Disposed

Ashish Rohildas Shinde v. Lonavala Municipal Council

NGT16 Dec 2020Original Application No. 194/2018

Case brief

AI extract

What is this about?

This application sought directions for demolishing illegal construction near the Indrayani River. The court directed the appointed Joint Committee to execute the remedial measures outlined in its report regarding the encroachment.

What did the court decide?

Direction to the Joint Committee to take remedial action for removing dumping and encroachment as per their report.

Ashish Rohildas Shinde vs Lonavala Municipal Council — Environment and Pollution | NGT (2020)

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Court No. 1

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Item No. 02

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

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Original Application No. 194/2018 (M.A. No. 764/2018, M.A. No. 1623/2018, (Earlier O. A. No. 17 of 2018(WZ) With Execution Application No. 40 & 41/2019

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Ashish Rohidas Shinde & Anr.

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Applicant(s)

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Versus

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Lonavala Municipal Council & Ors. Respondent(s)

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Date of hearing: 16.12.2020

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CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON’BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER HON’BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER HON’BLE DR. NAGIN NANDA, EXPERT MEMBER

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Applicant(s): Mr. Sangramsingh R Bhonsle, Advocate

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Respondent(s): Mr. Ajay Gadegaonkar Advocate for Lonavala Municipal Council Mr. Mukesh Verma Advocate for MPCB Mr. Saurabh Kulkarni Advocate for R-5

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ORDER

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This Application seeks direction to demolish illegal construction at Survey No. 24, Village Bhushi, Taluka Maval , District Pune, to restore the land by removing earth filing and to prevent construction in ‘No Development Zone’, along river Indrayani.

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The application was filed on 30.01.2018 and has been dealt with by several orders in the last three years. Reference may only be made to some of the significant orders after pleadings were completed.

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Vide order dated 27.02.2019, it was noted that the Municipal Corporation has itself found the constructions to be illegal which needed to be identified remedial action taken. The Tribunal constituted a joint Committee comprising Maharashtra Pollution Control Board, Irrigation Department, Executive Engineer, Municipal Council of Lonavala, Tehsildar Maval. Municipal Council of Lonavala was to be the Nodal Agency. The Committee was to survey and demarcate the area in dispute confined to survey number 24, village Bhushi, Taluka Maval, District Pune. The Committee was to further ascertain whether the dumping of soil and debris had been done in areas in excess of legitimate holding of Respondent no. 5 within the prohibited area, having regard to the regulatory lines defining such zones, published by the Irrigation Department, Government of Maharashtra.

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Vide order dated 28.11.2019, the Tribunal considered the report filed by the Committee. However, since the applicant raised some objections thereto, the matter was referred back to the Committee to consider the same. Against the said order, the Municipal Council preferred Civil Appeal Nos. 3012-3013 of 2020, Lonavla Municipal Council v. Ashish Rohidas Shinde & Ors. before the Hon’ble Supreme Court which was dismissed on 28.08.2020.

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Accordingly, further report in terms of minutes of the meeting held on 01.01.2020 has been placed on record. The demarcation was duly carried out. The applicant was also heard and based on the demarcation dated 24.12.2019 and objections of the parties, the Committee decided that the encroachment be removed. The substance of the report is quoted below:-

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“The Committee had heard the applicant orally on 12.12.2019. The applicant has not pressed the point No. A which pertains to minutes of the meeting. The applicant merely pressed for clause B and

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Clause C, following points arise on basis of written objection and oral submission. The point wise decision is also given below each individual point.

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1) Boundaries of Survey number are not mentioned. In the demarcation dated 24.12.2019 boundaries are specifically mentioned.

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2) Encroachment towards east west and north side of Survey No. 24 in Indrayani River is not shown. In the demarcation dated 24.12.2019 encroachment towards north side west side and east side of about 257 sq.mtrs in Green hedge line is shown.

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3) Shri. Prakash Porwal has constructed entrance road in river bed is not shown. In the demarcation dated 24.12.2019 it is seen that on south eastern side outside the survey No. 24 huge dumping in Indrayani River bed has been done and approached road is constructed with gate and retaining wall is constructed. Irrigation had not given any permission to make any dumping for constructing approach road.

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4) Entrance gate is not shown in earlier demarcation. In the demarcation dated 24.12.2019 entrance gate is shown over the illegal dumping in the Indrayani River.

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5) The retaining wall constructed in the Indrayani River is not shown. In the demarcation dated 24.12.2019 retaining wall from south eastern side to north or Survey No. 24 in Indrayani River is shown in double line in light Blue color. For which the irrigation department has not given any permission.

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6) Fencing constructed in Indrayani River is not shown. In the demarcation dated 24.12.2019 two fencing are shown one on the south eastern side and one on the south western side both upto north outside Survey No.24 is shown in with Red color line with Red dots.

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7) To show changes from 2007 to 2019 in the google images. The Committee has to go as per the Government Record maintained by Dy S.L.R and co-relate the same with the changes at the site. As per the same there is an illegal dumping in Indrayani River and encroachment of about 257 sq.mtrs. The Committee also studied the google images from 2007 onwards, it was observed that there was a slope over Survey No.24 from South to North upto the encroached area in the Indrayani River. The North was at lower level then South. However, by perusing the google imaginary it is observed that the slope from south to North is filled up and made at one level and the same level extends beyond boundary of Survey No.24 on the North Side and on South East side where the encroachment and road is constructed for which no permission is sought from any authority.

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8) The construction on the Western side of Survey No. 24 is only half shown.

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In the demarcation dated 24.12.2019 no construction outside Survey No. 24 on western side is shown. The Committee members also physically verified that on 24.12.2019 there is no construction outside Survey No. 24 on the western side.

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9) The Committee had done VDO Shooting on 10.5.2019 and the same be produced before the Hon'ble NGT The Committee is producing the C.D. of the VDO Shooting Dt. 10.5.2019.

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10) To consider the Super imposition image of Google prepared by G Solution and Company for applicant at Page 95 of their written submission.

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The said super imposition is considered by the Committee. G Solution has super imposed a tentative boundaries of Survey No.2 4 over the demarcation dt.22.5.2019. However, the demarcation dt. 22.5.2019 has been found to be incorrect as per the letter of Dy. S.L.R. Vadgaon Maval. Apart from the same Google image dose not depict the boundaries of any survey number as per the record of the Government. Therefore, the said image cannot be considered find actual area of encroachment. Therefore, the Committee had filed application with Dy. S.L.R. to do new demarcation which is conducted on 24.12.2019 and submitted on 30.12.2019. The demarcation dt. 24. 12.2019 is as per the record of the Survey number 24 and corresponding to CTS No. 1 maintained with the Government and encroachment is found on its perusal.

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11) The Blue Line and Red Line are in correct. The work of demarcation of Blue line and Red line was completed by Irrigation Department in the year December 2014 as per guiding instructions in Chapter VIII of Maharashtra Dam Safety Manual, the Government policy of demarcation of flood lines and land used under the flood lines of notified rivers and nalas wide government circular FDW 1089/243/89/IM (Works) dt. 21.9.1989. The said lines have been marked by following procedure. The said lines are absolutely correct.

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II. The Committee has also gone through the written submission filed by the Applicant on 4th December, 2019. The same is running in 35 pages and is in Clause A to F. Clause A is pertaining to the allegation regarding manipulation of the minutes of meeting dated 8th July, 26th July and 28th July, 2019. During the course of oral argument, the Applicant withdrew the same, orally. However, it is the contention of the Applicant that he has obtained copies of the said minutes under Right to Information Act and the same are produced by him as Annexure A (Colly). By perusing the copies produced by the Applicant, it is seen that at page No.43 of the compilation, a copy of the minutes of meeting dated 8th July, 2019. The part of the same is also produced at page No.45. However, there are no signatures of any of the Committee members over the same. Moreover, the same is scanned by Scam Scanner. No documents are scanned by a Scam Scanner, which is normally done by a Mobile Gadget. Upon

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tallying with the copy of the minuets filed by the Applicant, it is seen that the same is different from the actual minutes. In the actual minutes, the last portion is totally different. On the page No. 57, the Petitioner has filed copy of attendance sheet in which it is shown as three persons have signed the same. However, the original minutes show more people have signed, which includes the Chief Officer LMC. Moreover, the same is also scanned by Scam Scanner. At page No. 63, an attendance sheet for 20^th August, 2019 is filed, which is signed by six persons. However, the signature over the same is below the said stamp. A suspicion is cast as to the source of the said document. The Chief Officer has already issued a notice to the Petitioner to produce the original copies, allegedly received by them. However, none of the same materially affect any work of the Committee.

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B. The Joint Committee Report dated 07.09.2019 is not in compliance with the directions of the Hon’ble Tribunal dated 27.02.2019.

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‘B’ pertains to the report of the Joint Committee dated 7.9.2019 is not in compliance with the directions of the Hon'ble Tribunal. The same is not correct. The Committee is required to act, as per which is required the record maintained by the Department of Land Records and Demarcation, to be done by the Department of Land Records. Already the Committee had filed on record the efforts made by the Committee to procure the same.

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C. Surveyor in the survey map dated 22.05.2019 has omitted to show River Indrayani on the westward side of the impuged site.

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The demarcation map dated 22^nd May, 2019 was got prepared by the Department of Land Records to the Deputy Superintendent of Land Records. It is the contention of the Petitioner that River on the western side is not shown. In Sub-Clause (e) to (c), the Petitioner themselves have stated that the Joint Committee through its nodal agency on 20th August 2019 had called upon the Surveyor to disclose as to why River Indrayani on the western side is not shown.

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D. The Survey map dated 22.5.2019 submitted by the Land Surveyor does not depict the correct amount of encroachment undertaken by the Respondent No.5 by illegally earth-filling in River Indrayani.

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The nodal agency had written to the Deputy Superintendent Land Records and sought an explanation by their letter had stated that they are required to, once again, demarcate the said land, as they had not demarcated the Survey No.24, as per the Government maintained boundary and also not demarcated the extent of encroachment. Therefore, the demarcation was, once again, got done on 24 December, 2019 and a map to that effect was made available by the Deputy Superintendent Land Records on 30th December, 2019. The same is produced along with this report and marked as Exh._____.

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E. Comments on the Brief Inspection Report dated 21.05.2019 of the Irrigation Department vis-à-vis demarcation of flood lines:

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As per the Brief Inspection Report dated 21st May, 2019, in the last few lines, the Irrigation Department has clearly opined that, unless and until actual demarcation is done, it cannot be ascertained whether there is any encroachment in the Indrayani River and, if so, to what extent. Therefore, without proper demarcation, the said encroachment and its extent could not be identified.

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F. Violation by the Respondent No. 5 to the order dated 17.05.2018 passed by the Hon’ble Tribunal:

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The Petitioner is contending regarding violation by the Respondent No.5 Mr. Prakash Porwal of the order passed by the Tribunal dated 17th May, 2018, regarding maintaining statusquo. The said order was passed prior to formation of the Joint Committee Report. In Sub-Clause (d) and (e) of Clause F, the Petitioner has contended that the Respondent No.5 has illegally earth-filled the River Indrayani, by constructing a stone fencing wall and re-located the fencing towards the landward side of River Indrayani and by re-locating the fencing, is trying to demarcate the boundary of the construction that the earth-filling at the impugned site was not at the behest of the Respondent No.5. Certain photographs are produced by the Petitioner. The Committee has been constituted merely to identify the encroachment whether now or earlier by the Respondent No.5. Already the Committee, by perusing the demarcation made by the Department, i.e, the Deputy Superintendent of Land Records dated 24th December, 2019, has come to conclusion regarding the encroachment by the Respondent No.5.

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II.. The Committee has observed that Prakash Porwal has done following illegal activities.

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a) He has made dumping in Indrayani River Bed by constructing retaining wall on the north side of Survey No. 24. He has also constructed a temporary swinging foot bridge from the encroached area on the north side to the northern bank of the Indrayani River. The same is also illegally constructed.

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b) Mr. Porwal has also made dumping for constructing for illegal approached road by dumping in the Indrayani River on south east boundary of Survey No.24 and has also constructed an illegal gate, retaining wall and fencing.

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c) He has also constructed illegal fencing on the north western boundary. He has also in possession of encroached area to on the north side of Survey No.24 which has been reclaimed by illegal dumping and construction of retaining wall in Indrayani River.

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CONCLUSION

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The Committee has conclusion on the basis of the demarcation dt. 24.12.2019 and the objections filed by the applicant that Mr. Prakash Porwal has made and illegal dumping and encroachment in the Indrayani River of 257 sq.mtr partially towards north west boundary, north boundary and south east boundary of Survey No.24 in Indrayani River. The Committee had decided that the local authority shall take appropriate action of removing dumping and encroachment as per the procedure as early as possible. This decision shall be submitted with the Hon'ble National green Tribunal Nodal Agency Chief Officer, Lonavala Municipal Council.”

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The Applicant has filed further objections on 18.02.2020 which have already been gone into and indefinite exercise is not called for. There is also no merit in the objections of the respondent No.5. Demarcation has been done by a Committee of competent authorities under directions of this Tribunal. The said report has to be acted upon.

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Accordingly, we dispose of this application directing the Committee to take further remedial action in terms of its report. In case of any dispute, the Collector who is the statutory authority under the relevant law may issue further directions.

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All pending E.A.s and M.A.s also stand disposed of.

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Adarsh Kumar Goel, CP

S.K. Singh, JM

Dr. S.S. Garbyal, EM

Dr. Nagin Nanda, EM

December 16, 2020 Original Application No. 194/2018 (M.A. No. 764/2018, M.A. No. 1623/2018, (Earlier O. A. No. 17 of 2018(WZ) With Execution Application No. 40 & 41/2019 SN

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Ashish Rohildas Shinde v. Lonavala Municipal Council

Case brief

What is this about?

What did the court decide?

Ashish Rohildas Shinde v. Lonavala Municipal Council

Case brief

What is this about?

What did the court decide?

What the court decided

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