National Green Tribunal
Krishna Banerjee vs State Of West Bengal on 27 September, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No.56/2023/EZ
IN THE MATTER OF:
Mrs. Krishna Banerjee,
W/o Sri Subrata Bandyopadhyay,
R/o Krishna, Rabindranagar, P.O.-Asansol,
P.S.-Hirapur, District-Paschim Bardhaman,
Pin - 713304,
....Applicant(s)
Versus
1. The Government of West Bengal,
Through its Chief Secretary,
Nabanna, 325, Sarat Chatterjee Road,
Howrah - 711102,
2. The Principal Chief Conservator of Forest, General,
Government of West Bengal,
Aranya Bhavan, Block-LA-10A,
Sector-III,Salt Lake City,
Pin - 700106,
3. The District Collector, Paschim Bardhaman,
Kanyapur, P.O.-R.K. Mission,
District-Paschim Bardhaman,
Pin - 713305,
4. The Senior Environmental Engineer,
West Bengal Pollution Control Board,
Asansol Regional Office,
Kalyanpur Satellite Township Project,
Dr. B. C. Roy Road, P.O.-Dakshin Dhadka,
District-Paschim Bardhaman,
Pin - 713302,
5. The Commissioner, Asansol Municipal Corporation,
Post Office-Asansol,
District-Paschim Bardhaman,
Pin - 713301,
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6. The Chief Executive Officer,
Asansol Durgapur Development Authority, Asansol,
Post Office-R. K. Mission,
District-Paschim Bardhaman,
Pin - 713305,
7. The Sub-Divisional Land and Land Reforms Officer, EP-I,
Asansol, Kanyapur
Post Office-R.K. Mission, District-Paschim Bardhaman,
Pin - 713305,
8. Anand Real Dev. Pvt. Ltd.,
Through its Director, Anand Agarwal,
S/o Hari Narayan Agarwal, Shanti Niwas, Ground Floor,
G.T. Road, Post Office-Asansol, District-Paschim Bardhaman,
Pin - 713304,
9. Sri Ashok Gutgutia,
S/o Late Ramawatar Gutgutia,
R/o Saradapally, Post Office-Asansol,
P.S.-Asansol (South), District-Paschim Bardhaman,
Pin - 713304,
10. Sri Rishabh Gutgutia,
S/o Ashok Gutgutia,
R/o Saradapally, Post Office-Asansol,
P.S.-Asansol (South), District-Paschim Bardhaman,
Pin - 713304,
11. Smt. Shashi Gutgutia,
W/o Ashok Gutgutia,
R/o Saradapally, Post Office-Asansol,
P.S.-Asansol (South), District-Paschim Bardhaman,
Pin - 713304,
....Respondent(s)
COUNSEL FOR APPLICANT(S):
None
COUNSEL FOR RESPONDENT(S):
Mr. Rajib Ray, Advocate for R-1,2, 3&7,
Mr.Dipanjan Ghosh, Advocate for R-4,
Ms. Rajarshi Bhattacharya, Advocate for R-6,
Mr. Prashant Agarwal, Advocate for R-8,
Mr. Shiv Shankar Sharma, Advocate for R-9 to 11,
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JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE DR. ARUN KUMAR VERMA (EXPERT MEMBER) __________________________________________________________________ Reserved On:-21stSeptember, 2023 Pronounce On:- 27thSeptember, 2023 __________________________________________________________________
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) Heard the learned Counsel for the Applicants as well as thelearned Counsel for the Respondents and perused the documentson record.
2. The Applicant in the present Original Application is, inter-alia, seeking restoration of the water body to its original shape and for taking steps against the erring authorities.
3. The allegation in the Original Application is that the property being C.S. Plot No. 3010, C.S. Khatian No. 634 under Mouza-Santa, J.L. No. 28, Police Station-Asansol, having an area of 1.41 acres was originally recorded as 'Pukur' (namely Kamal Kendya Gora) and was used for irrigation and stands recorded in the name of Manmatha Nath Dey and Amulya Ratan Dey, both son of Braja Nath Dey.
4. It is stated that in the Revisional Record of Rights published in 1955, the aforesaid C.S. Plot NO.3010 comprising R.S. Plot No. 3 2016, Mouza-Santa, J.L. No. 20, (presently J.L. No. 120) Police Station-Hirapur is recorded as 'Pukur' having an area of 1.41 acres.
5. It is stated that the Respondent No.9 acquired a piece of land comprising R.S. Plot No. 2016, having an area of 0.0729 acres recorded as 'Pukur' along with another Plot comprising R.S. Plot No. 2017, having an area of 0.1618 acres, R.S. Plot No.2018, having an area of 0.0323 acres, R.S. Plot No. 2019, having an area of 0.0486 acres and R.S. Plot No. 2021, having an area of 0.0244 acres and the total area is 0.34 acres by way of deed of sale, gift, inheritance.
6. It is alleged that the plot is divided into two parts; (a) 0.0729 acres recorded as 'Pukur' and (b) the remaining is 0.2671 acres recorded as 'other class'.
7. It is further alleged that the Respondent No.10 acquired the land from the Respondent No.9 comprising of R.S. Plot No. 2016, having an area of 0.0729 acres recorded as 'Pukur' with other plots and the Respondent No.10 has transferred the aforesaid plot of land to Respondent No.11 who became owner of the aforesaid plots of land.
8. It is stated that the Respondent No.11 by another gift deed in 2002 became the owner of the land comprising R.S. Plot No.2016, having an area of 0.09 acres which is recorded as 'Pukur' along with R.S. Plot No.2017, having an area of 0.20 acres, R.S. Plot No. 2018, having an area of 0.04 acres, R.S. Plot No.2019, having an area of 0.06 acres and R.S. Plot No. 2021, having an area of 0.03 acres, the total area is 0.42 acres of land. It is stated that this plot is divided 4 into two plots of which 0.09 acres is recorded as 'Pukur' and 0.33 acres is recorded as 'other class' of land.
9. It is alleged that the Respondent No.8 acquired a plot of land from Respondent No.11 by deed of sale dated 14.11.2022 and from December, 2022, he has started destroying the alleged plot of land recorded as 'Pukur' having an area of 0.09 acres situate at R.S. Plot No.2016, by filling earth and starting construction of a multi-
storeyed building thereon.
10. It is stated that the Applicant's Counsel submitted an RTI application on 06.02.2023 before the Respondent No.7, Sub-
Divisional Land and Land Reforms Officer, Paschim Bardhaman, seeking conversion case number of the plots but it is stated that no reply has been furnished by the Respondent No.7 and, therefore, a First Appeal dated 02.05.2023 has been sent by mail dated 08.05.2023 before the First Appellate Authority regarding non-
furnishing of RTI reply.
11. At the time of admission, the Tribunal constituted a Committee comprising of the following members: -
i. Senior Scientist, West Bengal Pollution Control Board, ii. District Collector, Paschim Bardhaman, or his nominee not below the rank of Additional District Magistrate; iii. Chief Executive Officer, Asansol Durgapur Development Authority or his nominee,
12. The Committee was directed to visit the site in question and submit its Inspection Report.
513. The Respondent Nos.9 to 11 have filed affidavit dated 15.07.2023and their stand is that the Respondent No.9 along with his relatives had purchased the properties mentioned as under: -
(i) Khatian No.634 of Plot No.3010 measuring .09 acre
(ii) Khatian No.648 of Plot No.3012 measuring .04 acre
(iii) Khatian No.48 of Plot No.3011 measuring .20 acre
(iv) Khatian No.48 of Plot No.3015 measuring .03 acre
(v) Khatian No.616 of Plot No.3013 measuring .06 acre Vide deed of sale no.7484, 7485 and 7486 dated 24.12.1991 from one Shri Pranab Ghosh along with existing structure namelyHomestead land and two storeyed building covering an area of 3100 sq.ft. on the ground floor and 2600 sq.ft. on the first flooralong with garage, servants quarter, septic tank situate in District Burdwan, P.S. Hirapur, Mouza-Santa. It is also stated that the previous owner Pranab Ghosh had purchased the same property through sale deed no.3460 in the year 1956, deed no.547 in the year 1952, deed no.5264 in the year 1954 and deed no.2376 in the year 1956. It is further stated that at the time of purchase of the property of 1991 the same was not recorded as 'Pukur' and, therefore, the question of its conversion from Pukur to Homestead is absolutely baseless. It is stated that this property at the time of its purchase was under the tenanted occupation of the Additional Controller of Civil Defence, Asansol at Rs.750/- per month. It is also stated that C.S. plot no. of property in question was upgraded to,
(i) R.S. Plot No.2016 measuring0.09 acre 6
(ii) R.S. Plot No.2017 measuring 0.20 acre
(iii) R.S. Plot No.2018 measuring 0.04 acre
(iv) R.S. Plot No.2019 measuring 0.06 acre
(v) R.S. Plot No.2021 measuring 0.03 acre Total land measuring 0.42 acres.
14. It is further stated that R.S. plots were duly upgraded to L.R. plot no. under Khatian No.7098
(i) L.R. Plot No.1522 measuring 0.0200 acre
(ii) L.R. Plot No.1526 measuring 0.2400 acre
(iii) L.R. Plot No.1527 measuring 0.0100 acre
(iv) L.R. Plot No.1528 measuring 0.1500 acre Total land measuring area 0.42 acre duly recorded and mutated Asbaid, Bastu and Danga respectively.Documents to that effect have been filed as Annexure to the affidavit.
15. The Respondent No.3, District Magistrate, Paschim Bardhaman has filed affidavit dated 14.07.2023. Along with this affidavit, Inspection Report has been filed of an inspection carried out on 21.06.2023. The Inspection Report of the Committee reads as under: -
"Report of the Committee as per the order passed by Hon'ble National Green Tribunal in the matter of O.A. No. 56/2023/EZ (Mrs. Krishna Bannerjee -Versus- The (Government of West Bengal &Ors.) A) Constitution of the Committee: - Hon'ble National Green Tribunal, Eastern Zone, Kolkata, in its order dated 18.05.2023, passed in Original Application No. 56/2023/EZ constituted a three-member joint Committee to be headed by the District Collector, Paschim Bardhaman or 7 his nominee not below the rank of Additional District Magistrate with other members being Senior Scientist, West Bengal Pollution Control Board and Chief Executive Officer, Asansol Durgapur Development Authority or his nominee.
The Hon'ble National Green Tribunal, Eastern Zone has also directed that "The Committee shall visit the site in question and submit its report with regard to the allegations nit in the Original Application within four weeks".
As per the direction of the Hon'ble National Green Tribunal, District Magistrate, Paschim Bardhaman by Memo bearing No. 2194/MM/DL&LRO-PAB/ 23 dated 02.06.2023 directed i) Additional District Magistrate &D.L.& L.R.O., Paschim Bardhaman being the nominee of the District Magistrate, Paschim Bardhaman-Member; ii) Assistant Executive Officer being the nominee of the Chief Executive Officer, Asansol Durgapur Development Authority- Member;iii) Senior Scientist, West Bengal Pollution Control Board-Member to conduct spot enquiry/inspection of the area in question and as per the decision of the committee the site visit was conducted on June 21, 2023.
Thefollowing members were present during the site visit:
i. Senior Scientist, West Bengal Pollution Control Board, ii. District Collector, Paschim Bardhaman, or his nominee not below the rank of Additional District Magistrate iii. Chief Executive Officer, Asansol Durgapur Development Authority or his nominee.
On perusal of the aforesaid Original Application, it is learnt that the applicant filed the said application on the allegation that the character of the said plots i.e. C.S. Plot No. 3010, corresponding to R.S. Plot No. 2016, Mouza- Santa, J.L. No.-20 (presently 120), recorded as Pukur, corresponding to L.R. Plot Nos. 1513, 1517, 1519, 1520, 1524, 1525, 1527, 1659, 1668, 1669, 1670 and 1671 have been converted into Bastu in defiance of the provisions of the West Bengal Fisheries (Amendment) Act, 1993.
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B) Observation: -
The Committee members have considered relevant documents for ascertaining as to whether the allegations as made in the Original Application are associated with the instructions made or are being existing for the present in the Sarada Pally and in course of enquiry, received some documents containing building Plans, Sale Deeds, Partition Deeds, Electricity Bills, etc., which indicates that in and around 1960-68, all the buildings have been constructed, by conduct of the parties, the site in question have been used by the local denizens for a period of more than 50 years as Bastu, which, at the same time has given scope to the Municipal Corporation to construct road and to usher the corresponding urban facilities to the people of the said area.
C) Legal Status: -
The Rule 166 of the Land as Land Reforms Manual, 1991, which have direct bearing in the subject mentioned matter is reproduced below:
Where conversion has been made before making application for permission. - (1) While disposing of a petition for conversion, it may come to the notice of the Collector that the land has been already converted to some use other than that appearing from the record-of rights. Such a case should normally be dealt with under section 4(4). In such cases, it should be enquired as to whether the change in use has been made in the usual course of nature or by deliberate action on the part of the applicant or any other person; and, in the later case, it should also be ascertained whether the change took place before 24.3.1986 i.e. the date of publication in the official gazette of the West Bengal Land Reforms (Amendment) Act, 1981.
(ii) If the change in the use of land has occurred
(a) in the usual course of nature, or (b) has occurred at a time when such change was not unlawful, (vide proviso to section 4B), or (c) has occurred due to developmental activities of the Government or of a local body in the surrounding area, or (d) due to urbanization in the 9 surrounding area, the applicant should be informed that the change is being noted in the record-of-rights, and the said record should be corrected accordingly in due course. If there was a reasonable cause made behind the change that occurred, the Collector may consider the merit of the case, if post-facto permission should be granted.
[In this connection the expression "without any reasonable cause" in section 4 (4) (a) may be referred to.] On the other hand, if it is proved that the change was deliberately made without reasonable cause after 24.3.1986, the land may be vested under section 4(4Xa) or penal action may be taken under section 4D unless prosecution under section 4D is barred by limitation under the Code of Criminal Procedure.
(iii) It is apprehended that there may be many cases of unauthorized change in land-use where no application for permission to make such change has even been made.
Revenue Inspectors shall make enquiries regarding such unauthorized conversion during their tour in their areas. If any such case comes to notice, penal action as contemplated in subsection (4) of section 4 or section 4D should be taken, unless the Collector grants post facto permission as mentioned in sub-rule (i) above.
(iv) While deciding a matter as mentioned in sub- rules (i), (ii) and (iii) above, the emphasis should be on the bonafides or absence of bonafides of the person making change in land use."
D) Findings:-
The allegation as made in the Original Application like change in character of the land from a "Pukur" to "Basta" does not substantiate since the Building Plan vide Memo bearing No. 300/B dated November 11, 1968 was issued in favour of one Mrs. Roma Mukherjee at Ashoke Pally, near Coal Board, Asansol by the Asansol Municipality, which would corroborate the fact that actions pertaining to conversion have been given effect to much 10 prior to the enforcement of the Fisheries Act in question, hence, violation does not attract and therefore, allegation does not substantiate.
It is found from the Deed of Partition executed in the year 3965 that the partition between one Sudhindra Majumder and Mrs. Roma Mukherjee was executed, which, would lay emphasis upon the fact that much before coming into operation of the West Bengal Fisheries Act, 1984, the process of conversion has been given effect to.
It is also found from Deed of Sale executed on December 03, 1964 before the Sub-Registrar, Asansol that Plot No. 21 bearing C.S. Plot No. 3010 (P), 3040(P), 3129(P), admeasuring total area 0.33 acres, Mouza-Santa had been sold out in the relevant period by one Ashoke Chatterjee into favour of Sudhindra Majumder and Mrs. Roma Mukherjee as Bastu land.
It appears from the conditions of the Deed of Sale executed on the 6th Day of August, 1979 between Smt. Archana Saha and Shri Rowland Ranjit Jana that the Plot bearing Nos. 3010, 3040 (R.S. Plot Nos. 2057 and 2016), appertaining to C.S. Khatian No.634 (R.S. Khatian No. 2326), Mouze Santa are fit for bastu and as such, the said lands were sold out by the Vendor unto favour of the Purchaser.
It appears that the Release Deed of 1960 had augmented the scope for enhancing residential accommodation over the site in question.
The aforesaid fact has further been tallied with the Mouza Map bearing caption "Zilla-Paschim Bardhaman, Mouza-Santa, Sheet No.:- 2, P.S.-Hirapur, J.L. No.-20, Mouza Code:- 2305120", which reveals that the said Map has been brought into existence by continuouslyrevising the Map made in the year 1954-1969, in this regard, the remarks in the L.R. Map reveals the following:- "Made by the Authority of Government in 1973-2006 under the West Bengal Land Reforms Act, 1955 (Act X of 1956) and the West Bengal Non-Agricultural Tenancy Act, 1949 (Act XX of 1949) by revising the Map made in 1954-1969- Settlement Officer & Superintendent of Survey".
11Consequently, the L.R. records, which have been initiated in the year 1995-1996 indicates that some of the plots in the said Mouza have been converted into the character "Bastu".
The provisions of the West Bengal Fisheries Act, which have been framed by the State of West Bengal in the year 1984, which also received the Presidential assent on September 14, 1984 alongwith the amendments thereto are not applicable in the premises of the facts of the instant case since the said Act has been brought into existence, subsequent to the cut-off date being March 24, 1983, as referred to in the preceding paragraphs.
The committee members have also considered the pros and cons of the Urban Land (Ceiling and Regulation) Act, 1976, which has been enacted with an objective to prevent concentration of urban land in the hands of few persons and to prevent profiteering so that equitable distribution of land can be achieved for the benefit of the entire population. The scheme of said Act includes within its ambit the Urban Lands and thereby, excludes the agricultural and as well the water bodies since, the water bodies are usually existing over the land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated, so far the provisions of the said Act are being considered and as such, includes further within its nature and scope the Bastu lands, inconsequence thereof, the Committee members have noticed that with respect to the Plot bearing Nos. 3010, 3040 (R.S. Plot Nos. 2057 and 2016), appertaining to C.S. Khatian No.634 (R.S. Khatian No. 2326), Mouza Santa that necessary permission was granted by the competent authority under the provisions of the U.L.C. Act, 1976 vide U.L.C. Case No. 19/1979.
It is hereby mentioned that the following list of plots have been referred to in the Original Application, may be it is having C.S./R.S./L.R. status separately, however, on being compared, the present status alongwith reasons for conversion in brief are given below:-
Mouza RS Plot No. LR Plot Erstwhile Present Status with Reasons (Correspondin Status 12 g CS Plot No. Santa 2016 (3010) 1513 (part) Pond ('Pukur') As per LR Record the present status Santa 2016 (3010) 1516 (part) Pond ('Pukur') of the Plot No.1518, 1525 and 1559 Santa 2016 (3010) 1517 (part) Pond ('Pukur') are classified as Road and the rest Santa 2016 (3010) 1518 (part) Pond ('Pukur') Plots are classified as Bastu but all Rasta are physically used as 'Bastu'. It is Santa 2016 (3010) 1519 (part) Pond ('Pukur') again pertinent to mention that all Santa 2016 (3010) 1520 (part) Pond ('Pukur') the Plots are used as 'Bastu' for more Santa 2016 (3010) 1524 (part) Pond ('Pukur') than 50 years due to urbanization of Santa 2016 (3010) 1525 (part) Pond ('Pukur') the surrounding area. As such as per Rasta Rule 166 (ii) d of West Bengal Land Santa 2016 (3010) 1527 (part) Pond ('Pukur') & Land Reforms Manual, 1991, it is Santa 2016 (3010) 1528 (part) Pond ('Pukur') also eligible for post facto conversion.
Santa 2016 (3010) 1559 (part) Pond ('Pukur') Those factums are revealed from the
Rasta Registered deed of Release (1960),
Santa 2016 (3010) 1667 (part) Pond ('Pukur') Registered sale deed (1964),
Registered partition deed (1965),
Santa 2016 (3010) 1668 (part) Pond ('Pukur')
sanctioned building plan (1968).
Santa 2016 (3010) 1669 (part) Pond ('Pukur')
Santa 2016 (3010) 1670 (part) Pond ('Pukur')
Santa 2016 (3010) 1671 (part) Pond ('Pukur')
From the above referred Rule 166 of the Land & Land Reforms Manual, 1991, it is amply dear that the cut- off dated for recording the effect of conversion is March 24, 1986, however, the documents, which have been received in course of enquiry clearly stipulates that before coming into operation of the aforesaid cut-off date, the subject lands, as referred to in the Original Application at Mouza- Santa have been put into use by the act of the parties for the purpose "Bastu", which, has further been buttressed with the sanction of Building Plan in the year 1968 by the Asansol Municipality.
In the conspectus of the aforesaid, the Committee is of the view that after conducting inquiry as per the order issued by District Magistrate, Paschim Bardhaman in compliance with the direction issued so far by Hon'ble Tribunal, none of the allegations made by the concerned Original Applicant substantiate and no cause of degradation of the Environment 10 been noticed and since, the Pukur was converted long back by the act of the parties into Bastu, corroborated by the relevant documents 13 received in course of enquiry and have been made so, prior to implementation of the West Bengal Fisheries Act, 1984, including its amendments thereto, hence, the violations of the Act under no reference have been attracted to."
16. The Inspection Report of the Committee discloses that Building Plan vide Memo No.300/B dated 11.11.1968 was issued in favour of one Mrs. Roma Mukherjee by the Asansol Municipality which wouldshow that actions pertaining to conversion of the land had been given effect to much before the enforcement of the West Bengal Inland Fisheries Act, 1984. It is also stated that change in classification of the land had occurred long before the coming into force of the West Bengal Land Reforms (Amendment) Act, 1981 and under Rule 166 of Land & Land Reforms Manual, 1991, the cut-off datefor recording the effect of conversion was given as March 24, 1986 and, therefore, the documents on record relating to the property in question would show that the conversion if any had already been carried out prior to the cut-off date ofMarch 24, 1986.
17. The Committee Report further mentions that as per the land record the present status of the plots is 'Rasta' and 'Bastu' and the status as such has continued formore than 50 years. It is also stated that the plot bearing Nos.3010, 3040 (corresponding to R.S. Plot Nos.2057 and 2016) appertaining to C.S. Khatian No.634 (R.S. Khatian No.2326), Mouza-Santa has been converted to Bastu land under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 vide U.L.C. Case No.19/1979.
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18. On a conspectus of facts, we find the land in question had lost its character as 'Pukur' and has also been converted into 'Bastu (Homestead) land' and Rasta much prior to cut-off date of March 24, 1986 as given in the West Bengal Land Reforms Act, 1955 and Rules made thereunder as amended from time to time and, therefore, there is no merit in the present Original Application and the same is accordingly dismissed.
19. InterlocutoryApplications, if any, stand disposed of accordingly.
20. There shall be no order as to costs.
........................................ B. AMIT STHALEKAR, JM ................................................... DR. ARUN KUMAR VERMA, EM Kolkata, September27, 2023, Original Application No.56/2023/EZ MN 15