National Green Tribunal
Rasulpur Dana Welfare Society vs Wbpcb on 30 September, 2024
Item No.12 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Review Application No.02/2024/EZ
(Arising Out of Original Application No.108/2021/EZ
I.A. No.74/2024/EZ)
IN THE MATTER OF:
Sri Uttam Dasgupta,
S/o Late Dijendra Lal Dasgupta,
R/o Village-Baidyadanga, Rasulpur,
P.S.-Memari, District-Purba Burdwan,
Pin - 713151,
...Applicant(s)
Versus
1. Rasulpur Dana Welfare Society,
Through its President,
Registered Office-Village-Baidyadanga,
P.O.-Rasulpur, District-Purba Bardhaman,
Pin - 713151,
2. West Bengal Pollution Control Board,
Through the Chairman,
Paribesh Bhawan, 10A, Block-LA,
Sector-III, Bidhannagar, Kolkata,
Pin - 700106,
3. The Panchayat Pradhan, Nimo-I
Memari-1, District-Purba Bardhwan,
Pin - 713151,
4. District Magistrate, Purba Bardhaman,
Pin - 713101,
5. The Central Pollution Control Board,
Through the Chairman,
Paribesh Bhawan, Maharshi Valmiki Marg,
East Arjun Nagar, Vishwas Nagar, Shahdara,
New Delhi - 110032,
6. The Block Land and Land Reforms Officer, Memari-1,
District-Purba Bardhaman,
Pin - 713146,
7. District Land and Land Reforms Officer, Rajbari,
District-Purba Bardhaman,
Pin - 713101,
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8. Parbati Ghosh,
S/o Late Nitya Gopal Ghosh,
R/o Village-Baidyadanga, Rasulpur,
P.S.-Memari, District-Purba Burdwan,
Pin - 713151,
9. Haru Ghosh,
R/o Village-Baidyadanga, Rasulpur,
P.S.-Memari, District-Purba Burdwan,
Pin - 713151,
10. Ankul Biswas,
R/o Village-Baidyadanga, Rasulpur,
P.S.-Memari, District-Purba Burdwan,
Pin - 713151,
...Respondent(s)
Date of hearing: 30.09.2024
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s) : Mr. Ayan Banerjee, Advocate (in Virtual Mode) a/w
Ms. Riya Ghosh, Advocate
ORDER
1. Heard Mr. Ayan Banerjee, learned Counsel (in Virtual Mode) assisted by Ms. Riya Ghosh, learned Counsel appearing for the Review Applicant.
2. The Review Application No.02/2024/EZ filed in Original Application No.108/2021/EZ (Rasulpur Dana Wildlife Society Vs. West Bengal Pollution Control Board & Ors.) is being taken up.
3. The Original Application No.108/2021/EZ was filed by the Applicant therein alleging that the Respondent Nos.7, 8 & 9 are destroying two ponds situated in Dag No.463 and Dag No.25, J.L. No.135, Mouza-Baidyadanga under Memari-I Block, Rasulpur in Purba Bardhaman District.
4. According to the Review Applicant, he was not impleaded in the said Original Application in the array of Respondents and the Tribunal by its order dated 01.08.2022 disposed of the Original 2 Application No.108/2021/EZ directing the District Magistrate, Purba Bardhaman, to take all steps for removal of encroachments from Plot No.463 and Plot No.25, J.L. No.135, Mouza-Baidyadanga under Memari-I Block, Rasulpur, Purba Bardhaman, and restore the area of 0.61 acres of Plot No.463 and area of 0.44 acres of Plot No.25 to its original form as water body. Paras 19 and 20 of the order dated 1.08.2022 read as under:-
"19. For reasons aforesaid, we dispose of the original application and direct the District Magistrate, Purba Bardhaman to take all steps for removal of encroachments from Plot No.463 and Plot No.25, J.L. No.135, Mouza-Baidyadanga, under Memari-I Block, Rasulpur, Purba Bardhaman within one month and restore the area of 0.61 acres of the Plot No.463 and area 0.44 acres of the Plot No.25, J.L. No.135, under Memari-I Block, Rasulpur, Purba Bardhaman to its original form as waterbody and take steps for removal of water hyacinths and file affidavit of compliance within three months i.e. by 31st October, 2022.
20. With the aforesaid directions, the Original Application No.108/2021/EZ is disposed of."
5. The Review Applicant in the present Review Application is seeking the following reliefs:-
(a) "An order be passed fixing the hearing of the review application since the matter involves the question of Limitation as well as question of violation of natural justice by not impleading the review applicant as a party respondent in the Original application.
(b) Issue a Notice to respondents calling upon them to show cause as to why the present review application should not be admitted and allowed and the Judgment dated 01.08.2022 passed in Original Application No.108/2021/EZ (Rasulpur Dana Welfare Society -vs-
West Bengal Pollution Control Board & Ors.) be not reviewed and recalled by this Hon'ble Tribunal.
(c) Upon allowing the review application hear out the matter afresh on all questions granting an opportunity of hearing to the review application to contest the matter.
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(d) Pass any other or further order or orders as Your Lordships may deem fit and proper."
6. The case of the Review Applicant is that he is the owner of a property being a land with pucca structure situated in Dag No.463 and 464, J.L. No.135, Mouza-Baidyadanga under Memari-I Block, Rasulpur, Police Station-Memari, District-Purba Bardhaman, and is residing in the said property for more than a decade with his family members. It is stated that he purchased the said property under a registered instrument dated 06.02.1998 and his name has been duly recorded in the Record of Rights and L.R. Parcha issued in his name.
7. The case of the Review Applicant further is that the character of the land in question is solid land and is about 25 years old. It is stated that the plot adjoining to the plot of the Review Applicant i.e., Dag No.464 of the same Khatian and Mouza, is recorded in the Record of Rights as "Bastu" whereas Plot No.463 is recorded as "Pukur" but, in fact, major portion of the Dag No.463 has been converted into solid land by passage of time and the Review Applicant purchased the said land under the impression that it is a solid land and not a water body.
8. The case of the Review Applicant also is that after he learnt about the existence of the order of the National Green Tribunal dated 01.08.2022, he applied before the appropriate authorities under the West Bengal Land Reforms Act, 1955, for conversion of the said land from 'Water Body' to 'Bastu' and also sought permission for creation of a compensatory water body of equal or larger size. It is stated that the said application submitted before the authorities on 18.07.2024 is still pending adjudication. However, it is stated that 4 he received an order vide Memo No.956(7)/CS dated 19.07.2024 issued by the District Magistrate, Purba Bardhaman, directing the Review Applicant along with others to vacate his premises for the purpose of carrying demolition process and restoration of the said land into a water body.
9. It is stated that thereafter the Review Applicant filed a W.P.A. No.18956 of 2024 (Sri Uttam Dasgupta Vs. The Stat of West Bengal & Ors.), before the Hon'ble High Court at Calcutta which was disposed of by the Hon'ble High Court vide order dated 30.07.2024 giving liberty to the Petitioner, Review Applicant herein, to approach the National Green Tribunal with her grievances. The order of the Hon'ble High Court dated 30.07.2024 reads as under:-
"W.P.A. 18956 of 2024 Sri. Uttam Dasgupta Vs. The State of West Bengal & Ors.
Mr. Ayan Banerjee,
Ms. Riya Ghosh ... for the Petitioner.
Sk. Md. Galib,
Ms. Suvasree Ghose ... for the State.
1. Affidavit-of-service filed in Court today, is taken on record.
2. None appears on behalf of the respondent no.5.
3. The notice that the matter will be mentioned for being taken up today, out of turn, has also been served upon the respondent no.5.
4. However, as this Court is not inclined to pass any mandatory directions by setting aside the order of the learned Green Tribunal, the writ petition is entertained in her absence. The petitioner is being directed to approach the learned Green Tribunal by filing appropriate applications.
5. The only contention of the petitioner which is taken note of is that the petitioner was not made a party to the proceeding before the learned Green Tribunal and the order was passed for removal of the structure of the petitioner, without hearing the petitioner. 5
6. Mr. Banerjee, learned advocate for the petitioner contends that the order was passed by the learned Green Tribunal without considering that the said petition filed by the respondent No.5, was barred by limitation and also barred by the principles of nonjoinder of parties. Such issue will also be raised before the learned Green Tribunal.
7. The merits of the order passed, are not gone into. The petitioner is at liberty to approach the concerned forum with her grievances.
8. Till August 16, 2024 and until further orders of the learned Green Tribunal, the notice of demolition issued by the District Magistrate, Purba Bardhaman shall remain stayed.
9. However, there will be no order as to costs.
10. Parties are directed to act on the basis of the server copy of this order."
10. The present Review Application is barred by limitation of 713 days and an I.A. No.74/2024/EZ has been filed seeking condonation of delay. The cause shown in the I.A. is that the Review Applicant was not made a party to the proceedings before the National Green Tribunal and subsequently when he learnt about the existence of the order dated 01.08.2022 he applied before the appropriate authorities under the West Bengal Land Reforms Act, 1955, for converting the said land from 'Water Body' to 'Bastu' and for seeking permission for creation of a compensatory water body of equal or larger size. It is stated that the application was submitted before the authorities on 18.07.2024. It is, however, stated that the Review Applicant received the order of the District Magistrate, Purba Bardhaman, dated 19.07.2024 directing the Review Applicant and others to vacate his premises for purposes of carrying demolition process and restoration of the said land into a water body. It is stated that the Review Applicant was able to procure the order of the National Green Tribunal dated 01.08.2022 6 passed in Original Application No.108/2021/EZ in the month of July, 2024.
11. A perusal of the order of the Tribunal dated 01.08.2022, however, would show that a report dated 10.12.2021 had been filed by the Block Land and Land Reforms Officer, Purba Bardhaman, Memari- I, along with affidavit dated 14.12.2021 of the Additional District Magistrate & District Land and Land Reforms Officer, Purba Bardhaman, stating that eight persons had tried to fill up the Plot No.463 of Mouza-Baidyadanga, J.L. No.135 and FIR's have been lodged against them. It was also noted in the report that on enquiry of Plot No.25, Mouza-Baidyadanga, J.L. No.135, it has been found that one Ankul Biswas was attempting to fill the western side of the pond and notice had been issued to him earlier on 04.07.2016 to stop such work.
12. The District Magistrate, Purba Bardhaman, had also filed affidavit dated 24.05.2022 stating therein that there were six pucca constructions on Plot No.463, area 0.61 acres, out of which 0.21 acres had been filled up and the present Review Applicant, Uttam Das Gupta, S/o Dijendralal Dasgupta, has constructed a pucca house over 858 sq.ft area, recorded in Khatian No.756. It is also stated in the affidavit of the District Magistrate that proceedings had been initiated vide Memari P. S. F.I.R No.511/2016 dated 13.08.2016 under the provisions of Section 4(D) of the West Bengal Land Reforms Act, 1955, and the case was pending for adjudication in the court of Judicial Magistrate, 2nd Court, Bardhaman, and the notices were directed to be issued to the following persons who were directed to restore the water body of Plot No.463, Mouza- Baidyadanga, J.L. No.135:-
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1) Sri Dibakar Ghosh S/o Haradhan Ghosh;
2) Sri Uttam Dasgupta;
3) Smt. Bani Ghosh;
4) Sri Parbati Ghosh So Nityagopal Ghosh;
5) Sri Ramesh Ghosh;
6) Sri Samaresh Ghosh;
7) Sri Gouranga Ghosh and
8) Smt. Shyamali Boiragi W/o Biplab Boiragi,
13. Thus, from the affidavit of the District Magistrate, Purba Bardhaman, which was filed before the Tribunal in Original Application No.108/2021/EZ, it is quite clear that the Review Applicant had been issued notices by the District Magistrate and would have been aware of the proceedings before the National Green Tribunal and, therefore, he cannot plead ignorance of the proceedings before the National Green Tribunal. We also find that during this period proceedings under the West Bengal Land Reforms Act, 1955, were already pending before the competent authority.
14. In this view of the matter, it does not stand to reason as to why the present Review Application has been filed after a delay of 713 days merely stating that the Review Applicant came to know about the case only when the order of 19.07.2024 was passed by the District Magistrate, Purba Bardhaman, directing the Review Applicant along with others to vacate the water body in question.
15. Even otherwise, this Tribunal is a Court of limited jurisdiction and its jurisdiction is limited to substantial questions relating to environment as per the provisions of Section 14 of the National Green Tribunal Act, 2010. The Tribunal has no jurisdiction to 8 decide the question of right and title of parties over any land which may be subject matter of proceedings before the National Green Tribunal and it is bound, inter alia, to decide cases for protection of environment, only on the basis of the entries in the land records place before it. Undisputedly, the land in question i.e., Plot No.463 and Plot No.25, J.L. No135, Mouza-Baidyadanga, was stated to be a water body by the District authorities and in terms thereof an order was passed on 18.05.2022 for restoration of the water body in question. The averments in the Review Application also confirm that the land in question is recorded as water body and the Review Applicant has applied for conversion of the said land from water body to Bastu only vide his application dated 18.07.2024 i.e., long after the order of the Tribunal dated 01.08.2024.
16. Even otherwise, whether the land should be converted from water body to Bastu would be governed by the provisions of the West Bengal Land Reforms Act, 1955, and, the West Bengal Land Reforms Manual, 1955 which prescribes a cut-off-date of 24.03.1986 therein and it is for the State authorities under the Act, 1955, to take a decision as to whether the characteristic of the land stood converted prior or subsequent to the cut-off-date and the National Green Tribunal has no jurisdiction to enter into the questions which fall exclusively within the domain of the State authorities under the Act, 1955.
17. In the present case, the Review Applicant has himself stated that he has applied for conversion of the land from water body to Bastu on 18.07.2024. In the I.A.74/2024/EZ seeking condonation of delay, the Review Applicant has stated that he applied for conversion of the land upon learning about the existence of the order of the 9 National Green Tribunal dated 01.08.2022 as stated in para 8 of the said I.A. and it is stated that the application was submitted before the authorities on 18.07.2024.
18. Be that as it may, as we have already observed hereinabove, this Tribunal being a Court of limited jurisdiction, has no jurisdiction to adjudicate the questions of right and title over land in question or its conversion from water body to Bastu or some other character as such questions fall exclusively within the jurisdiction of the State authorities under the West Bengal Land Reforms Act, 1955 read with the West Bengal Land Reform Manual.
19. For reasons aforesaid, we do not find any merit in the present Review Application and the same is accordingly rejected.
20. I.As., if any, stand disposed of accordingly.
21. There shall be no order as to costs.
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B. Amit Sthalekar, JM ............................................. Dr. Arun Kumar Verma, EM September 30, 2024, Review Application No.02/2024/EZ (Arising Out of Original Application No.108/2021/EZ I.A. No.74/2024/EZ) AK 10