National Green Tribunal
Ankur Sharma vs The State Of West Bengal Represented By ... on 8 February, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 01/2021/EZ
IN THE MATTER OF:
Ankur Sharma,
S/o Ambooj Sharma,
R/o 13/3, Dr. P.K. Banerjee Road,
P.O., P.S. & District-Howrah,
Pin - 711101,
....Applicant(s)
Versus
1. The State of West Bengal,
Through Chief Secretary,
Department of Environment,
Nabanna (13th Floor), 325,
Sarat Chatterjee Road,
Shibpur, Howrah - 711102,
2. The Central Pollution Control Board,
Through Member Secretary,
Parivesh Bhawan, East Arjun Nagar,
Delhi - 110032,
3. The Principal Secretary,
Department of Environment,
Govt. of West Bengal,
Pranisampad Bhawan, Block (5th Floor),
LB-II, Salt Lake, Sector-III,
Bidhannaga - 700106,
4. The West Bengal Pollution Control Board,
Through Member Secretary,
1
Paribesh Bhavan, 10A, Block-L.A.,
Sector-III, Salt Lake City,
Kolkata - 700106,
5. The Principal Secretary,
Department of Fisheries,
Govt. of West Bengal,
Benefish Tower (7th & 8th Floor),
31-gn Block, Sector-V,
Salt Lake, Kolkata - 700091,
6. West Bengal Housing Industry Regulatory Authority,
Through Secretary,
Calcutta Greens Commercial Complex (1st Floor),
1050/2, Survey Park,
Kolkata - 700075,
7. Kolkata Municipal Corporation,
Through Municipal Commissioner,
5, S.N. Banerjee Road,
Kolkata - 700013,
8. Orbit Towers Private Limited,
A company incorporated under the Companies Act, 2013,
Through Director Mr. Dileep Singh Mehta,
3B, Camac Street, P.S.-Shakespeare Sarani,
P.O.-Parka Street, Kolkata - 700016,
9. Sugam Griha Nirmaan Limited,
A company incorporated under the Companies Act, 2013,
Through Director Mr. Ashok Saraf,
1F, 'Sukh Sagar', 2/5, Sarat Bose Road,
P.O. Elgin Road, P.S. Ballygunge,
Kolkata - 700020,
2
10. Goodluck Infradevelopers Private limited,
A company incorporated under the Companies Act, 2013,
Through Authorised Representative Mr. Anil Kumar Lahoty,
12 Hemanta Basu Sarani, 3rd Floor,
Kolkata - 700069,
11. Super Diamond Nirman Private Limited,
A company incorporated under the Companies Act, 2013,
Through Director Mr. Vivek Kumar Kajaria,
7B, Dr. Harendra Coomar Mukherjee Sarani,
P.S. Shakespeare Sarani, P.O. Middleton Street,
Kolkata - 700071,
12. Sugam Diamond Abasan LLP,
A limited liability partnership firm incorporated under the
Limited Liability Partnership Act, 2008,
Through Partner Mr. Suhel Saraf,
2nd Floor, Alom House, 7B Pretoria Street,
Kolkata - 700071,
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Ankur Sharma, in person
COUNSEL FOR RESPONDENTS :
Mr. Sudip Kumar Dutta, Advocate for R-1,3,5&6,
Mr. Surendra Kumar, Advocate for R-2,
Mr. Prithwish Basu, Advocate for R-4,
Mr. Sibojyoti Chakraborty, Advocate for R-7,
Mr. Abhrajit Mitra, Sr. Advocate a/w Mr. Paushali Banerjee,
Advocate for R-8 to 12,
Mr. Dipanjan Ghosh, Advocate for SEIAA, West Bengal,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- 02nd February, 2022 Pronounce On:- 08th February, 2022 3 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) This Original Application has been filed by the Applicant alleging that the premise designated as 88A, B. L. Saha Road, Ward No. 116, P. S. - Belaha, District-Kolkata is a large water body measuring about 15 bighas and is being filled up by the Respondent Nos. 8 to 12 (Private Respondents), illegally.
2. In order to enquire into the nature of the allegations made in the Original Application, the Tribunal constituted a Committee comprising of the following Members:-
(i) Senior Scientist from West Bengal Pollution Control Board,
(ii) State Environment Impact Assessment Authority (SEIAA), West Bengal,
(iii) Senior Officer from Kolkata Municipal Corporation, and
(iv) Senior Scientist from Regional Office of Central Pollution Control Board (CPCB), Kolkata.
3. The Committee was required to submit its report with regard to the question as to whether any construction has been permitted in the area over the water body in question and whether such construction, including filling up of the pond as alleged by the Applicant, is in violation of the Environmental Clearance granted for 4 construction by the SEIAA. The Committee was also required to determine the loss/damage caused to the water body and to make assessment of such damage which is required to be recovered from the Respondent Nos. 8 to 12. Remedial measures to restore the water body to its original form were also required to be suggested by the Committee.
4. The Respondent No.7, Kolkata Municipal Corporation, has filed an affidavit dated 02.07.2021 stating therein that the Respondent No.8, Orbit Tower Pvt. Ltd. and some others had filed a Writ Petition before the Hon'ble Calcutta High Court being W.P. No. 264 of 2015: (Orbit Towers Pvt. Ltd. & Ors. Vs. Kolkata Municipal Corporation), alleging, inter-alia, that they had applied for sanction of a building plan in respect of Premises No. 88A, B.L. Saha Road, Kolkata - 700053, with the Kolkata Municipal Corporation but the authorities of the Kolkata Municipal Corporation had required compliance of 11 items noted therein, specifically item no.3 regarding conversion of nature of land from the Block Land & Land Reforms Officer to consider the proposal for sanction. It is also stated that the Writ Petition No. 264 of 2015 was disposed of by the Hon'ble Calcutta High Court vide its order dated 22.04.2015 with a direction to the Kolkata Municipal Corporation to consider the application of the writ petitioners for grant of sanction of a building plan submitted by them in respect of the property concerned "without insisting upon a writing specifically the conversion of nature of land from the Block Land and Land Reforms Officer". It was also directed that the writ petitioners will, however, comply 5 with any other requisitions made by the Kolkata Municipal Corporation in its letter dated May 29, 2014 and any other valid requisition made in accordance with law. A copy of the order dated 22.04.2015 passed by the Hon'ble Calcutta High Court has been filed at page nos. 68 to 70 of the paper book.
5. It is also stated in the affidavit that the Kolkata Municipal Corporation had examined the matter and thereafter a sanction was given to the building plan containing six towers of G+19 storeyed (2 numbers), G+18 storeyed (2 numbers) and B+G+18 storeyed (2 numbers) on a plot of an area measuring 21,165.738 sq. mtrs. vide B.S. Plant No. 2017130170 dated 01.12.2017 in respect of the Premise No. 88A, B. L. Saha Road, Ward No. 116, Borough-XIII, Kolkata Municipal Corporation. A provision for generation of water body of an area of 30 cottahs equaling to 2,006.706 square meters was also mentioned in the sanctioned Building Plan. An 'NOC' dated 26.12.2016 was also granted to the Respondent No.8, according sanction to the plan submitted by the Respondent No.8 in respect of the Building Plan over R.S. Plot Nos. 516, 517, 518, 519, 530, 531, 532, 533, 534, 535, 536, 537, 538, 539, 540 and 541, R.S. Khatian Nos. 34, 36, 38, 81, 90 and 689 of Mouza- Italghata, J.L. No. 10, P.S. Haridevpur (erstwhile Behala) for an area of 15 bighas 16 cottahs 06 chittacks 38 square feet, equivalent to 21,165.85 square meters of land in Kolkata Municipal Corporation Ward No. 116, Premises No. 88A, B. L. Saha Road, Kolkata. 6
6. The Committee constituted by the Tribunal has submitted its inspection report of an inspection carried out on 05.07.2021 (page no. 94 to 96 of the paper book). The relevant extract of this report reads as under:-
"About the Project:
The proposed project is a Residential Complex (named as MOURYA) located at 88A, B.L. Saha Road, P.O. & P.S.- Behala, K.M.C., Ward No. 116, Kolkata - 700053. [ Sanctioned building plan of the said project vide Building Plan No. 2017130170 dated 01.12.2017 mentions the water body area within project boundary as 2006.69 sqm. The State Level Environment Impact Assessment Authority (SEIAA), based on application by the project proponent (M/s South City Projects (Kolkata) Ltd.) and sanctioned building plan issued by the Kolkata Municipal Corporation (KMC), granted Environmental Clearance (EC) to this project vide Memo No. 1379/EN/T-II-1/038/2012 dated 06.06.2018. In the said EC, specific condition no. A.I (d) mentioned that -
(i) Existing water body of 2006.69 sq. mtr. Should not be lined and their embankments should not be cemented.
The water body is to be kept in natural conditions without disturbing the ecological habitat.
(ii) No construction is allowed on wetland and water bodies.
Subsequently, based on an application from project proponent the Environment Clearance vide letter no. 3406/EN/T-II-1/038/2012 dated 12.10.2018 was transferred to:
(i) M/s Sugam Griha Nirman Ltd.,
(ii) M/s Goodluck Infradevelopers Private Ltd.,
(iii) M/s Super Diamonds Nirman Pvt. Ltd. and
(iv) M/s Orbit Towers Pvt. Limited.
Upon perusal of records by the committee it is pertinent to mention that West Bengal Pollution Control Board had 7 earlier issued directions to the project proponent vide Memo No. 246-2N-17/2019 dated 05/03/2019 .
Field Visit and present status A field inspection of the Residential Project (named as MOURYA) was carried out on 5th July, 2021 and the following was observed:
1. The residential project is still under construction.
2. The said waterbody was found to be fenced off with bamboo poles and corrugated steel sheets.
3. That some portion of the water body was found to be covered by duckweeds and at one side a colony of emergent plants e.g. Typha sp. Peltandra sp. Etc. were observed.
4. That during inspection as earlier decided in the meeting dated 28th June, 2021, Mr. R.N. Dey empanelled surveyor of KKMC was present. He submitted his survey report before the committee on 6th July, 2021 where he mentioned that the fenced water body area found to be 2324 sqm. The survey report also mentions that on the western side of the said water body, there is also a lowland area of 2189 sqm within which water was found accumulated, at the time of survey, in an area of 1049 sqm.
Conclusion and Recommendations:
The said waterbody area as mentioned in the sanctioned plan is 2006.69 sq.m. As per survey report, the fenced waterbody area was found to be 2324 sqm. Therefore, the Committee concluded that there is no encroachment of the waterbody as mentioned in the sanctioned building plan/Environmental Clearance. Since substantial construction work is still left and there is a history of non-compliance of environmental norms by the project proponent, the Committee feel there remains a threat to encroachment/filling of the waterbody. The committee makes the following recommendations for the maintenance of the waterbody-
1. The waterbody and its banks should be kept in natural condition.
2. The waterbody should not be lined.8
3. The embankment should be utilized so that ecology at the water-soil interface is maintained and amphibians can have access to the water.
4. Care should be taken that during rains soil and muck from surrounding construction site do not enter the water body.
Grass and herbs may be grown around the water body to act as sieve.
5. Some emergent plants like Tyha and Phragmites may be maintained at one side over a small portion which have some water purification role and provide perching place for birds.
6. Water loving plants which can also secure the banks like Barringtonia Acutangula (Hijal), Pongamia pinnata and Terminalia arjuna may be planted on the banks for stabilization.
7. In order to maintain water in natural condition and prevent it from becoming breeding ground of pests some indigenous fishes and larvivorus fishes like guppy fish (mosquito control agent) may be introduced in the waterbody.
8. Any type of wastewater as domestic sewage and solid waste like construction and demolition waste should not be duped into the water body.
9. The waterbody should be cleaned on regular basis for removal of plastic waste, weeds etc.
10. Since construction work is going on, the project proponent may be directed to submit Bank Guarantee of Rs. 25 lacs for compliance of the above. In case of violation of the said recommendations, Bank Guarantee may be forfeited. This may act as deterrence against any filling up of the said waterbody in future."
7. A counter-affidavit dated 13.07.2021 has been filed on behalf of the Respondent Nos. 8 to 13, (Private Respondents), stating therein that after change of ownership from M/s South City to the Respondent Nos. 9, 10 and 11, a development agreement was entered into by the Respondent Nos. 8 to 11 with the Respondent 9 No.12 who is a registered developer with the West Bengal Housing Industry Regulatory Authority. It is also stated by the contesting Private Respondents that as per the R.S. record of rights there is no mention of any water body or the like on the premises in question. The premises comprised entirely of 'Danga' and 'Itkhola' i.e., brick kiln. Since in the R.S. record of rights the premises in question was classified as 'Danga' and 'Itkhola', conversion of the land was necessary under Section 4C of the West Bengal Land Reforms Act, 1955, and accordingly applications seeking conversion of the land, were submitted before the Additional District Magistrate and the District Land and Land Reforms Officer by the Respondent No.8 and the erstwhile owners of the South City Project (Kolkata) Limited. Thereafter, two conversion certificates both dated 27.05.2015 converting the classification of the land to 'Housing Complex' were granted. An NOC was granted by the competent authority vide certificate dated 26.12.2016 under the Urban Land (Ceiling and Regulation) Act, 1976, the copy of which has been filed as Annexure-E (page no. 223 of paper book) to the affidavit. An Environmental Clearance was also granted vide certificate dated 06.06.2018, the copy of which has been filed as Annexure-F (page no. 224 of paper book) to the affidavit. It is also stated that the Environmental Clearance has also a Building Plan which was sanctioned on 01.12.2017 and which provides for a water body measuring 2006.40 square meters.
It is also stated by the contesting Private Respondents that this water body has been voluntarily created as per the area thereof 10 duly recorded in the Building Sanction Plan and the same has remained intact as a water body.
The contesting Private Respondents further stated that the change of Environmental Clearance certificate has also been made in the name of Respondent Nos. 9 to 11 vide letter dated 12.10.2018. Consent to Establish certificate was also granted by the West Bengal Pollution Control Board on 04.01.2019, copy of which has been filed as Annexure-J (page no. 292 of paper book) to the affidavit. It is also stated that out of six towers, four towers have been completed and the beautification around the water body is also in progress. In the aforesaid four towers, there will be 212 residential units of which 134 units have already been sold and agreements entered with the flat owners and money received. It is also stated that the water body of 2006.40 square meters has been cordoned off with steel sheets on two sides in order to protect the water body.
The contesting Private Respondents have also filed Annexure- O (page no. 314 of paper book) to the affidavit which is a letter dated 09.01.2013 issued by the Director, SP Unit, Kolkata Metropolitan Development Authority (KMDA) addressed to the Additional District Magistrate and District Land and Land Reforms Officer, South 24 Parganas, stating therein that the parcel of land, i.e., the land in question, falls within the Ward No.116 of Kolkata Municipal Corporation and as per existing Land Use Development Control Plan (LUDCP) under Section 32 of the West Bengal Town & 11 Country (Planning and Development) Act, 1979, the said parcel of land falls within 'R1' zone where the setting up of multi-storeyed building is permissible.
8. A counter-affidavit dated 30.07.2021 sworn by one Mr. Suhel Saraf, on behalf of the Respondent Nos. 8 to 12, (Private Respondents), has been filed denying some of the remarks made by the Committee in its inspection report, namely, that at the time of inspection on 09.07.2021 the land was found to be low land area of 2189 square meters within which water body was found accumulated in an area of 1049 square meters. It is also stated that the land in question was classified as 'Itkhola' and 'Danga' prior to its conversion under Section 4C of the West Bengal Land Reforms Act, 1955, and has never been notified or classified in any land record, either of the Block Land and Land Reforms Officer or of the Kolkata Municipal Corporation, as a 'water body' or even 'Shali'.
9. An affidavit dated 22.10.2021 has been filed on behalf of the Applicant with regard to the report of the Committee of an inspection carried out dated 09.07.2021 and it is stated that the satellite pictures show the land to be covered by water and, therefore, it is a water body. The Applicant has also referred to a Memo dated 18.06.2010, copy of which has been filed at page no. 344 of the paper book, and submitted that it is recorded therein that for all recorded water bodies as well as water bodies actually present, a database may be created of such water bodies. 12
10. An affidavit dated 25.10.2021 has been filed on behalf of the Respondent No.4, West Bengal Pollution Control Board, directing the contesting Private Respondent Nos. 8 to 12 to submit the present status of the water body of 2006.89 square meters within the project area as per the sanctioned Building Plan of the Kolkata Municipal Corporation. The Private Respondents were also directed to submit a Bank Guarantee of Rs. 25 lacs. Along with this affidavit, another inspection report of an inspection carried out on 23.09.2021 has been filed as Annexure R-2 (page no. 372 of paper book). The observations of the Committee may be reproduced herein for proper appreciation of the case which read as under:-
Sl. Violation as observed on Observation during inspection on No. 07/01/2019 23/09/2021
1. Emission of dust was No new civil construction activity at observed due to absence open area. Construction material, of water sprinkling mainly sand stored in open place, arrangement and covered with thick plastic sheet, scattered uncovered away from the fenced pond area.
storage of construction Batching plant observed to be in material and debris dismantled condition. Construction throughout the project site. material handling activity not No screen cover wall at all observed.
used during construction.
2. No plantation activity or The first phase of the project is yet to dedicated area for such complete. Construction activity purpose including civil work for other phase not yet started.
3. Some part of the water Reference survey report of the body inside the project Kolkata Municipal Corporation (KMC) premises was found to be empanelled surveyor Mr. R.N. Dey, encroached and partially (placed before the NGT constituted filled up with construction committee on 6th July 2021), the 13 debris. Loose earth was fenced water body area is 2324 sqm.
noticed on the (which is more than 2006.69 sqm. As
embankment of the water mentioned in sanctioned plan of
body. KMC). No construction activity, no
construction debris observed near the
fenced water body.
WBPCB had imposed a Bank Guarantee of Rs. 25,00,000/- (twenty five lacs) vide memo no. 246-2N017/2019 dated 05/03/2019, as an assurance to comply with the environmental norms in future. Regarding Present Violation:-
Sl. Violation as observed on Observation during inspection on 05/07/2021 23/09/2021 No.
1. Reference 'Conclusion' of The water body is fenced. However, the NGT constituted growth of Algae observed in the pond.
committee Report 'there is Pond cleaning activity need to be no encroachment of the carried.
water body as mentioned in the sanctioned building plan/Environmental Clearance'.
WBPCB had imposed a Bank Guarantee of Rs. 25,00,000/- (twenty five lacs) vide memo no. 595-1M-11/2019 (Pt.-II) dated 16/09/2021, as per the recommendation of the committee (constituted by the Hon'ble NGT).
11. A rejoinder affidavit dated 25.10.2021 has been filed on behalf of the Applicant, denying the averments made in the affidavit of the Respondent No.7.
12. A rejoinder affidavit also dated 25.10.2021 has been filed on behalf of the Applicant, in respect of the counter affidavit of the Respondent Nos. 8 to 12.
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13. A supplementary affidavit dated 08.12.2021 has been filed on behalf of the Applicant in respect of the counter affidavit dated 13.0.2021 filed by the Respondent Nos. 8 to 12.
14. A supplementary affidavit also dated 08.12.2021 has been filed on behalf of the Applicant in respect to the affidavit in opposition of the Respondent No.7.
15. One more affidavit in rejoinder dated 08.12.2021 has been filed on behalf of the Applicant in respect to the affidavit of the Respondent No.4.
16. We have heard Mr. Ankur Sharma, the Applicant in person, as well as the learned Counsel for the other Respondents and perused the documents on record.
17. The allegation of the Applicant is that the Private Respondent Nos. 8 to 12 have illegally filled up a large water body in the Premises No. 88A, B. L. Saha Road, Ward No. 116, Police Station- Behala, District-Kolkata. Satellite pictures have also been filed as Annexure P-7 to his Original Application and it is stated that these pictures clearly show that the land in question is filled with water. The copy of the Environmental Clearance granted to the project proponent and the Private Respondents has also been filed as P-6 (page 39 of paper book) to the Original Application.
18. A perusal of the Environmental Clearance dated 06.06.2018 shows the total land area to be 21165.75 square meters. The 15 Applicant has, however, referred to the letter of the Chief Engineer, Operation & Execution Cell, West Bengal Pollution Control Board dated 05.03.2019, copy of which has been filed as Annexure-P-2 (page no. 30 of paper book) to the Original Application, wherein an observation has been made that 'some part of the water body inside the project premises was found to be encroached and partially filled up with construction debris. Loose earth was noticed on the embankment of the water body. Overall gross violation of environmental norms was observed.' The West Bengal Pollution Control Board, therefore, directed the M/s Sugam Griha Nirman Limited, to submit a Bank Guarantee of Rs. 25 lacs valid for 12 months and to strictly comply with all environmental norms. Mr. Ankur Sharma, the Applicant in person, therefore, submits that this document alone shows that there is a water body on the said land in question which has been encroached upon by the project proponent.
19. However, we may note that this letter of the Chief Engineer, West Bengal Pollution Control Board, is a stray document and is based on an inspection conducted on 07.01.2019 and does not contain any relevance to any land records to show what was the nature of the land; as to whether in the L.R. records this land was shown as a water body or as a 'Danga' or 'Itkhola'. We are, therefore, of the view that no reliance can be placed upon the said ambiguous letter of the Chief Engineer, West Bengal Pollution Control Board dated 05.03.2019 to draw an inference that the land 16 in question was at any given point of time a water body which has been encroached by the Private Respondent Nos. 8 to 12.
20. On the other hand, a perusal of the Environmental Clearance dated 06.06.2018 granted to the project proponent M/s South City Projects (Kolkata) Limited, issued by the State Environment Impact Assessment Authority (SEIAA), West Bengal, clearly mentions a water body measuring 2006.4 square meters which is 9.48% of the entire project area. This document does not show that the water body was pre-existing but rather suggest that the project proponent in his proposal was required to create this water body of 2006.4 square meters. The Condition No. (d) under heading 'Water Body Conservation' it is mentioned that existing water body of 2006.96 square meters (9.64% of the total land area) should not be lined and their embankments should not be cemented. The water body is to be kept in natural conditions without disturbing the ecological habitat.
21. The order dated 27.05.2015 passed by the Collector and District Land and Land Reforms Officer, South 24 Parganas, Alipore, under Section 4C of the West Bengal Land Reforms Act, 1955, shows the land in question to be recorded as 'Itkhola' or 'Danga' being R.S. Khatian Nos. 34, 36, 38, 81, 90 and 689 and R.S. Plot Nos. 516, 517, 518, 519, 530, 532, 533, 534, 535, 536, 537, 538, 539, 540 and 541, in Mouza-Italghata, J.L. No. 10, P.S.- Behala, which is the land in question. In the face of these land records, it cannot be assumed that the land in question is a water 17 body and in any case the Applicant has not filed any documents by way of land records to show that the land in question was at any point of time or is currently recorded as a water body.
22. The Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976, Sub-Divisional Officer, Alipore, Sadar, South 24 Parganas vide his letter dated 26.12.2016 has also granted NOC for the land in question for sanction of Building Plan in terms of Rule 4 (4) of the Building Rules, 1990 to the Kolkata Municipal Corporation. Environmental Clearance has also been granted by the SEIAA, West Bengal vide its order dated 18.02.2014. The Committee constituted by this Tribunal in its inspection conducted on 05.07.2021 has also noted that the Building Plan No. 2017130170 dated 01.12.2017 mentions a water body within the project boundary measuring 2006.69 square meters whereas the fenced water body area was found to be 2324 square meters. This report also noted that in a previous survey report submitted before the Committee by the Surveyor of Kolkata Municipal Corporation on 06.07.2021 it is mentioned that on the western side of the said water body, there is also a lowland area of 2189 square meters within which water was found accumulated, at the time of survey, in an area of 1049 square meters.
23. The specific stand of the Private Respondent Nos. 8 to 12 is that the water body in question as noted in the Committee report is a new water body created by the Respondents themselves on a portion of the property as per the sanctioned Building Plan for 18 purposes of beautification of the project. We may note that Environmental Clearance itself provides for a water body area of 2006.4 square meters (9.48%) in the proposed project. The letter of the Director, SP Unit, Kolkata Metropolitan Development Authority (KMDA) dated 09.01.2013, also clearly mentions that the parcel of land within Ward No. 116 of Kolkata Municipal Corporation, i.e., the land in question, which falls within a 'RI' zone wherein setting up of a multi-storeyed building is permissible.
24. The inspection report of an inspection carried out on 23.09.2021 (page no. 372 of paper book), also mentions that the water body is fenced by a tin sheet and the low lying area is filled with rainwater (due to heavy shower for last few days). This report categorically mentions that 'no construction activity, no construction debris observed near the fenced water body'. The Committee has also noted that in the survey report of the Kolkata Municipal Corporation submitted before the Committee on 06.07.2021 it is mentioned that the fenced water body measures 2324 square meters (which is more than 2006.69 square meters as mentioned in the sanctioned Building Plan of Kolkata Municipal Corporation). This shows that the water body in question was part of the sanctioned Plan of the Kolkata Municipal Corporation and only goes to buttress the claim of the Respondent Nos. 8 to 12 in their affidavit that the water body in question within the project premises was voluntarily created by the Respondents themselves as one of the conditions in the Environmental Clearance dated 06.06.2018 19 granted to the proposed Project and was not a pre-existing water body.
25. Mr. Ankur Sharma, the Applicant in person, reiterated his earlier submissions that even in the satellite pictures the area in question is shown being covered with water and that, therefore, it is a water body. However, as we have already noted hereinabove, there is no land revenue record filed by the Applicant to show that the land in question was ever recorded in the revenue records as a water body. The Committee in its report has itself noted that the land in question is filled with water as there were heavy showers. This would not convert the nature of the land into one of a water body. The letter of the Chief Engineer, West Bengal Pollution Control Board dated 05.03.2019 mentioning that on some part of the water body inside the project premises was found to be encroached and partially filled up with construction debris, cannot override the land revenue record and if ever a question arises as regards the character of the land, the land revenue record will be the only foundational evidence to fall back upon in order to determine the nature and character of the land in question.
26. For the reasons aforesaid and from the overwhelming documentary evidence on record, we find that the land in question was never recorded as a water body or even as a 'Shali' and it has always been recorded in the land revenue records as 'Danga' or 'Itkhola'.
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27. Therefore, on a conspectus of facts, we find no merit in the present Original Application and the same is accordingly dismissed.
28. There shall be no order as to costs.
........................................ B. AMIT STHALEKAR, JM ......................................
SAIBAL DASGUPTA, EM Kolkata, February 08, 2021, Original Application No. 01/2021/EZ AK 21