 19