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2022 Supreme(Online)(NGT) 2001
Item No.07 Court No.1 BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA (THROUGH PHYSICAL HEARING WITH HYBRID MODE)
Original Application No.114/2022/EZ In the matter of:
1. Sirin Tammana W/o: Rashmin Kumar Panda, Aged about 35 years, Advocate by Profession, Resident of Panigrahy Nagar, Po: Panigrahy Pentho, First Gate, Digapahandi Road, P/S: Badabazar, Berhampur – 760006, Dist: Ganjam, Odisha
2. Madhusmita Jadab D/o: Late Kailash Chandra Jadab, Aged about 35 years, Advocate by Profession, Resident of Babajitota Street, Po: 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, Po: Berhampur, P/S: Badaiyanathpur, Berhampur – 760008, Dist: Ganjam, Odisha
4. Natabara Sahu S/o: Late Gurunath Sahu, Aged about 61 years, Vill/Po: Indrakhi, P/S: Golonthara, Pin – 761008, Dist: Ganjam, Odisha …. Applicant(s)
Versus
1. State of Odisha Represented by it’s Chief Secretary to Govt. of Odisha, State Secretariat, 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/Po : Berhampur, Pin – 760004, District: Ganjam, Odisha
5. Collector-cum-District Magistrate, Ganjam Collectorate, At/Po : Chatrapur, Pin – 761020, Dist. : Ganjam, Odisha …. Respondent(s)
Date of hearing: 22.03.2023 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. Papiya Banerjee Bihani, Adv. for R-3 (in Virtual Mode), Mr. Anand Prakash Das, ASC for R-4 & 5 (in Virtual Mode)
For the Petitioner: BIRANCHI NARAYAN MAH
For the Respondent:
ORDER
1. This Original Application has been filed by the Applicant alleging that the Baula Bandha water body and its embankment relating to the Plot No.100 (Ac. 1.341 Decimal), 100/132 (Ac. 0.020 Decimal), 101 (Ac. 3.426 Decimal), 101/166 (Ac. 0.180 Decimal), 102 (Ac. 0.842 Decimal) which is recorded as Jalasaya-ii and its embankment measuring area AC. 3.001 Decimal out of total area measuring Ac. 5.809 Decimal of Khata No.27 at Kalapuri Mouza (Panda Colony, near Engineering School) under Berhampur Tahasil of Ganjam District of Odisha, has been illegally encroached by various persons and constructions have been made thereon, thereby destroying a considerable part of the waterbody.
2. The learned Counsel for the Applicant submits that encroachment of waterbody has been seriously viewed by the Hon’ble Supreme Court of India. In (2001) 6 SCC 496 Hinch Lal Tiwari Vs. Kamala Devi & Others the State has been directed to ensure that no waterbody is allowed to be encroached and if there are encroachments over the waterbody, the same have to be removed.
The relevant extract of the judgment reads as under:-
“It is important to notice that the material resources of the community like forests, tanks, ponds, hillock, mountain etc. are nature’s bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality life which is the essence of the guaranteed right under Article 21 of the Constitution. The Government, including the Revenue Authorities i.e. Respondents 11 to 13, having noticed that a pond is failing in disuse, should have bestowed their attention to develop the same which would, on one hand, have prevented ecological disaster and on the other provided better environment for the benefit of the public at large. Such vigil is the best protection against knavish attempts to seek allotment in non-abadi sites. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-2-1999 confirmed by the Commissioner on 12-3-1999. Consequently, Respondents 1 to 10 shall vacate the land, which was allotted to them, within six months from today. They will, however, be permitted to take away the material of the houses which they have constructed on the said land. If Respondents 1 to 10 do not vacate the land within the said period the official respondents i.e. Respondents 11 to 13 shall demolish the construction and get possession of the said land in accordance with law. The State including Respondents 11 to 13 shall restore the pond, develop and maintain the same as a recreational spot which will undoubtedly be in the interest of the villagers. Further it will also help in maintaining ecological balance and protecting the environment in regard to which this Court has repeatedly expressed its concern. Such measures must begin at the grass-root level if they were to become the nation’s pride.”
3. In (2018) 13 SCC 390, National Institute of Medical Science University Rajasthan & Anr. Vs. State of Rajasthan & Ors., the Hon’ble Supreme Court has affirmed the view taken by the Court in Jagpal Singh (supra). Paragraphs 40, 41 and 42 of the judgment read as under:-
“40. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors.1 this Court directed enforcement of the rule of law by demolition of unauthorized constructions. It was held as follows:
“The High Court has directed dismantling of the whole project and for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorized. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial
discretion in moulding the relief. Such discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorized construction, if
