National Green Tribunal
Sirin Tammana vs State Of Odisha Represented By ItS ... on 1 March, 2023
Item No.08 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(THROUGH PHYSICAL HEARING WITH HYBRID MODE)
ORIGINAL APPLICATION NO.132/2022/EZ
IN THE MATTER OF:
1. Sirin Tammana
W/O: Rashmin Kumar Panda,
Aged about 35 years, Advocate by Profession,
Resident of Panigrahy Nagar,
P.O: PanigrahyPentho, First Gate,
Digapahandi Road,
P/S :Badabazar,
Berhampur :760006,
Dist.: Ganjam,
Odisha
2. MadhusmitaJadab
D/O: Late Kailash Chandra Jadab,
Aged about 35 years, Advocate by Profession,
Resident of Babajitota Street,
P.O: Berhampur,
P/S :Badaiyanathpur,
Berhampur :760001,
Dist.: Ganjam,
Odisha
3. Kishore Chandra Behera
S/O: Late Parsuram Behera,
Aged about 50 years, Advocate by Profession,
Resident of Lanjipalli Main Road,
P.O: Berhampur,
P/S :Badaiyanathpur,
Berhampur :760008,
Dist.: Ganjam,
Odisha
4. NatabaraSahu
S/O: Late GurunathSahu,
Aged about 61 years,
Vill./P.O: Indrakhi,
P/S :Golanthara,
Pin :761008,
Dist.: Ganjam,
Odisha
.... Applicant(s)
Versus
1. State of Odisha,
Represented by it's Chief Secretary to Govt. of Odisha,
State Secretariat,
1
Bhubaneswar,
Pin - 751001,
Odisha
2. Additional chief Secretary to Government,
Revenue and Disaster Management Department,
Government of Odisha,
State Secretariat,
Bhubaneswar
Pin - 751001,
Odisha
3. Member Secretary,
Odisha State Pollution Control Board,
Paribesh Bhawan,
A/118, Nilakantha Nagar, Unit-8,
Bhubaneswar,
Pin - 751012,
Odisha
4. Revenue Divisional Commissioner, Southern Division,
At/P.O: Berhampur,
Pin - 760004,
District :Ganjam,
Odisha
5. Collector-Cum-District Magistrate,
Ganjam Collectorate,
At P.O: Chatrapur,
Pin - 761020,
Dist.: Ganjam,
Odisha
6. RatnakaraSabat, Vice President,
Sri SriSriSidha Binayak Pitha
Aged about 62 years,
Son of Late DandapaniSabat,
Resident of Hill Patna Street, Main Road,
P.S. Gosalnugaon,
Berhampur,
Ganjam,
Odisha
.... Respondent(s)
Date of hearing: 01.03.2023
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
For Applicant(s) :Mr. Biranchi Narayan Mahapatra, Adv. (in Virtual Mode)
For Respondent(s) :Ms. Samapika Mishra, ASC for R-1,2,4& 5 (in Virtual Mode),
Ms. Papiya Banerjee Bihani, Adv. for R-3 (in Virtual Mode),
Mr. Surya Prasad Misra, Sr. Advocate a/w
Ms. L.K. Maharana, Advocate for R-6 (in Virtual Mode),
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ORDER
1. Mr. Biranchi Narayan Mahapatra, learned Counsel is present (in Virtual Mode) on behalf of the Applicants.
2. This Original Application has been filed by the Applicants on the allegations that Plot Nos.1290, 1291/1826, 1211, 1291, 1194 known as Hanuman Bandha (Common Water Body) and its embankment relating to the Plot Nos. 1290 (Ac.1.027 Decimal), 1291/1826 (Ac. 0.246 Decimal), 1211 (Ac. 0.546 Decimal), 1291 (Ac. 0.395 Decimal), 1194 (Ac. 0.250 Decimal) recorded as Jalasaya-II and its embankment having total area of Ac. 2.464 Decimal out of Khata No.1619 at Baidyanathpur Mouza under Berhampur Tahasil of Ganjam District of Odisha, has been encroached by constructing a Ganesh Temple/Human Temple/Kalayan Mandap on this Water Body.
3. According to the Applicants, they have received this information under Right to Information Act, 2005, copy of which has been filed as Annexure-A/I (Series from Page Nos.27-31) to the Original Application.
4. Affidavit dated 27.10.2022 has been filed on behalf of the Respondent No.3, Odisha State Pollution Control Board. Along with this affidavit, an Inspection Report has been filed which reads as under :-
"INSPECTION REPORT OF HANUMAN BANDHA, WATER BODY SITUATED AT WARD NO.36, IN BAIDYANATHPUR MOUZA UNDER BERHAMPUR TAHASIL IN THE DISTRICT OF GANJAM IN THE MATTER OF O.A. NO.132/2022/EZSIRIN TAMMANA & ORS. VRS. STATE OF ODISHA & ORS.
=x=x=x=x=x=x=x=x==x=x=x=x=x=x=x=x=x=x=x=x=x= 3 Following observations are made during Inspection :-
1. Lanjipalli-Krushnachandrapur municipality road exists on the Adi of Water body in West direction.
2. Lanjipalli-Ramnagar municipality road exists on the Adi of Water body in South direction.
3. Paver made road has been constructed on the Adi of Water body in East and North direction.
4. From the surroundings it is observed that Hanuman Bandha is being used for bathing purpose by the local people.
5. No direct discharge of sewage to the Hanuman Bandha was observed during inspection.
6. North-East Corner of Hanuman Bandha water body is filled with Algee, crabgrass and yellow nutsedge and other foreign particles on its surface.
7. Few quantities of used plastic bottles and garbage are also found floating at different portions of the Water body.
8. Guard wall of one feet height has been constructed around the water body (except bathing ghats) to restrict the flow of surface runoff during rainy season.
9. It was also observed that due to the religious rituals and believing, people are disposing the worshiping wastes such as flowers, leaves and other solid materials in to the Hanuman Bandha.
10. It was apprehended from the surroundings, during rainy season surface run off might be discharged into the water body through bathing Ghats as guard wall was not constructed in those locations.
11. There is no provision for removal of excess water during rainy season from the water body.
12. Collected one no. of water sample from Hanuman Bandha on 11.10.2022 for analysis. The analysis result thus obtained indicates that water quality does not conform to Class B (Outdoor Bathing (Organised) with respect to Biochemical Oxygen Demand (BOD), Dissolved Oxygen, Total Coliform (TC), MPN/10 ml and Fecal Coliform (FC), MPN/100 ml as per MoEF&CC Notification vide GSR No. 742(E) dtd.
25.09.2000 for outdoor bathing.
Conclusion & Recommendations :-
In view of the above following recommendations are made :-4
1. Municipal Authority shall take necessary measures to remove the solid mater4ials including plastic bottles, Algae, crabgrass, yellow nutsedge and other foreign particles from the surface of the water body on regular interval basis.
2. There shall be provision for removal of excess water during rainy season from the Hanuman Bandha.
3. Awareness shall be created among the local people of the surrounding areas to prevent disposal of garbage/solid wastes/ worshiping wastes into the water body"
5. Thereafter an I.A. No. 231/2022/EZ has been filed by the Sri Sri Sri Sidha Binayak Pitha through its Vice President claiming to be the Vice President of the Trust. It is stated in the said I.A. that initially the Deity was represented by 'Sweet Club', a non-
Government Social Organization registered under the Societies Registration Act, 1860, and thereafter, the management of the temple came under the present Trust and, therefore, the Trust is a necessary party in the present proceedings.
6. Mr. Biranchi Narayan Mahapatra, learned Counsel for the Applicants, stated that he had no objection if the Trust of Sri Sri Sri Sidha Binayak Pitha through its Vice President was impleaded in the array of Respondents.
7. Accordingly the I.A. No.231/2022/EZ was allowed and the Applicant was directed to implead Sri Sri Sri Sidha Binayak Pitha through its Vice President in the array of Respondents as 'Respondent No.6'.
8. The Collector & District Magistrate, Ganjam, Respondent No.5, has filed affidavit dated 12.12.2022, stating therein that the alleged Pond commonly known as 'Hanuman Bandha' does not exist as a Water Body over the entire piece of land measuring Ac. 2.464 decimals in Khata No. 1619, Plot Nos. 1290, 1291/1826, 1211, 1291, 1194 of Mouza-Baidyanathpur, under Tehsil-Berhampur, 5 District-Ganjam. It is stated that constructions have been made over the said land which had lost its characteristics as 'Jalasaya' and the Kissam of the said land has also been changed following due procedure of law. It is also stated that originally Hanuman Bandha was a tank used for channeling water for irrigation by the Irrigation Department but over the period of several decades it has lost its characteristics as a 'Water Body' and there is no water body over the said land.
9. In the affidavit, it is also stated that constructions have been made exclusively over the 'Patita' Kissam land but not on water body i.e., the construction has been made in Khata No. 1622, Plot No. 1291/3567 having an area of Ac. 0.133 , Plot No. 1211/3565 having an area of Ac. 0.463 and Plot No. 1290/4271 having an area of Ac. 0.657, Kissam Patita for Paryatan and Sanskruti Bibhag (Tourism and Cultural Department), Government of Odisha, in pursuance to the order passed in Alienation Case No. 08/2007. It is stated that similar constructions have been made in Khata No. 1030/1754, Plot No. 1194/3929 having an area of 0.040 for Sri Sri Venketswar Baunsa Silpa Samabaya Samiti Ltd. Taraphe President (Sri Venkateshwar Bemboo Factory Co-operative Society Ltd. Marfat President) in pursuant to the order passed in Alienation Case No. 89/1999. It is stated that the classification of the 'Jalasaya' Kissam of the said plot was changed to 'Patita' Kissam on approval of the Collector, Ganjam, vide Alienation Misc. Case No. 10/1992. The land was initially issued by the Berhampur Development Authority for construction of an Auditorium and the same was resumed from the BeDA, Berhampur, for the purpose of alienation in favour of the Tourism and Culture Department.
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10. It is further stated that the Hanuman Mandir, Ganesh Mandir, Kalayan Mandap, have been constructed on the Plot No. 1291 having an area of Ac. 0.246 on land where there is no sign of water body and the kissam of the said plot has been changed to Patitia vide Alienation Misc. Case No. 10/1992.
11. The State Pollution Control Board, Odisha, Respondent No.3, has filed another affidavit dated 12.12.2022, stating therein that the previous Inspection Report may be ignored as some errors had crept in and a revised Inspection Report has been filed as Annexure-R3/2 to the affidavit which reads as under:-
"REVISED INSPECTION REPORT OF HANUMAN BANDHA AT
- WARD NO.29 IN BAIDYANATHPUR MOUZA UNDER BERHAMPUR TAHASIL IN THE DISTRICT OF GANJAM IN THE MATTER OF O.A. NO.132/2022/EZ - SIRIN TAMMANA & ORS. VRS. STATE OF ODISHA & ORS.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Inspection of common water body (Pond), situated at ward no. 36, Berhampur conducted on dtd.11.10.2022 in connection with O.A. No.132/2022/EZ- Sirin Tammana & Ors. Vrs. State of Odisha &Ors. and accordingly the inspection report was submitted before the Hon'ble Tribunal by the State Pollution Control Board, Odisha, Bhubaneswar in the affidavit dtd. 27.10.2022 as ANNEXURE-R3/1 Colly. Since a Hanuman Temple was located near the embankment of this water body and as informed by the local people during inspection, the water body i.e. pond was inadvertently mentioned as Hanuman Bandha in the inspection report.
Again on dtd. 22.11.2022 the alleged water body in the aforesaid OA was jointly inspected by the Tehsildar. Berhampur and Deputy Environmental Engineer, Regional Office, State Pollution Control Board, Berhampur to verify the present status. Revenue Inspector of the concerned circle was also present during inspection. During the joint inspection, it was learnt that the alleged Hanuman Bandha, Common water Body, as per 7 revenue record mentioned in O.A. No.132/2022/EZ- Sirin Tammana & Ors. Vrs. State of Odisha &Ors. is situated in ward No.29 and not in ward No. 36 (where inadvertently inspection was previously conducted on dtd. 11.10.2022 and report was also submitted to that effect) in Baidyanathpur Mouza under Berhampur Tahasil in the district of Ganjam though locally it was also called Hanuman Bandha.
LOCATIOINAL DETAIL:
The Hanuman Bandha situated in Ward No.29 and not in ward No.36 was a Water Body as per revenue record located at ward no. 29, over Plot Nos. 1290, 1291/1826, 1211, 1291 and 1194 under Khata No. 1619 of area Ac. 2.464 dec. in Baidyanathpur Mouza under Berhampur Tahasil in the district of Ganjam.
SURROUNDING DETAIL:
Surroundings of the Hanuman Bandha includes residential houses in East & South sides and BeMC Road exists in North and West sides.
FOLLOWING OBSERVATIONS ARE MADE DURING INSPECTION:
1. From the surroundings it was observed that the Hanuman Bandha has lost its characteristic and no water body is found in that alleged land schedule area. However as per land schedule of revenue record, it is mentioned as Jalasaya.
2. Neither wet land nor low lying area was also observed in its surroundings area.
3. The District Tourist Office, Ganjam, Berhampur and The Biju PattanaikSanskruti Bhawan Building have been constructed and functioning over the said land schedule area.
4. A Ganesh Temple has been constructed on the first floor and a Kalyamandap is also functioning in the ground floor at the South side of the above mentioned land schedule area.
5. Construction activities of a three storied building was under progress in the west side of the above mentioned land schedule area.
6. No direct discharge of waste water/sewage to the Hanuman Bandha was observed during inspection.8
CONCLUSION :
The Hanuman Bandha has lost its characteristics since long ago and neither direct nor indirect discharge of sewage/waste water has been found in the Hanuman Bandha as there is no water body at all which was observed during field inspection."
12. In the revised Inspection Report, it is stated that Hanuman Bandha is situated in Ward No. 29, Plot No. 1290, 1291/1826, 1211, 1291 and 1194 under Khata No. 1619 having an area of Ac. 2.464 decimal in Mouza-Baidyanathpur under Berhampur Tehsil of Ganjam District, Odisha.
13. The Inspection Report further mentions that a Ganesh Temple has been constructed on the first floor and a Kalyan Mandap is also functioning on the ground floor. It is categorically stated in the conclusion of the Report that Hanuman Bandha has lost its characteristics and there is no water body on the land at present.
14. The Respondent No.5, Collector & District Magistrate, Ganjam, has filed another additional affidavit dated 21.01.2023, stating that the classification of Jalasaya Kissam for the total area in Plot No. 1290, 1211, 1291 having an area of Ac. 0.138 out of the area of 0.250 in Plot No. 1191 in Khata No. 1619 of Mouza-Baidyanathpur, was changed to Kissam Patita on the approval of the Collector, Ganjam, vide Tahasil-Berhampur Alienation Misc. Case No. 10/1992 and transferred to Khata No. 1617 (Anabadi) under Mouza- Baidhyanathpur as Patita Kissam. Copy of the Record of Rights of Khata No. 1617 have also been filed as Annexure-13&14 to the affidavit.
15. It is also stated that the Hanuman Mandir, Ganesh Mandir, Kalayan Mandap, have been constructed on Plot Nos. 1290 & 1291 9 having an area of Ac. 0.367 and Ac. 0.246 respectively, which has already been converted to Kissam Patita and at present no water body exists over the land in question.
16. A rejoinder affidavit dated 09.02.2023 has been filed on behalf of the Applicants, reiterating the contents of their Original Application and it is stated that this Original Application has been filed on the basis of information received from the Tahasildar-Berhampur, District Ganjam, through an RTI application and the land Hanuman Bandha is clearly shown as 'Water Body'.
17. We have heard the learned Counsel for the parties and perused the documents on record.
18. The clear stand of the State Respondents is that the plots in question, namely, Plot Nos. 1290, 1291/1826, 1211, 1291, under Khata No. 1916 in Mouza-Baidyanathpur, Tehsil-Berhampur, District-Ganjam, has now been converted from 'Water Body/Jalasaya' to 'Patita' Kissam land vide Alienation Misc. Case No. 10/1992.
19. The Applicant has not questioned the alienation proceedings at the relevant point of time and this Original Application has been filed only on the basis of the Tahasil Records which have been provided to them under the RTI application.
20. No doubt, once the characteristics of the land had been changed in Alienation Misc. Case No. 10/1992 or Alienation Case No. 08/2007 or Alienation Case No. 89/1999, from Jalasaya to Kissam Patita, the Record of Rights ought to have been duly corrected by the concerned Tahasil Office. We regret to say that the Revenue Authorities have been lax and have completely failed to revise the Record of Rights in the light of the Alienation Misc. Cases noted 10 above, and stale unupdated documents have been provided to the Applicants by the Office of the Tahasildar-Berhampur, unnecessarily misleading the Applicants to file the present Original Application for protection of what was once upon a time a Water Body/Jalasaya known as 'Hanuman Bandha' but which over the period of several decades has lost its characteristics as such.
21. Mr. Biranchi Narayan Mahapatra, learned Counsel for the Applicant submitted that characteristics of the water body (Hanuman Bandha) to Patita Kissam could not have been changed by the authorities as the said act is in violation of the law laid down by the Hon'ble Supreme Court in (2001) 6 SCC 496 (Hinchlal Tiwari Vs. Kamala Devi & Ors.).
22. There can be no dispute with regard to the law laid down by the Hon'ble Supreme Court which needs to be strictly adhered to in letter and spirit by the State Governments but at the same time we may hasten to add that in the present case the Hanuman Bandha (Water Body) has lost its characteristics as a water body and has changed from 'Jalasaya' (Water Body) to 'Patita' Kissam as far back as 1992 in Alienation Misc. Case No. 10/1992 and several residential constructions have been made over the said land including the Hanuman Temple, Ganesh Tample and Kalayan Mandap.
23. The clock cannot be set back at this stage after the lapse of 31 years. No direction, at this stage, can be given to the State Respondents for removal of the constructions already made and for restoration of the said land as a water body. However, it is the need of the hour that water bodies need to be protected urgently from human and climatic depredation since water is the very source of 11 human and all life on earth. A water body not only helps to cool the air around its surroundings but also helps to recharge the ground water and regenerate flora and fauna in the area thereby greatly contributing to the general health and quality of human life.
24. Having said that, we issue the following directions:-
(a) The State Respondents are directed to take steps for correction of their Revenue Records to bring them at par with the current realities showing the correct status of the land as it exists today in light of the Alienation Misc. Cases where the conversion of land has taken place;
(b) The State Respondents are further directed that the area measuring Ac. 2.464 decimal being the total area of the erstwhile Hanuman Bandha be excavated and a new water body be created either in the vicinity of the erstwhile Hanuman Bandha water body or any other suitable area nearby, to be identified by the Collector, Ganjam. Such new water body shall be duly preserved by creating a walkway, planting of adequate quality and quantity of trees and shrubs maintaining biodiversity all around the periphery of the water body and shall also consider installation of adequate number of fountains in the water body for circulation of water to ensure its proper oxygenation and Biochemical Oxygen Demand (BOD) levels to be within the standards prescribed by the Central Pollution Control Board.
25. Such an issue had arisen before this Tribunal in Original Application No. 106/2021/EZ (Sisir Kumar Panda Vs. Union of India & Ors.) where also the challenge was laid to the construction of Maa Mangala Temple on an erstwhile water body, namely, Agula 12 Bandha, and the Tribunal while disposing of the said Original Application had directed the State Respondents to demarcate land of an equivalent size of Ac.11.500 as far as possible close to the Agula Bandha water body and if not possible, in some other area nearby and re-create a water body of the same size and depth as Agula Bandha. Paras 41, 42 and 43 of the judgment and order dated 03.08.2022 read as under:-
"41. According to the State Respondents an area of 6.860 acres is still maintained as common pond/common water body in Plot No. 1509, Khata No. 1375. According to the State Respondents, the area of the Jalasaya which has lost its characteristics as such is measuring about 11.500 acres of which 3.600 acres was de-reserved in Khata No. 1375, Plot No. 1509 vide Collector's order dated 27.031993 and vide another order dated 19.08.1999, area admeasuring 1 acre out of the 7.900 acres of Khata no. 1375, Plot No. 1509 has been de-reserved in exercise of powers conferred in Section 3A of the Orissa Government Land Settlement (Amendment and Validation) Act, 1975. This means that out of a total area of about 18.480 acres of Jalasaya, 11.500 acres of area has lost its characteristic as such and 6.860 acres is still maintained as a common pond/common water body at Agula Bandha. This area of 11.500 acres of land which has been allowed by the State Government to degrade and lose its character as 'Jalasaya' needs to be restored by the Government. Since Government buildings have been constructed on this area of land, we direct the State Respondents to demarcate land of an equivalent size of 11.500 acres including 0.012 acres of the land which will become available after demolition of Maa Mangala Temple, as far as possible close to the Agula Bandha water body and if not possible, in some other area nearby and re-create a water body of the same size and depth as Agula Bandha.
42. We may remind the State Respondents that this is not an impossible task considering that the Sukhna Lake in Chandigarh, having an area of 3 square kilometers with an overall depth of 8 feet (2.4 meters) maximum depth 16 feet (4.9 meters) was created as an artificial water body and, therefore, 13 what can be done by the Government of Punjab to create a water body for its citizens, can also be replicated by the State of Odisha in the District of Ganjam, Odisha over the remaining area of 11.500 acres including 0.012 acres of the land which will become available after demolition of Maa Mangala Temple.
43. There are also umpteen examples of artificial water bodies created by various State Governments to help in providing drinking water as well as water for agriculture for the rural poor. The above example of Sukhna Lake in Chandigarh is just an illustration."
26. The present Original Application is, therefore, disposed of in the light of the directions given hereinabove and also bearing in mind the directions given in Original Application No. 106/2021/EZ.
27. I.As. if any, are also disposed of accordingly.
28. There shall be no order as to costs.
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B. Amit Sthalekar, JM ......................................
Prof. A. Senthil Vel, EM March 01, 2023, Original Application No.132/2022/EZ AK 14