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2022 Supreme(Online)(NGT) 1690
Item No. 09 Court No.1 BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA (Through Video Conferencing)
Original Application 60/2022/EZ In the Matter of:
1. Natabara Sahu S/o Late Gurunath Sahu, Vill/Po: Indrakhi, PS : Golonthara-761008, District: Ganjam, Odisha
2. Sirin Tammana W/o Rashmin Kumar Panda, Resident of Panigrahy Nagar, PO: Panigrahy Pentho, First Gate, Digapahandi Road, P.S: Badabazar, Berhampur – 760006, District: Ganjam, Odisha
3. Madhusmita Jadav D/o Late Kailash Chandra Jadav, Resident of Babajitota Street, P.O : Berhampur, P.S. : Baidyanathpur, Berhampur – 760001, District: Ganjam, Odisha
4. Kishore Chandra Behera S/o Late Parsuram Behera, Resident of Lanjipalli Main Road, P.O. : Berhampur, PS : Baidyanathpur, Berhampur – 760008, District: Ganjam, Odisha
5. Lokesh Patro S/o Late Khetra Mohan Patro, Resident of Chandraprabha Street, House No.: 136, P.O. : Berhampur, PS : Baidyanathpur, Berhampur – 760001, District: Ganjam, Odisha
6. Sangram Keshari Mohanty S/o Dandapani Mohanty, At P.O. : Santi Nagar, Goilundi Road, Berhampur – 760004, P.S. : Baidyanathpur, District: Ganjam, Odisha
7. P. Mohan Patro S/o Late Rammurty Patro, At Maitri Vihar (Gandhi Nagar), Assam Colony, At/PO/District/P.S. : Nabarangpur, Pin – 764059, State: Odisha ….. Applicant(s)
Versus
1. Union of India Represented by its Secretary, Ministry of Environment, Forest and Climate Change (MoEF&CC), Indira Paryavaran Bhavan, Jorbagh Road, New Delhi - 110003
2. Chief Secretary to Govt. of Odisha State Secretariat, Bhubaneswar, Pin : 751001, Odisha
3. Principal Secretary to Government, Water Resource Department, Odisha State Secretariat, Bhubaneswar - 751001, Odisha
4. Member Secretary, Central Pollution Control Board, Parivesh Bhawan, East Arjun Nagar, New Delhi - 110032
5. Member Secretary Odisha State Pollution Control Board, Paribesh Bhawan, A/118, Nilakantha Nagar, Unit – 8, Bhubaneswar – 751012, Odisha
6. Commissioner-Cum-Secretary to Government, Revenue and Disaster Management Department, Government of Odisha, State Secretariat, Bhubaneswar – 751001, Odisha
7. Commissioner-Cum-Secretary to Government, Urban Development and Housing, Government of Odisha, State Secretariat, Bhubaneswar – 751001, Odisha
8. Revenue Divisional Commissioner Southern Division, At/Po: Berhampur – 760004, District : Ganjam, Odisha
9. Deputy Director General of Forests (C), Regional Office, Eastern Zone (EZ), Ministry of Environment, Forest and Climate Change (MoEF&CC), A/3, Chandrasekharpur, Bhubaneswar – 751023
10. Regional Director Regional Directorate, Central Pollution Control Board, Ministry of Environment, Forest and Climate Change (MoEF&CC), Southend Conclave Block-502, 5th & 6th Floor, 1582, Razidanga Main Road, Kolkata – 700107, West Bengal
11. Secretary, Berhampur Development Authority (BeDA), Courtpetta Square, Berhampur – 760004, District : Ganjam, Odisha
12. Tahasildar, At/Po : Berhampur, Pin – 760004, District : Ganjam, Odisha
13. Commissioner, Berhampur Municipal Corporation, At/Po : Berhampur, Pin – 760002, District : Ganjam, Odisha
14. Collector-Cum-District Magistrate, Ganjam Collectorate, At/Po : Chatrapur, Pin – 761020, District : Ganjam, Odisha
15. Sub-Collector, At/Po : Berhampur – 760004, District : Ganjam, Odisha
16. Pradeep Kumar Bhuyan (Super Class Contractor) and Managing Partner of B. C. Bhuyan Construction Private Limited, S/o : Late Bhaskar Chandra Bhuyan, Plot No.: 890, Palasuni, Rasulgarh, Bhubaneswar - 751010, Dist : Khurda, State : Odisha ….. Respondent(s)
Date of hearing: 03.11.2022 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, Advocate (in Virtual Mode)
For Respondent(s) : Mr. Tarun Patnaik, ASC for State (in Virtual Mode), Ms. Papiya Banerjee Bihani, Advocate for R-5 (in Virtual Mode), Mr. Rajib Ray, Advocate for R-10, Mr. Bhawani Sankar Panigrahi, Advocate for R-11 (in Virtual Mode), Mr. Siva Sankar Chaini, Advocate for R-13 (in Virtual Mode)
For the Petitioner: BIRANCHI NARAYAN MAH
For the Respondent:
ORDER
1. Heard Counsel for the parties.
2. Affidavit dated 14.08.2022 has been filed on behalf of the Respondent No.14, Collector-cum-District Magistrate, Ganjam Collectorate; the same is taken on record.
3. This original application has been filed by the Applicant alleging therein that the Respondent No.11, Berhampur Development Authority has constructed Ganjam Hatta/Commercial Complex/Market Complex on a water body namely Santra Bandha on Plot No.1096 measuring area Ac. 5.000. It is stated that the project cost is about Rs.25.66 Crores. It is also stated that Plot No.1096 is recorded in the revenue record as ‘Jalasaya’ which is a water body. It is further stated that by constructing the Commercial Complex, Respondent No.11 has caused destruction and degradation of the water body and acted in violation of the directions given by the Hon’ble Supreme Court in Appeal (Civil) No.4787/2001, Hinch Lal Tiwari vs. Kamla Devi & Ors. The submission is that in that case Hon’ble Supreme Court had directed the authorities to restore the water body and protect it from encroachments.
4. Learned Counsel for the Applicant further submits that in this case the Respondent No.11 itself has encroached into the Plot No.1096 which is Jalasaya and made construction of Ganjam Hatta.
5. Considering the allegations made, notices were issued to the Respondents to file their responses.
6. In view of the allegations made, the Tribunal also directed that there shall be a stay on further construction of Ganjam Hatta on Plot No.1096.
7. A counter affidavit dated 12.07.2022 has been filed by the Respondent No.10, Central Pollution Control Board denying the allegations in the Original Application, but at the same time submitting that since the allegations have been made against the State respondent concerning the encroachment and illegal construction over the alleged water bodies, no response is required from the Central Pollution Control Board.
8. Odisha State Pollution Control Board, along with its affidavit dated 12.07.2022, has filed an Inspection Report of an inspection carried out on 07.07.2022. The Observations and the Conclusions of the Inspection Report read as under :-
“Following observations are made during inspection :–
1. From the surroundings it was observed that Santra Bandha has lost its characteristic as no water body found in that area. However, in connection revenue record it was a Jalasaya.
2. Neither wet land nor low lying areas were observed in its surroundings area.
3. Temporary boundary wall has been constructed in the surrounding area of Santra Bandha.
4. Three storey Building has been constructed in the north side of Santra Bandha area.
5. It was apprehended from the surroundings the existing area was a temporary dump yard for solid waste generated from ward No. 16 and its adjacent wards of Brahampur Municipal Corporation.
6. Solid wastes including plastic debris are found on the upper surface of Santra Bandha which has lost its characteristic.
7. No direct discharge of waste water/sewage to the Santra Bandha was observed during inspection.
8. As informed by the locality the Santra Bandha has lost its characteristic since long ago and earlier it was used as temporary storage yard for solid wastes.
CONCLUSION :-
The Santra Bandha has lost its characteristic since long ago and no direct discharge of sewage/waste water to the Santra Bandha was observed during inspection.”
9. The Berhampur Development Authority (BeDA) has also filed an affidavit dated 13.07.2022 alleging that the Applicant has deliberately concealed material facts from the Tribunal and obtained an interim order on misleading facts. It is stated that the pond-in-question i.e. Santara Pond, which existed on the outskirts of Berhampur Municipal Area, was a water body utilized by the Irrigation Department, Government of Odisha for channeling the water of the Rushikulya River to the said water body known as Santara Bandha, from where the water was again channelized to the paddy fields for purpose
