National Green Tribunal
Saroj Mishra Aged 56 Years S/O N. Mishra vs 1. State Of Odisha Represented Through ... on 4 July, 2023
Item No.04 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.16/2023/EZ
1. Saroj Mishra
Aged 56 years
S/o N. Mishra,
At Nuacolony,
Gopinathpur,
Puri-752002
2. Madanmohan Rout
Aged 49 years
S/o Late Laxmidhar Rout,
At/P.O.-Gopinathpur,
P.S. PuriSadar,
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
1
7. Odisha State Pollution Control Board,
Represented through its Member Secretary,
At-Paribesh Bhawan, A/118, Nilakantha Nagar,
Unit-8, Bhubaneswar-751012
8. Odisha State Environment Impact Assessment Authority,
Represented through Member Secretary,
At-Acharya Vihar, Unit-IX, OPTCL Colony,
Bhoi Naga, Bhubaneswar-751022
9. Block Development Officer, PuriSadar,
Srikhetra Colony, Station Road, Puri-752002
10. Engineer in Chief of Water Resource Department, Odisha,
Unit-V, Keshari Nagar,
Bhubaneswar-751001
11. Tehsildar Puri,
At-Governor House Road,
Near Collector Office,
Puri-752002
12. Executive Engineer of Drainage Division, Odisha,
At-Gandarpur, P.O.-College Square,
Cuttack-753003
13. Superintending Engineer of Drainage Division,
At-Shreevihar, Puri-752003
14. Commissioner of Endowments of Odisha,
At-Debottar Bhawan, Near Civil Courts,
P.O.-BJB Nagar, Bhubaneswar,
Dist.-Khurda-751014
15. Nilakantheswar Dev,
Through Manoj Kumar Mahapatra,
S/o Late Gobinda Chandra Mohapatra,
At/PO-Gopinathpur,
PS-PuriSadar,
Dist.-Puri-752002, Odisha
........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),
Mr. Apurba Ghosh, Advocate for R-8 (in Virtual Mode),
Mr. Sankar Prasad Pani, Advocate for R-15 (in Virtual Mode)
2
ORDER
1. This Original Application has been filed by the Applicant on the allegation that Plot No. 390 and Plot No. 417 of Khatiyan No. 125, Mouza-Gopinathpur @ Routrapur in Tahasil-Puri, Plot No. 192, 4, 24, 286/624 and 435 of Khatiyan No.209, Mouza-Gopinathpur @ Routrapur in Tahasil-Puri, and Plot Nos. 181, 235, 261/628, 172/623, 172, 564, 370, 193, 260, 438, 262, 368, 172/622, 559 of Khatiyan No. 126, Mouza-Gopinathpur @ Routrapur in Tahasil- Puri, are water bodies. The land records to that effect have also been filed along with the Original Application.
2. It is alleged that on these water bodies illegal constructions have been made.
3. It is also alleged that rain water of Villages - Gopinathpur, Tala Nuasahi, Samantra Nagar, Bhoi Sahi, Mallick Sahi, Maitree Vihar, Viswanath Vihar and Mukunda Mishra Nagar, gets accumulated in the said water bodies and passes through Bharaput and becomes source of water for Musa River.
4. It is, therefore, prayed that a direction be issued to the State Respondents to stop constructions over the water bodies in question.
5. 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.3
6. The Committee was required to visit the site in question and submit its Report with regard to the allegations made in the Original Application.
7. Though, the SEIAA, Odisha, Respondent No.8, has been made a party in the Original Application but its stand is that no application has been made to it for grant of Environmental Clearance in respect of any construction which may require Environmental Clearance.
8. The State Pollution Control Board, Odisha, Respondent No.7, has filed affidavit dated 11.04.2023 bringing on record the Inspection Report of the Committee constituted by the Tribunal. The Committee Report 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. 16/2023/EZ-Saroj Mishra-Vrs-State of Odisha & Others The above 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.4
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 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 5 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 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..6
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, 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."
9. The observation of the Committee Members with regard to the area in question is that all the plots are fully developed with human 7 habitation like - houses, buildings, gardens, temples and colonies with stagnant water bodies, full of floating species. There is no clear drainage system to allow clear flow of rain water during torrential rainfall and, therefore, overflow of rain water to nearby area cannot be ruled out. It was also observed that the information provided by the Tahasildar in respect of the status of land record and real time possession data does not clarify the conversion status of the alleged plot. However, letter of the Tahasildar, Puri, referred to in the Committee Report mentions that there are lot of changes in respect of characteristics of the land in these years since the last settlement of 1977.
10. The letter of the Tahasildar, Puri, (Annexure-6, page 96 of the paper book), also mentions that the plots are recorded in private Khatas and details of the possession holder is not ascertainable at present. The present status report of the land has been filed at page no.101 of the paper book, which shows the plots to be house/road/pond/nalla/temple and Khata No.139 Status-Stitiban, Khata No.165/1903 Status-Stitiban, Khata No.126 Status-Stitiban, Khata No.209 Status-Bebandabasta, Khata No.125, Status-Stitiban and Khata No.44 Status-Stitiban, and the Kissam of these Khatas are shown to be Jalasaya-II, Jalasaya-I, Nallah (Paninallah), Jore etc. The Present Status Report of land reads as under:- 8
11. The District Magistrate, Puri, Respondent No.5, in his counter-
affidavit dated 12.04.2023 has also filed the same documents and it is stated that the area in question is covered with houses, buildings 9 with boundary wall or barbed wire. It is stated that the plots in question are not Government plots and are recorded in the name of private owners. The letter of the Superintending Engineer, Drainage Division, Puri, dated 06.03.2023 filed along with the counter- affidavit as Annexure-E (page 128 of the paper book), also mentions that the plots in question are not Government plots but are recorded in the name of private owners.
12. The State Pollution Control Board, Odisha, Respondent No.7, has filed further affidavit dated 12.05.2023 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.16/2023/EZ OF HON'BLE NGT FILED BY SRI SAROJ MISHRA AND ANOTHERS -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.10
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 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 11 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 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 Tahasildar, Puri has informed that no notices have been issued from the office against the persons at that time.
4) 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.
5) 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 12 consideration of catchment area, NSL gradient and other aspects.
Informations submitted by the Superintending Engineer, Drainage Division, Puri, submitted through the Collector & District Magistrate, Puri.
Basing on the instruction given by the ADM, Puri, Engineer-in-Chief Drainage Division, Govt. of Odisha, Bhubaneswar through Superintendent Engineer, Drainage Division, Puri has submitted a report, in which 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 has been proposed to prevent water- logging. In the report the Superintending Engineer, Drainage Division, Puri has mentioned that they have initiated action to find out the possible drainage channels in Government lands out falling Musa river ultimate to Mangala river. The necessary preliminary survey and demarcation of Drainage Channels over the government land has been made jointly with the supports of tahasildar and field staff of both Tahasils and Drainage Department and completed it by dt. 6.5.2023. It has been proposed to construct 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). It has also been mentioned that if these Drainage Channels are constructed, then their shall be no water logging in that area.
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 building already builtup within the alleged 13 area to avoid any law and order situation in future by the local public.
(ii) The Superintending Engineer, Drainage Division, Purl has proposed to construct 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). He has also mentioned that if these Drainage Channels are constructed, then there will be no water logging in that alleged area.
(iii) The joint committee also 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..) so that there will be no water logging in the alleged area."
13. The Committee Report mentions that queries have been made with the Additional Tahasildar, Puri, to find out as to how private persons had been permitted to make constructions over water bodies like - Pani Mahara/Natural Drain/Pond etc. resulting in water-logging problem and also explain what action has been taken against the violators who have constructed their houses over water bodies. The Additional District Magistrate, Puri, has also directed the Engineer-in-Chief, Drainage Division, Bhubaneswar, to prepare alternative Master Plan for a concrete 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 without causing water- logging so that demolition of large number of residential buildings may be avoided. The officials of the Irrigation Department who were also present during the meeting, highlighted raising of the height of embankment of Dhedua River flowing near the Mukunda Mishra 14 Nagar area so that flow of rain water into the area in question may be avoided.
14. The Committee in its Report has also noted the proposal for construction of four drainage channels of approximately 7.11 kilometer of length; (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).
15. The Collector & District Magistrate, Puri, Respondent No.5, in his counter-affidavit dated 15.05.2023 has stated that all the plots in question are Jalasaya in nature and the persons in possession of the plots have constructed houses over Jalasaya Kissam land since long time ago without taking any permission for conversion of the same from the concerned authorities of the Tahasil at the relevant point of time and no notices have been issued against such persons at the relevant point of time. Regarding the proposed drainage network, it is stated that maximum revenue plots and some private plots have been identified and a Muzumuli Map of the area has also been prepared for smooth flow of catchment area rain water through drainage system.
16. The Applicant has filed affidavit dated 15.05.2023 with photographs appended thereto and it is submitted that road is being constructed over the canal in the Village-Gopinathpur Sasan. It is also stated that a water body has been constructed for the people of Gopinathpur Sasan for use of the people of village.
17. The Applicant has filed further affidavit dated 01.07.2023, stating therein that the Applicant has not prayed for removal of any house or other building or construction in his Original Application and that he has only prayed for removal of pollutants with regard to 15 filling of water bodies with sand and shoals. This averment of the Applicant is incorrect. In his prayer to the Original Application, the Applicant has not only prayed for stopping construction over the water body/plots in question but also prayed for demolition of construction that has already been built-up over the water body.
18. The Respondent No.15 has filed affidavit dated 15.05.2023 wherein it is stated that Nilakantheswar Dev temple stands on Plot No.4 and has been standing thus for more than 100 years and the said plot is recorded in the name of deity and the same belongs to the deity. It is stated that Khata No.209 is also recorded in the name of Deity and there are ten plots in that Khata having a total area 4.4 acres. It is also stated that Plot No. 172/622 and Plot No.172/623 mentioned in the Original Application have been under occupation of Khandiabandha since 1972 and 1973 respectively and that in the last 50 years the land has lost its characteristic as a water body.
19. From the findings recorded by the Committee constituted by the Tribunal and other documents on record, we find that though the plots in question are recorded as 'Jalasaya' in the Record of Rights but large constructions have been made on the same and have been in existence since several decades. In our opinion, at this stage it will not be feasible nor practicable to order for demolition of such constructions.
20. In this context, we may 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 O.J.C. No.6721 of 1999, (Tapan Kumar Das vs. Commissioner, Cuttack Municipal Corporation & Ors) and connected 16 cases, and refer to sub-para 3 of para 14 of the said judgment. The sub para 3 of para 14 reads as under: -
"The applications for change of classification 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/kisam 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 Jalasaya 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."
21. 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:-
"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 17 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 arenot 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."
22. In view of above, we dispose of this Original Application with a direction to the State Respondents to ensure that proper drainage system as proposed in the Committee Report and brought on record in their affidavits, is completed within a period of six months since monsoon season has already commended and the possibility of water logging in the area in question cannot be overlooked. We also direct the State Respondents that the land records in question be placed before the Revenue Divisional Commissioner for appropriate orders in terms of the directions given by the Hon'ble High Court in Tapan Kumar Das (Supra) and Batakrushna Das (Supra).
23. I.As. if any, stand disposed of accordingly. 18
24. 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.16/2023/EZ AK 19