Allowed

1. Gobardhan Prasad Dalai S/O Late Sripati Charan Dalai Aged About 68YEARS v. 1. State of Odisha Revenue & Disaster Department Odisha Bhubaneswar

NGT1 May 2024Original Application No. 101/2023

Case brief

AI extract

What is this about?

The National Green Tribunal addressed an application alleging illegal encroachment on land recorded in NHAI's name. The Tribunal accepted NHAI's stand that the land transferred to the State Government and directed the District Collector to evict encroachers within three months and correct revenue records.

What did the court decide?

Direction to the Collector & District Magistrate, Balasore to remove encroachers from the specified plots within three months and direct revenue authorities to correct land records.

1. Gobardhan Prasad Dalai S/O Late Sripati Charan Dalai… — Environment and Pollution | NGT (2024)

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Court No.1

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Item No.11

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BEFORE THE NATIONAL GREEN TRIBUNAL EASTERN ZONE BENCH, KOLKATA

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(THROUGH PHYSICAL HEARING WITH HYBRID MODE)

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Original Application No.101/2023/EZ

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IN THE MATTER OF :

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Gobardhan Prasad Dalai, S/o Late Sripati Charan Dalai, Aged about 68 years, R/o Baramadhia, P.O./P.S.-Basta, District-Balasore, Odisha, Odisha, Pin – 756029,

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…Applicant(s)

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Versus

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State of Odisha, Through its Additional Chief Secretary, Revenue and Disaster Department, Odisha, Bhubaneswar – 751001,

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District Collector and District Magistrate, Balasore, Kacheri Road, Vivekananda Marg, Manikhamb, Balasore, Odisha, Pin – 756001,

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The Project Director, Project Implementation Unit (PIU), National Highway Authority of India (NHAI), Plot No.1086, Chandmari Padia Road, Sahadevkhunta, P.O.-Balasore, Pin – 756001,

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Regional Officer, National Highway Authority of India (NHAI), 301-A, 3^rd floor, Pal Heights, Plot No.J/7, Jayadev Vihar, P.O.-Bhubaneswar, Khurdha, Odisha, Pin – 751013,

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Office of the Tehsildar, Basta, Balasore, Baharda Bazar, Basta,

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National Highway Authority of India (NHAI), Kharagpur, Project Director, Project Implementation Unit (PIU), Kharagpur,

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…Respondent(s)

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Date of hearing: 01.05.2024

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CORAM: HON’BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER HON’BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER

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For Applicant(s) : Mr. Sankar Prasad Pani, Advocate a/w Mr. Ashutosh Padhy, Advocate (in Virtual Mode)

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For Respondent(s) : Mr. Anand Prakash Das, ASC for R-1,2&5 (in Virtual Mode), Ms. Manika Roy, Advocate for R-3,4&6 (in Virtual Mode)

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ORDER

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Mr. Sankar Prasad Pani assisted by Mr. Ashutosh Padhy, learned Counsel is present for the Applicant.

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The allegation of the Applicant in the present Original Application is that illegal and unauthorized construction has been made on Khata No.328, Plot Nos. 124, 377 and 379, having Kissam ‘Nayanjori’ which is stated to be recorded in the name of the National Highway Authority. These constructions are alleged to have been made by encroachers.

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It is stated that the Hon’ble High Court of Orissa at Cuttack, had taken cognizance of the matter in Writ Petition (C) No. 3567 of 2020 ( Gobardhan Prasad Dalai Vs. State of Odisha & Ors .), and by order dated 09.07.2021 it was observed that action has been initiated for eviction of illegal encroachers as per document dated 12.08.2011 and there is also a civil suit pending, therefore, direction was given by the Hon’ble High Court to complete the entire exercise within a period of three months. The order of the Hon’ble High Court dated 09.07.2021 reads as under:-

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“ORDER

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09.07.2021

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1. This matter is taken up through video conferencing.

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2. Heard learned counsel appearing for the parties.

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3. The matter involves so many developments involving the eviction of illegal encroachers. From document at page-30 of the brief, an information dated 12.08.2011 it is noticed that that there has been already initiation of steps for eviction, but those are all taken place in the year, 2011. Sri Mohanty, counsel appearing for the petitioner complains in spite of all these developments, there is in fact no eviction as of now. On the self same issue, it appears, petitioner has already ventilated his grievance in the Grievance Cell of Collector & District Magistrate, Balasore appearing to be pending since 25.11.2014. There is also appearing involvement of some Civil Suit as

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per Anneuxure-7/A. This Court finds surprise in pendency of such issue for such long period.

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4. it is considering the background involved herein and since a grievance petition of the petitioner dated 25.11.2019 appearing at page 37 of the brief on the self same issue is pending in the Grievance Cell of the Collector, Balasore, in the event such issue is pending consideration of the Collector, decision, as appropriate, be taken on the same taking into account the development through the writ petition involved herein, the information of the Tahasildar appearing at page-30 and the development through the Civil Suit at Annexure-7/A by completing the entire exercise within a period of three months from the date of communication of a copy of this order by the petitioner with opportunity of hearing to the petitioner and the persons likely to be affected.

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5. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certificated copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court’s Notice No.4587, dated 25^th March, 2020 as modified by Court’s Notice No.4798 dated 15^th April, 2021.”

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It is alleged that in spite of the order of the Hon’ble High Court, till date nothing has been done to evict illegal encroachers from the plots in question.

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It is further stated that as per Report of the Tahasildar, Basta, Khata No. 328, Plot No. 124, 377 and 379, having Kissam Nayanjori, is recorded in the name of the National Highway Authority and this land is situated in the middle of Basta Bazar adjacent to the road connecting Basta Bazar to National Highway. It is stated that Plot Nos. 127 and 377 are situated on the north of the main concrete road of the Bazar whereas Plot No.379 is on the opposite side of the said concrete road.

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It is also alleged that no demarcation has yet been carried out in respect of the Nayanjori Kissam of land by the Tahasildar-Basta and the National Highway Authority of India in spite of the order of the Collector & District Magistrate, Balasore, dated 12.11.2021.

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The Collector & District Magistrate, Balasore, has filed affidavit dated 06.11.2023 stating therein that the land in question bearing Khata No.328, Plot Nos.124, 377 and 379, Kissam-Nayanjori of Mouza-Barmadhia, stands recorded in the name of the National Highway Authority of India (‘NHAI’ for short), and the said authority is the appropriate authority to take care of the scheduled land and that the Collector is unable to take any action without any prior intimation from the NHAI.

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With reference to the W.P. (C) No.3567 of 2020, it is stated that a Miscellaneous Case bearing No.55/2021 was instituted by the Collector, Balasore, and after hearing the parties, the same was disposed of by the Collector, Balasore, vide order dated 12.11.2021, with a direction to the Tahasildar, Basta, to demarcate the scheduled land of Mouza-Barmadhia in the presence of the NHAI. The relevant extract of the order dated 12.11.2021 as quoted in para 7of the affidavit reads as under:-

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“ln reply Tahasildar, Basta has reported that the Khata No.328 bearing Plot No.124, 377 and 379 having kisam Nayanjori stands recorded in the name of National Highway Authority as revealed from the records available in Tahasil The schedule land is situated in the middle of Basta Bazar and adjacent to the road connecting Basta Bazar to the National Highway. During field verification, it is found that Plot No.124 and 377 is on the north of the main concrete road of the Bazar where Plot No.379 is situated on the opposite side of the concrete road. As per report of the concerned R.I., it is seen that there is no obstruction on the connecting road as well as to the Nayanjori land. The actual possession of land will be traced out after due demarcation of the land by the requisition of NH authorities.

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In view of the above report submitted by the Tahasildar, Basta, it is not clear that the extend of encroachment and obstruction on the road in this regard, the Tahasildar, Basta is hereby directed to conduct joint demarcation in presence of NH Authority and in case any encroachment is found, the unauthorised encroachers be evicted following due procedure of Law/Rules immediately".

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xx xx xx

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In the affidavit, it is further stated that application was received from the present Applicant on 08.06.2022 whereon the Tahasildar, Basta, took steps for demarcation of land bearing Plot Nos. 124, 377 and 379 corresponding to Khata No.328 having KissamNayanjori of Mouza-Barmadhia. It is stated that a letter dated 24.06.2022 was also issued to the Project Director, NHAI, Kharagpur Division, to depute their staff during the process of demarcation but demarcation could not be executed due to nonavailability of staff of NHAI.

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It is also stated that from the Spot Enquiry Report it is established that there is encroachment over the land in question but the extent of encroachment can be assessed only after a proper joint demarcation of the land is carried out in the presence of the officials of the NHAI and the Tahasil Office, Basta.

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In the affidavit, it is also stated that a Field Enquiry was also conducted by the Additional Tahasildar, Basta, along with Revenue Supervisor, Basta and the concerned Revenue Inspector (RI), regarding the status of the land in question on 02.11.2023 during which it was observed that there are encroachments in the plots in question and encroachers have constructed illegal structures like – cabin, temporary shops etc. over it. The Field Enquiry also reveals that there is no blockage of water on the plot as the drain is covered and there is free flow of water under the slabs.

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It is also stated that since the land in question is not under the control of the Revenue and Disaster Management Department, Odisha, and the same is recorded in the name of the NHAI, the NHAI is required to apply in the prescribed manner before the competent authority for demarcation and eviction of encroachment, if any.

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The National Highways Authority of India (NHAI), Respondent Nos.3, 4 & 6, in its affidavit dated 30.01.2024 has stated that the Applicant herein had earlier filed W.P. (C) No.16641 of 2006 before the Hon’ble High Court, Cuttack, Odisha, with the same grievance and the Hon’ble High Court had passed an order on 01.07.2007 directing the Collector, Balasore, to get the matter verified and thereafter on 31.12.2016, the Collector, Balasore, took up the case of the petitioner and observed that since the land in question belongs to the NHAI, hence, Project Director, NH-60 is required to take action as provided in Section 26 of the Control of National Highways (Land and Traffic) Act, 2002, for protection of their land for which the Tahasildar, Basta and IIC, Basta Police Station will provide necessary assistance, if needed by NHAI.

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It is stated that in compliance of the order of the Collector, Balasore, dated 31.12.2016, the Project Director, PIU-Kharagpur, NHAI, submitted an Action Taken Report dated 05.12.2017 to the Collector, Balasore, extract of which is quoted in para 9 of the affidavit which reads as under:-

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“In order to mitigate the grievances of the Applicant in the light of the observation and direction of the Order passed by the Collector, Balasore - a joint site^- inspection by the then the Project Director, PIUKharagpur, LA Officials, NHAI and Project Manager (O&M) M/s BKEL and other officials of BOT Concessionaire for the stretch was conducted on the petition of Gobardhan Prasad Dalai.

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During site inspection, it has been observed that the concerned Plots 124, 377, 379 of Mouza Baramadia PS-Basta, Dist-Balasore are far away from National Highway of NH-60 (more or less one Kilometer). In this regard, it is to state that a bypass road has been constructed namely Basta Bypass keeping the old road/ NH aside. Again the plots in question are situated /abutting in a link road emerging from Basta Bypass to the Basta Railway Station and plots are located nearer to Railway Station. A hand sketch showing the

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position of the plots in question abutting the Station link road is also enclosed herewith for better appraisal.

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It is also to state that vide letter No 11020/2/NHAI/P (KGP)/2006 dt 02.12.2006 (cop enclosed) the then Project Director, NHAI, PIU-Kharagpur intimated Engineer- in- Chief cum Secretary Works Department, Govt of Odisha, Bhubaneswar in the matter of abandoned stretch with a endorsement to the Collector, Balasore that as per Circular No NHIII/P/9/77 dt 30.11.1977 of Ministry of Road Transport & Highways a Bypass/an abandoned length will cease to be part of NH and would no longer vest in the Govt of India. In this regard, it was also referred to the Ministry's letter vide No NH14012/1/06-P&M dt 06.07.2006 which states that the completed portion of the road are automatically transferred to the concerned State Govt for maintenance without making any change in the schedule to the Act or issuing any Notification U/s 5 of the Act.”

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In the Action Taken Report, the stand of the NHAI is that during site inspection it was observed that Plot Nos.124, 377 and 379 of Mouza-Baramadia, P.S-Basta, District-Balasore, are about one kilometer away from the National Highway of NH-60 and that bypass road has been constructed, namely, Basta Bypass, keeping the old road aside.

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The further stand of the NHAI in its affidavit is that the land where the plots in question are situated along with other unutilized land of the old NH/road have automatically stood transferred to the respective State Government of Odisha and, therefore, it is for the appropriate Department of the Government of Odisha to take action for removing encroachments from the land in question and information in this regard has also been communicated to the Collector, Balasore, by the PIU-Kharagpur, NHAI, vide letter dated 15.10.2007. A communication letter dated 05.12.2017 addressed by the GM (Tech) & Project Director, PIU-Kharagpur, to the Collector, Balasore, Odisha, has also been appended to the affidavit

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of the NHAI, wherein the same stand as in the affidavit has been taken by the NHAI.

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Rejoinder affidavit dated 06.03.2024 has been filed by the Applicant, reiterating the allegations in the Original Application.

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We have heard the learned Counsel for the parties and perused the documents on record.

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The allegation of the Applicant is that illegal and unauthorized construction has been made in Khata No.328, Plot Nos.124, 377 and 379, having Kissam-Nayanjori, which is recorded in the name of the NHAI. The categorical stand of the NHAI in its affidavit is that the land where plots in questions are situated along with other unutilized land of the old NH/road stand automatically transferred to the respective State Government of Odisha and any action required with regard to removal of encroachments has to be taken by the concerned appropriate Department of the Government of Odisha and a communication in this regard has also been made to the Collector, Balasore, vide letter dated 15.10.2007 wherein it is categorically stated that the land in question along with other unutilized land of the old NH/road stand automatically transferred to the respective State Government of Odisha and action for removal of the encroachments from the plots in question should be taken by the Collector, Balasore.

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Considering the categorical stand of the Respondent NHAI with regard to the plots in question, we dispose of the present Original Application with a direction to the Respondent No.2, Collector & District Magistrate, Balasore, to take immediate steps for removal of encroachers and unauthorized structures from the Khata No.328, Plot Nos.124, 377 and 379 having Kissam-Nayanjori within

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three months i.e., by 31.07.2024 and file affidavit of compliance by

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16.08.2024.

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So far as correction of the revenue records with regard to the name of NHAI from the land in question is concerned, the letter dated 15.10.2007 should be acted upon with a direction by the Collector, Balasore, to the revenue authrities to act thereon.

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I.As., if any, stand disposed of accordingly.

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There shall be no order as to costs.

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B. Amit Sthalekar, JM

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Dr. Arun Kumar Verma, EM

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May 01, 2024, Original Application No.101/2023/EZ AK

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1. Gobardhan Prasad Dalai S/O Late Sripati Charan Dalai Aged About 68YEARS v. 1. State of Odisha Revenue & Disaster Department Odisha Bhubaneswar

Case brief

What is this about?

What did the court decide?

1. Gobardhan Prasad Dalai S/O Late Sripati Charan Dalai Aged About 68YEARS v. 1. State of Odisha Revenue & Disaster Department Odisha Bhubaneswar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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