National Green Tribunal
Ankur Sharma vs The State Of West Bengal Service Through ... on 19 September, 2022
Item No.09 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No.15/2022/EZ
In the Matter of:
Ankur Sharma,
S/o Shri Ambooj Sharma,
Resident of 13/3, Dr. P. K. Banerjee Road,
P.O., P.S. & District -Howrah, West Bengal,
PIN - 711101,
..... Applicant(s)
Versus
1. The State of West Bengal
service through the Chief Secretary,
Government of West Bengal,
Having office at Nabanna (13th Floor),
325, Sarat Chatterjee Road,
Shibpur,
Howrah - 711102,
2. Ministry of Environment, Forest and Climate Change,
Government of India, through its Secretary,
Paryabaran Bhawan, Jorbagh Road, New Delhi,
Pin - 110003, ...(deleted vide order dt. 02.02.2022)
3. The Central Pollution Control Board,
through its Member Secretary,
having office at Parivesh Bhawan,
East Arjun Nagar,
Delhi - 110032
4. Department of Environment, Govt. of West Bengal,
Through its Principal Secretary,
Pranisampad Bhawan, Block (5th Floor), LB-II.
Salt Lake, Sector-III, Bidhannagar,
Kolkata - 700106, ...(deleted vide order dt. 02.02.2022)
5. The Additional Chief Secretary,
Department of Environment,
Government of West Bengal,
having Office at Pranisampad Bhawan,
Block (5th Floor), LB-II,
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Salt Lake, Sector-III,
Bidhannagar,
Kolkata - 700106,
6. West Bengal Pollution Control Board,
through its Member Secretary,
having office at Paribesh Bhavan,
10A, Block - L.A.,
Sector - III, Salt Lake City,
Kolkata - 700106,
7. The Lane and Land Reforms and Refugee, Relief and Rehabilitation
Department, Government of West Bengal,
through its Principal Secretary,
having office at Nabanna,
6th Floor, 325, Sarat Chatterjee Road,
Howrah - 711102,
8. The Principal Secretary,
Department of Fisheries, Government of West Bengal,
having office at Benfish Tower (7th& 8th Floor),
31-GN Block, Sector-V, Salt Lake,
Kolkata - 700091,
9. The District Magistrate,
Howrah District,
having office at 6, Rishi Bankim Chandra Road,
Howrah - 711101,
10. The District Land and Land Reforms Officer, Howrah,
having office at 6, Rishi Bankim Chandra Road,
Howrah - 711101
11. Howrah Municipal Corporation,
through its Commissioner,
having office at 4, M.G. Road,
Howrah - 711101,
12. The Commissioner,
Howrah Municipal Corporation,
4, M.G. Road, Howrah,
Pin - 711101, ...(deleted vide order dt. 02.02.2022)
13. The Assistant Engineer,
Building Department,
Howrah Municipal Corporation,
having office at 4, M.G. Road,
Howrah - 711101,
14. Shri Surit Kumar Mukhopadhyay,
S/o Late Kartik Chandra Mukhopadhyay,
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Assistant Engineer, Building Department,
Howrah Municipal Corporation (erstwhile Assistant Engineer in-Charge
Survey Department),
4, M.G. Road, Howrah,
Pin - 711101, ...(deleted vide order dt. 02.02.2022)
15. Commissioner of Police,
Howrah City Police,
28, Nityadhan Mukherjee Road,
Howrah - 711101, ...(deleted vide order dt. 02.02.2022)
16. The Deputy Commissioner of Police (Central Division),
Howrah City Police,
31, Jagat Banerjee Ghat Road, Shibpur,
Howrah - 711102, ...(deleted vide order dt. 02.02.2022)
17. The Inspector-in-Charge,
Shibpur Police Station,
161, G.T. Road (South), Howrah,
Pin - 711102, ...(deleted vide order dt. 02.02.2022)
18. Howrah Mills Company Limited,
A company registered under the Companies Act, 1956,
Represented by one of its Directors namely Mr. Sanjay Mall,
having office at "Howrah House",
135, Foreshore Road,
Howrah, West Bengal - 711102,
19. Vedansh Traders Private Limited,
Registered under the Companies Act, 1956,
Represented by one of its Directors namely Mr. Ajay Mall,
having office at "Howrah House",
135, Foreshore Road,
Howrah, West Bengal - 711102,
20. Usha Projects Private Limited,
Registered under the Companies Act, 1956,
Represented by one of its Director namely Mr. Vijay Gupta,
having office at 9/1, Syed Amir Ali Avenue,
2nd Floor, Kolkata - 700017,
..... Respondent(s)
Date of hearing: 19.09.2022
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Mr. Ankur Sharma, in person,
For Respondent(s) : Mr. Sibojyoti Chakraborty, Advocate for State of W.B.,
Mr. Dipanjan Ghosh, Advocate for R-3,
Mr. Prithwish Basu, Advocate for R-6,
Mr. Sandipan Banerjee, Advocate (in Virtual Mode) a/w
Ms. Amrita Pandey, Advocate for R-11,
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Mr. Abhrajit Mitra, Sr. Advocate, (in Virtual Mode) a/w
Ms. Paushali Banerjee, Adv. & Ms. Sruti Swaika, Advocate
for R-18, 19 & 20,
ORDER
1. Mr. Ankur Sharma, the Applicant in person, is present.
2. Affidavit dated 16.09.2022 has been filed on behalf of the Respondent No.9, District Magistrate, Howrah; the same is taken on record.
3. Heard the learned Counsel for the parties and perused the documents on record.
4. This Original Application has been filed by the Applicant on the allegation that the Respondent No.11, Howrah Municipal Corporation, is filling up a huge water body at the nose tip of Shibpur Police Station, measuring about 45 Cottahs in L.R. Dag No. 237, Mouza-Shibpur, Sheet No. 66, J.L. No. 66, P.S. Shibpur, Howrah, within the Howrah Municipal Corporation Premises No. 17, P.M. Bustee, 4th Bye Lane, Ward No. 31, P.S.-Shibpur, Howrah, and 160, G.T. Road (South), P.S.-Shibpur, Howrah.
5. In respect of L.R. Dag No. 237, Mouza-Shibpur, Sheet No. 66, J.L. No. 66, P.S. Shibpur, Howrah, relevant document has been filed as Annexure P-1 (at page no. 29 of the paper book), which shows the land to have been recorded as 'Pukur' in the land records measuring an area of 0.6835 acres. Photographic evidence has also been filed as Annexure P-4 (at page nos. 58 to 60 of the paper book).
6. Considering the allegations made in the Original Application, the Tribunal at the stage of admission also directed that there shall be a restraint on any construction activity or change in the nature of 4 land in question i.e., i.e., L.R. Dag No. 237, Mouza-Shibpur, Sheet No. 66, J.L. No. 66, P.S. Shibpur, Howrah, until further orders.
7. Notices were issued to the Respondents, in response to which counter-affidavits have been filed them.
8. The Additional District Magistrate & District Land & Land Reforms Officer, Howrah, has filed his affidavit dated 11.05.2022 wherein it is stated that the classification of the Plot No. 237 (LR) corresponding to Plot No. 223 (RS) of Shibpur Sheet No. 66 for Holding No.17, P.M. Busstee 4th Bye Lane is 'Pukur'. It is also stated that 'there is a water body in the plot and was filled with soil/earth'.
9. In the affidavit, it is further stated that the recorded classification of Holding No. 17 P.M. Bustee 4th Bye Lane (LR Plot No. 237 corresponding to R.S. Plot No. 223 of Mouza-Shibpur, Sheet No.
66), is a water body and appears to have been filled up with soil and earth.
10. The Howrah Municipal Corporation, Respondent No.11, has filed its affidavit dated 14.07.2022 wherein it is stated that R.S. Dag No. 314, Khaitan No. 250 of Holding No. 17, P.M. Bustee, 4th Bye Lane, Ward No. 31, Howrah, Mouza-Shibpur, was solid land and was gifted to the Howrah Municipal Corporation by its erstwhile owner and at that time there was no water body existing on this land.
11. The West Bengal Pollution Control Board, Respondent No.6, has also filed its affidavit dated 11.08.2022 bringing on record an Inspection Report of an inspection carried out on 03.03.2022 wherein the following observations and other relevant information as well as remarks/recommendations have been given which are extracted herein below:-
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"Observation:
i. The said premises are situated just adjacent to Shibpur P.S. One sign board/post on the gate of the premises 160 G.T. Road (South0 bearing the name & address of developer M/s Usha Projects private limited was observed.
ii. Both the premises are surrounded by a single boundary wall, there is no physical boundary between the two sites. Mostly G+4 buildings were observed all around the boundary wall, on three sides. While entering from G.T Road side, the premise 160 G.T Road (South), is situated on the front side & the premises
17.P.M. Bustee 4th Bye Lane, P.S. Shibpur is situated at the back side.
iii. During inspection, no construction activity was observed inside both the premises nos.(1) & (2). The area is mostly open land with few shrubs and tall grass cover in certain patches and some low-lying area. No construction material like sand, brick, stone chips etc., or earth moving machinery was seen in the premises.
iv. During inspection no water body was observed in both locations, however, some areas of the site 17.P.M Bustee 4th Bye lane were low-lying and inaccessible due to presence of shrubs. v. A few G+9 storied buildings were observed on the opposite side of the premises on 160 G.T. Road (South), P.O. & P.S. Shibpur, Howrah. The area is predominantly residential in nature. vi. Few trees were observed in both the project areas including one old banyan tree and few palm and banana trees. vii. Municipal solid wastes were found dumped at some packets near the boundary wall. It seems they have been thrown away from adjoining buildings situated near the boundary wall of both the premises.
viii. There is another access to the site 17, P.M Bustee 4th Bye lane, from main G.T. Road via small lane as shown by HMC representative. The aid approach road has been encroached by residential buildings.
6 ix. An approach road has been constructed within the plot 160 G.T. Road (South) leading to the site at 17 P.M. Bustee 4th Bye lane. x. Pictures taken during the inspection are attached herewith for reference.
Other relevant information:
i. It was learnt from representative of HMC during inspection as well as from the documents enclosed in email dated 16/02/2022 of applicant Shri Ankur Sharma, that the parcel of land situated at 17.P.M. Bustee 4th Be land, and part of land at 160 G.T. Road has been transferred to HMC by a Deed of Gift dated 25.09.2021.
ii. As per land documents enclosed by applicant of O.A. No.15/2022/Ez in the email dated 16.02.2022, Dag No.237 is reported as 'Pakur' however, no physical existence of any water body in the said area was observed. Some portions of the said plot seem to be low land with shrubs.
iii. Representative of HMC stated that they have already submitted intimation and request to ADM & DLLRO on 01.12.2021 for change of description of land from 'Pakur' to playground mostly for Holding No.17, P.M. Bustee 4th Bye Lane, and partly for 160 G.T. Road, HMC, P.O. & P.S. Shibpur. Copy of letter provided during inspection is enclosed.
iv. HMC representative also stated during inspection that the said land at Holding No.17, P.M Bustee 4th Bye lane, will be developed and used as a playground.
v. Architect of M/s. Usha Projects Private Limited stated that they have already applied for EC to Competent Authority for development of a Building Project comprising of 2 Towers (B+G+15 & G+18) at 160 G.T Road (South) since the Total Built- up area of the project is about 29.429 sq m. Remarks/recommendation:
• Project proponents should obtain relevant prior permissions like EC from competent authority. NOC & CFO from WBPCB as applicable. As reported during this inspection, application for EC 7 has been already submitted to Competent Authority for proposed Building Project at 160 G.T. Road (South).
• Necessary permission may be obtained for any construction or other classified industrial activity as per the provisions of the Order of WBPCB in respect of categorization of industries issued vide Memo No.: 1512/4A-18/2010 (Pt.I) dated 14/06/2016.
• Necessary permission should be taken from Forest Department for any tree cutting activity & compensatory afforestation should be carried out and directions stipulated in the Environmental Clearance should be abided by strictly.
• Sanctioned building plan & other statutory licences (like permission from SWID for ground water extraction etc.) should be obtained from relevant authorities and documents to be kept and maintained at site.
• During Construction Phase of the Project, the C&D Waste Rules 2016, as amended and Guidelines of Department of Environment dated 10.12.2009 should be followed strictly. Construction activity should be done in a manner so that there is no adverse ecological impact on flora, fauna, wetlands (if any), open fields etc. • For land related matter, appropriate Department (L&LR) may be requested to see whether any water body filling has occurred or if any water body was pre-existing in the area under question.
Unit should carry out only legal & authorised construction/project in land duly handed over / characterised appropriately by concerned Land Department." • Pictures taken during the inspection are attached herewith for reference."
12. Another Inspection Report has been filed with the same affidavit which is of an inspection carried out on 05.08.2022. The Observations and Conclusion of the Report read as under:-
"Observation:
• During inspection, no activity regarding filling up of waterbody, as alleged, was observed. The entire land is densely covered 8 with shrubs / vegetation along with some trees rendering the area to be inaccessible. No pathway through the dense vegetation could not be found. However, the inspecting team traversed the entire project site, the land parcel having Holding No. 160, G. T. Road and 17, P.M. Bustee, 4th By Lane. The land was observed to be an undulated terrain. Water logging in few pockets were observed. Considering the dense vegetation and the size of shrubs observed in the water-logged areas / pockets, it did not appear that the land recorded as 'pukur' has been filled up recently.
• During inspection, no construction activity was observed in the site.
Conclusion:
• As per land documents of Land & Land Reforms Dept, Govt. of West Bengal, Dag No.237 is classified as 'Pukur'. However, no physical existence of water body was observed. The nature of the plot seems to be an undulated terrain and therefore, water logging in few pockets were observed. Also, no activity regarding filling up of water body was observed during inspection.
• Holding No. 160, G. T. Road, pertaining to LR Plot No. 333 corresponding to RS Plot No. 314 of Mouza - Shibpur, Sheet No. 66, has been converted from 'Khelarmath' to 'Commercial Bastu'.
• Representative of Howrah Municipal Corporation stated that they have already submitted an intimation request to Additional District Magistrate and District Land & Land Reforms Officer for change of character of land which is recorded as 'Pukur' to 'Play Ground' vide letter No. 254/Survey/Commr./21-22 dated 01.12.2021 (Annexure-5).
• M/s. Usha Projects Pvt. Ltd. have applied for Environmental Clearance for construction of a Residential cum Commercial Complex having configuration of B+G+XV storied and G+XVIII storied towers, which is under process."
13. The Inspection Report further mentions that the Howrah Municipal Corporation (Respondent No.11 herein), has already submitted an 9 application to the Additional District Magistrate & District Land and Land Reforms Officer, Howrah, for change of character of land which is recorded as 'Pukur' to 'Play Ground' vide their application dated 01.12.2021.
14. Mr. Abhrajit Mitra, learned Senior Counsel appearing for Respondent Nos. 18 to 20 (Private Respondents), submits that the said application is still pending with the State Authorities and if the change in the use of land has occurred in natural course of nature prior to 24.03.1986, such change in the Record of Rights ('RoR' for short) is permissible. Reliance has been placed on paragraph 166 (i) & (ii) of the West Bengal Land and Land Reforms Manual which read as under:-
"166 (i) 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 latter case, it should also be ascertained whether the change took place before 24.3.86 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 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 on the merit of the case if post-facto permission should be granted. [in this connection the expression 10 '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 24.3.86, the land may be vested under Section 4(4)(a) or penal action may be taken under Section 4D unless prosecution under Section 4D is barred by limitation under the Code of Criminal Procedure."
15. The District Magistrate, Howrah, Respondent No.9, has also filed affidavit dated 16.09.2022, bringing on record the proceedings drawn in compliance of the order of the Tribunal dated 12.08.2022 whereby this Tribunal had directed the District Magistrate, Howrah, to take a decision on the application dated 01.12.2021 of the Private Respondents pending before the Additional District Magistrate & District Land & Land Reforms Officer, Howrah. The extract of the proceedings before the Additional District Magistrate & District Land & Land Reforms Officer, Howrah, is reproduced herein below:-
Serial Order and signature of the Officer Note of number action and date of taken order on Order 1
------- Whereas the Hon'ble NGT passed an order in 12.09.2022 O.A. No. 15/2022/EZ on 12.08.2022 with a direction upon the District Magistrate, Howrah, to take a decision on the application dated 01.12.2021 pending before A.D.M. & D.L. & L.R.O., Howrah, expeditiously preferably within one month from the date of the order in accordance with law having regard to the provisions of paragraph 166 (i)(ii) of the W.B.. & .R Manual, this proceeding is initiated to dispose of the petition filed by the Commissioner, HMCA dated - 01.12.2021 in pursuance with the order of the District Magistrate, Howrah.11
That as per the observations passed by the Hon'ble NGT on the basis of the affidavit filed by the West Bengal Pollution Control Board on 11.08.2022, two inspection reports dated 03.03.2022 and 05.08.2022 has been filed. That after perusing both the reports, the following are observed and taken into account:-
1. That during inspection held on 03.03.2022, no construction activity was observed inside both the premises i.e., 160, G.T. Road & 17, P.M. Bustee Lane.
The area is mostly open land with few shrubs and tall grass cover in certain patches and some low-lying area.
2. During inspection held on 03.03.2022, no water body was observed in both locations, however, some areas of the site 17, P.M. Bustee 4th Bye lane were low-
lying and inaccessible due to the presence of shrubs.
3. During inspection held on 05.08.2022, no activity regarding filling up of water body, as alleged, was observed. The entire land is densely covered with shrubs/vegetation along with some trees rendering the area to be inaccessible. No pathway through the dense vegetation could be found. However, the inspection team traversed the entire project site, the land parcel having holding no. 160, G.T. Road and 17, P.M. Bustee, 4th Bye Lane.
The land was observed to be an undulated terrain. Water logging in few pockets was observed. Considering the dense vegetation and the size of shrubs observed in the water logged areas/pockets, it did not appear that the land recorded as 'Pukur' has been filled up recently.
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4. As per land documents, dag no. 237 is reported as 'pukur' however, no physical existence of any water body in the said area was observed. Some portions of the said plot seem to be low land with shrubs. The nature of the plot seems to be an undulated terrain and, therefore, water logging in few pockets was observed. Also, no activity regarding filling up of water body was observed during inspection.
That when the H.M.C. received the land, there was no water body.
That from the application filed by the H.M.C. it is learnt that the land has been handed over to P.M. Bustee Sports Development Trust to develop it into a playground.
That Rule 166 (ii) West Bengal Land & Land Reforms Manual provides that if the change in the use of land occurred due to the development activities of the Government or of a local body, the said record should be corrected accordingly in due course. If the said change occurred due to a reasonable cause, the Collector may consider on the merit of the case if post facto permission should be granted.
That after perusing all the documents and considering the observations by the WBPCB & HMC, it is decided that the land use pattern of the suit plot being L.R. No. 237 of Mouza-
Shibpur, Sheet No. 66 changed long ago and since the change in Classification in the R.O.R. is sought by the local body for development purpose and for the benefit of the common mass, the application filed by the Commissioner, H.M.C. dated 01.12.2021 is fit for consideration under Rule 166(ii). Order is hereby passed to change the Classification of the suit plot to 13 Khelar Math from the existing Classification of 'Pukur' in the R.O.R. Thus, the order passed by the Hon'ble NGT in OA 15/2022/EZ is complied with.
A.D.M. & .D.L.&L.R.O., Howrah, & Collector u/s 4C of W.B.L.R. Act, 1955
16. A perusal of these proceedings would show that at the time of inspection conducted on 03.03.2022, no water body was witnessed on both the locations, however, it was observed that some areas being low-lying there was water-logging in a few pockets. It is not disputed that the land in question is recorded as 'Pukur' but there is no physical existence of any water body and no human activity has been found from anybody trying to fill-up the water body/land in question.
17. The Additional District Magistrate & District Land & Land Reforms Officer, Howrah, has further observed that Rule 166 (ii) of the West Bengal Land and Land Reforms Manual, provides that if the change in the use of land has occurred due to development activities of the Government or local body, the said record should be corrected accordingly in due course, and if the said change has occurred due to a reasonable cause, the Collector may consider on the merit of the case, if post-facto permission for change of user should be granted.
18. The document dated 13.09.2022 (page no. 491 of the paper book), filed along with the affidavit, is a letter of the Additional District Magistrate & District Land & Land Reforms Officer, Howrah, addressed to the Officer-in-Charge, Town Survey Unit, Howrah, 14 which mentions that the nature of the plot in question has changed before 24.03.1986 and in this view of the matter it has been decided that land use pattern of the suit plot i.e., Plot No. 237, Mouza-Shibpur, Sheet No. 66, having changed long ago and since the change in classification in the RoR is sought by the local body for development purpose and for the benefit of the common masses the application filed by the Commissioner, Howrah Municipal Corporation, dated 01.12.2021 is, therefore, fit for consideration for change of land use under Rule 166(ii) of the West Bengal Land and Land Reforms Manual. In this view of the matter, order has been passed by the Additional District Magistrate & District Land & Land Reforms Officer, Howrah on 05.09.2022 allowing the change of classification of the land from 'Pukur' to 'Khelar Math', i.e., Playground.
19. From the documents on record and the proceedings before the Additional District Magistrate & District Land & Land Reforms Officer, Howrah, it transpires that the land in question is recorded as 'Pukur' in the land records but there is no water body exiting on it as of today and it has been filled-up with soil and earth, as a natural consequence, over a period of time without any human intervention and that status has existed as such since prior to 24.03.1986 and considering all these facts the Additional District Magistrate & District Land & Land Reforms Officer, Howrah, in exercise of powers conferred under Rule 166(ii) of the West Bengal Land and Land Reforms Manual, has granted permission for change of classification of the land in question from 'Pukur' to 'Khelar Math'.
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20. Considering these facts, we find that nothing further remains for adjudication in the present Original Application since the land in question had lost its character as 'Pukur' more than 30 years ago.
21. The Original Application is accordingly dismissed. Interim order, if any, stands vacated.
22. There shall be no order as to costs.
..................................... B. Amit Sthalekar, JM ................................... Saibal Dasgupta, EM September 19, 2022, Original Application No.15/2022/EZ AK 16