Allowed

MD Sheir Ansaruddin v. State of West Bengal

NGT9 Sept 2024Original Application No. 59/2024

Case brief

AI extract

What is this about?

The Tribunal directed the Barasat Municipality to proceed with the rejuvenation action plan for restoring a polluted waterbody, constructing a municipal sewage drain, and permanently sealing individual domestic drains currently discharging sewage into the waterbody, with a deadline by June 2025. This was done despite pending land conversion proceedings.

What did the court decide?

Direction to Barasat Municipality to complete the rejuvenation of the waterbody and construction of the municipal sewage drain by 30.06.2025 and seal individual domestic drains permanently.

MD Sheir Ansaruddin vs State of West Bengal — Environment and Pollution | NGT (2024)

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Item No.03

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Court No.1

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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.59/2024/EZ

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(Earlier O.A. No.25/2024/PB)

Md. Sheik Ansaruddin

Applicant(s)

Versus

State of West Bengal Respondent(s)

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Date of hearing: 09.09.2024

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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. Arijit Varmarkar, Advocate

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For Respondent(s) : Mr. Rajib Ray, Advocate for R-1 & 2,

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Mr. Ayush Kumar Dadhich, Advocate for R-3,

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Mr. Sankar Ghosh, Advocate a/w

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Mr. Supriya Ray Choudhury, Advocate for R-4

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ORDER

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Affidavit dated 03.09.2024 has been filed on behalf of the

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Respondent No.4; the same is taken on record.

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Counter affidavit dated 03.09.2024 has been filed on behalf of the Respondent No.4; the same is taken on record.

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(Final order of the said case will be uploaded in the National Green

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Tribunal’s website by separate sheets of paper)

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B. Amit Sthalekar, JM

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Dr. Arun Kumar Verma, EM

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September 09, 2024, Original Application No.59/2024/EZ (Earlier O.A. No.25/2024/PB) MN

Item No.03

Court No.1

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.59/2024/EZ

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(Earlier OA No.25/2024/PB)

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In the matter of:

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Md. Sheik Ansaruddin 36, Kazipara Main Road, P.O. – Kazipara, P.S. – Barasat North 24 Parganas

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……..Applicant(s)

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Versus

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1. District Magistrate North 24 Parganas;

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2. Superintendent of Police North 24 Parganas;

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3. West Bengal Pollution Control Board Through its Member Secretary;

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4. Barasat Municipality Through its Municipal Commissioner, Rishi Bankim Chandra Rd., Milanpally, Gupta Colony, Barasat, Kolkata, West Bengal-700124

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……..Respondent(s)

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Date of hearing: 09.09.2024 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. Arijit Varmarkar, Advocate

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For Respondent(s) : Mr. Rajib Ray, Advocate for R-1 & 2,

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Mr. Ayush Kumar Dadhich, Advocate for R-3,

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Mr. Sankar Ghosh, Advocate a/w

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Mr. Supriya Ray Choudhury, Advocate for R-4

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ORDER

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This Original Application was originally registered in New Delhi Bench of National Green Tribunal as O.A. No.25/2024, (Md. Sheik Ansaruddin Vs. State of West Bengal), on a letter petition received by the New Delhi Bench from the Applicant, a resident of Kazipura Main Road, P.O.-Kazipura, P.S.-Barasat, North 24 Parganas, West

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Bengal, alleging encroachment and illegal construction on a Pukur (water body).

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The matter was entertained by the New Delhi Bench of National Green Tribunal on 16.02.2024 and has thereafter been transferred to the Eastern Zone Bench, Kolkata. The Original Application has now been re-numbered as O.A. No.59/2024/EZ, Md. Sheik Ansaruddin Vs. State of West Bengal.

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The allegation in the letter petition dated 31.07.2023 is that illegal constructions are being carried out of house buildings in L.R. Dag No.127 (Pukur Par) owned by the Barasat Municipality being Khatian No.1679 which is recorded as ‘Pukur Paar’ which cannot be used for making constructions thereon and there is no conversion document to show change of character of the land.

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It is also alleged that unknown persons are also filling up the belt of the pond and all waste water (toilet waste) is being channeled/drained out into the L.R. Plot No.128 which is Pukur/Pond.

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It is further alleged that the water body is highly polluted in view of the aforesaid activities around the pond and local residents are unable to use the said pond for any purpose and even pisciculture has been stopped.

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The Tribunal at the time of admission, constituted a Fact Finding Committee comprising of the following Members:

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(i) Senior Scientist, West Bengal Pollution Control Board;

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(ii) District Magistrate, North 24 Paraganas or his representative not below the rank of Additional District Magistrate; and

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(iii) Senior Officer from Barasat Municipality.

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The Committee was directed to visit the site and submit its Report.

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The District Magistrate, North 24 Parganas has filed its affidavit dated 10.05.2024 bringing on record the Inspection Report of the site inspection carried out on 22.04.2024. The Report reads as under: -

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“Report in the matter of Original Application No.59/2024/EZ (Earlier O.A. No.25/2024/PB) vide Hon’ble NGT order (Eastern Zone Bench,

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Kolkata) dated 01.04.2024

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Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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The Hon’ble National Green Tribunal, Eastern Zone Bench constituted a committee, comprising Senior Scientist, West Bengal Pollution Control Board (WBPCB), District Magistrate, North 24 Parganas or his representative not below the rank of Additional District Magistrate and Senior Officer from Barasat Municipality. The District Magistrate, North 24 Parganas was to act as the nodal office for all logistic purposes and filing the Report of the Committee on affidavit.

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Pursuant to the order of the Hon’ble NGT, the Committee comprising of the following members was constituted as per nominations received from the participating departments/offices:

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1. Additional District Magistrate and District Land & Land Revenue Officer, North 24 Parganas

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2. Environmental Engineer & In-charge, Barrackpore Regional office, WBPCB

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3. Executive Officer, Barasat Municipality

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Accordingly, the membes of the committee visited the area on 22.04.2024 at 14:30 hrs.

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The observations of the constituted Committee are as follows:

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1. The waterbody under discussion is located at plot no. 128, JL No.

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78 and mouza-Uttarhat. The embankment of the waterbody, located at plot no. 127, JL No. 78 and mouza- Uttarhat, has been cemented by Barasat Municipality. Barasat Municipality is the recorded owner of the waterbody and its adjacent land on the east

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and north side. The classification of this land is ‘pukurpar’. The municipality had allotted the land to several EWS/Minority families for rehabilitation purpose. Thereafter houses were built under PMAY (HFA) scheme on the east and north side of the waterbody without leaving any space in between the houses and the waterbody.

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2. The domestic wastewater drains of these houses were also connected directly to the waterbody due to absence of any municipal sewage drain in that portion of land. Considerable amount of green algae growth from the waterbody was observed to have been removed and kept on the side of the waterbody beside the adjacent road.

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3. The municipality has proposed a plan to construct municipal sewage drain in the area under discussion. The proposal has been already approved and tender has also been issued (as stated by the Executive Officer). The Executive Officer, Barasat Municipality, also informed that as soon as the municipal sewage drain is constructed and house connections provided, the drains directed towards the waterbody will be permanently sealed and necessary steps will be taken to restore the condition of the waterbody.”

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The Superintendent of Police, Barasat Police District, North 24 Parganas has also filed his affidavit dated 10.05.2024 wherein it is stated that the land in question at Kazipara Main Road P.S. – Barasat, Ward No.-1 is recorded as a ‘waterbody’ and belongs to the Barasat Municipality and the classification of the land is ‘Pukurpar’; over the land sixteen families have been residing since the last thirty years and who have afterwards been rehabilitated by the Barasat Municipality since 2009; they have also been provided electricity by the West Bengal State Electricity Distribution Company Limited

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(hereafter WBSEDCL); a Colony of occupants was found set up surrounding the pond namely ‘Sanpukur’ with a two-storied building adjacent to the pond where construction work is going on. It is stated that the domestic waste water drains of these houses have been connected directly to the waterbody due to absence of any municipal sewage drain in the portion of the land.

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The District Magistrate, North 24 Parganas has filed further affidavit stating that with regard to the same matter one Hosne Ara Begum has filed WPA No.16611 of 2023 “Hosne Ara Begum Vs. State of West Bengal and Ors.” wherein the Hon’ble High Court of Calcutta has passed an order dated 22.11.2023 disposing of the Writ Petition with liberty to the Petitioner to submit comprehensive representation before the Respondent No.7, District Magistrate, North 24 Parganas and direction was issued to the Respondents to consider and dispose of the representation after giving opportunity of hearing to all concerned.

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The Order of the Hon’ble High Court dated 22.11.2023 is extracted hereinbelow: -

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“WPA 16611 of 2023 Hosne Ara Begum Vs

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The State of W.B. & Ors.

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Mr. Partha Pratim Roy

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Mr. Dyutiman Banerjee

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… for the Petitioner Mr. K. N. Nabi

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Mr. Dipjyoti Chakraborty

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… for the State

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Affidavit of service filed by the petitioner is taken on record. None appears for the Barasat Municipality despite service. Heard learned Counsels for the parties.

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The petitioner appears to be recorded owner of LR Dag No.132, JL No.78, LR Khatian No.773 and 2987/1 (Barasat Municipality).

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The allegation of the petitioner is two-fold:- the Municipality is raising construction in the government land in dag nos. 127 and 128

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recorded as ‘pukurpar’ and ‘pukur’ respectively, adjoining the petitioner’s land and in the process, has raised construction by encroaching upon a portion of the petitioner’s land without acquiring the same by due process of law.

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The petitioner seeks to submit a comprehensive representation ventilating her grievance before the concerned authority and prays for direction upon the concerned authority to consider the representation at the earliest.

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It is submitted on behalf of the State respondents that the 7^th respondent be directed to deal with the representation, in accordance with law.

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In view of the above, the writ petition is disposed of with liberty to the petitioner to submit a comprehensive representation before the 7^th respondent within two weeks from date. the 7^th respondent is directed to consider and dispose of the representation within a period of four weeks from the date of receipt thereof after granting reasonable opportunity of hearing to all concerned including the petitioner and the Barasat Municipality, in accordance with law.

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The decision taken by the authority shall be communicated to the petitioners within a week thereof.

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Pending disposal of the representation, no further construction shall be made by the authority by encroaching upon the petitioner’s land.

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However, there shall be no order as to costs.

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Since no affidavit is invited, the allegations contained in the petition are deemed not to be admitted.

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Urgent certified website copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.”

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It is further stated that in compliance of the High Court order dated 22.11.2023, a miscellaneous proceeding was initiated on the representation of the said Hosne Ara Begum, giving opportunity of hearing and representation to Hosne Ara Begum and on 04.07.2024 the District Magistrate, North 24 Parganas passed order. The order of the District Magistrate, North 24 Parganas dated 04.07.2024 reads as under: -

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“ Order Sheet, dated from 01.12.2023 to Misc Case No. ……… of 2024 District – North 24 Parganas

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Nature of Case:

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Proceeding in compliance with the order passed by Hon’ble Justice Suvra Ghosh, High Court, Calcutta on 22.11.2023 in W.P.A. No. 16611 of 2023 in the matter of Hosne Ara Begum - Vs – State of West Bengal and others.

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9 ……………….. 04.07.2024	Case record is taken up for hearing. Sk. Absaruddin and Sk. Ansaruddin both sons of petitioner Hosne Ara Begum filed Hazira. Sri Sapath Bhanja, Officer-in-Charge, Mafizul Ali, Surveyor, Indraneel Bhattacharya, Assistant Engineer of Barasat Municipality filed Hazira. The representative of Barasat Municipality submitted the action taken report as directed yesterday i.e. on 21.06.2024 which made a part of the proceeding from which it transpires that the concern section of the said municipality had taken steps to remove the stagnant water and garbage heaped in the vicinity of the petitioner land. A project initiated and sanctioned to this municipality for rejuvenation of Shan Pukur in which the development of road construction of new drain is also included in the scheme to flow out the waste water to municipal drain of that area. But the concerned municipality had not obtained the necessary approval for change of classification from the competent authority. Ansaruddin emphatically states that the idea is very good but requested that during construction of drain the layout plan must not passing through his rayati land i.e. plot 132 (LR) of mouza- Uttarhat under Barasat Police Station. After hearing all sides and considering adduced documents in the records, the finding of the factual matrix and legal issues are recorded hereunder for deciding the matter in accordance with law:- 1) The subject land involved in the matter is of the LR plots 132, 126 and 127 of Uttarhat mouza under Barasat Municipality where garbage and sewage water accumulated in the petitioner land i.e. 132 of the said mouza.
	2) From the field enquiry report submitted by the concerned BL & LRO, Barasat conducted in presence of the petitioner and municipal authority transpires that there is no encroachment of petitioners land as demarcated by the officials.
	3) The Municipal Authority had initiated project for construction of pucca drain in that area so that no water logging takes place in that area. In view of above findings it is ordered that:-
	a) The Municipal authority must apply to the competent authority for change of classification of plot no. (127) recorded as ‘Pukur Par’. The Competent Authority

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(ADM,LR) will dispose of the conversion application within ten (10) days after getting the petition from the Municipal Authority. Before allowing such conversion, all construction work related with drain must be stopped violating such order action will be taken as per law. b) The BL&LRO, Barasat is directed to take legal action for unauthorized conversion. An action taken report must be submitted within 15 (fifteen) days after receiving the order. The case is thus dispose of the orde of Hon’ble High Court dated 01.12.2023. Certified copies of this order must be communicated to the parties free of cost. District Magistrate North 24 Parganas”

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The Barasat Municipality has filed affidavit dated 31.07.2024 wherein it is stated that the waterbody in question is located on Plot No.128, J.L. No.78, Mouza – Uttarhat; the embankment of the said waterbody has been cemented by the Barasat Municipality and the Barasat Municipality is the recorded owner of the waterbody and it’s adjacent land on the east and north side and the classification of the land is ‘Pukurpar’. It is further stated that the Municipality had allotted the land to several Economically Weaker Sections/Minority families for rehabilitation purpose; thereafter houses were built under the Prime Minister Awas Yojana (PMAY) (HFA) on the east and north side of the waterbody without leaving any space in-between the houses and the waterbody.

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It is stated that the domestic waste water from these houses drains directly to the waterbody due to absence of any municipal sewage drain; there is considerable amount of green algae growth in the waterbody which was removed and kept on the side of the waterbody beside the adjacent road. It is also stated that the Municipality has proposed a Plan to construct Municipal drain in

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the area and for this purpose, a proposal has already been approved and Tender has also been issued and as soon as the Municipal Sewage Drain is constructed and the house drainage connections connected thereto, the drains which are at present draining domestic sewage into the waterbody will be permanently sealed and necessary steps will be taken for restoration of the condition of the waterbody.

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It is also stated that the Work Order for restoration/rejuvenation of the waterbody ‘Shan Pukur’ under Ward No.1 of the Barasat Municipality has already been issued vide Memo No. 629-BM/WD07/2023-24 dated 25.01.2024 by the Chairman at the behest of the Board of Councillors, Barasat Municipality to start the work and complete the same within a stipulated timeframe.

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The Work Order dated 25.01.2024 which has been annexed to the affidavit mentions that the total value of the work of rejuvenation of the ‘Shan Pukur’ waterbody comes to Rs.46,17,367.75 (Rupees forty six lac seventeen thousand three hundred sixty seven and paise seventy five only). The Agency contracted namely Rajcon Proprietor/Partner – Rajarsi Baisya & Avijit Baisya, Kolkata has been directed to execute a formal agreement and to take up the work within seven days. The work is scheduled to be completed within 270 (two hundred seventy) days. It is also stated that in terms of the order of the District Magistrate, North 24 Parganas dated 04.07.2024, the Barasat Municipality has also submitted an application requesting for conversion of classification of the municipal land being Plot No.127, Mouza – Uttarhat, J.L. No.78, Khatian No.1679 recorded as ‘Pukurpar’.

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The Barasat Municipality has filed another affidavit dated 03.09.2024 reiterating the contents of its previous affidavit and

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further stating that the records of the Municipality reveal that L.R. Plot No.127 (R.S. Plot-70) being embankment ‘Pukurpar’, Khatian No.1679, J.L. No. 78, Mouza – Uttarhat, Barasat comprising an area of 0.57 acres circumscribes L.R. Plot No.128 (R.S. Plot No.71) recorded as ‘Pukur’ (Shanpukur) having a recorded area of 0.49 acres is owned by the Barasat Municipality. It is also stated that more than 35-40 years back, some individuals began squatting and encroaching the northern and eastern side of the embankment classified as ‘Pukurpar’ in L.R. No.127 and over the time, these individuals established semi-permanent thatched huts on the land and thereafter electricity connections have also been issued in 200809 and the Municipality has also mutated the names of the occupants in the Assessment Records and occupiers’ tax is also being collected from these individuals on the ground that they have squatted on municipal land and belong to the economically weaker section. It is also stated that subsequently, dwelling units have been constructed by some of the occupiers under the Prime Minister Awas Yojana (PMAY)

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It is also stated that the Special Land Acquisition Officer, North 24 Parganas, Barasat requested the Chairman, Barasat Municipality to carryout spot enquiry in connection with L.R. Plot No.127, 128, 132 of Mouza – Uttarhat and submit the Status Report. Consequently, a Sketch Map was prepared by the Revenue Inspector, Barasat – I which indicates that there are 14 dwelling houses existing on the northern and eastern side of the embankment of the pond whose status has been shown in a Chart in the affidavit which reads as under: -

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“House No.	Occupier Name	House No.	Occupier Name
1	Nazir Hossein	8	Sk. Enayat Ali
2	Sk. Anoyar	9	Khokan Ali

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3	Md. Azizul	10	Sofiquel Islam Mondal
4	Sk. Arsaf	11	Mozina Bibi
5	Sk. Arif Ali	12	Abu Basar Mondal
6	Rezia Bibi	13	Rafik Gazi
7	Sk. Ali	14	Sohidul Gazi

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It is also stated that pursuant to the order of the District Magistrate dated 04.07.2024, an application dated 18.07.2024 has been submitted by the Executive Officer of the Municipality to the ADM(LR) for conversion of the character of the municipal land.

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It is also stated in the affidavit that on reconciliation of the L.R. record, a Detailed Project Report (D.P.R.) was prepared in 2022 for restoration of the waterbody which reveals that the area of the waterbody L.R. Plot No.128 has expanded from 0.49 acres as recorded to 0.60 acre i.e. 0.11 acres expansion has occurred due to erosion of the embankment of the waterbody. It is also stated that the Additional Secretary, Government of West Bengal vide his letter dated 19.01.2023 has issued an order with the approval of the Principal Secretary, Government of West Bengal in acceptance of the Tender for Rejuvenation of the said waterbody and embankment commonly known as ‘Shanpukur’ in Ward No.1 of Barasat Municipality.

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Further, affidavit has been filed by the Barasat Municipality also dated 03.09.2024 reiterating the contents of the previous affidavit of the Barasat Municipality. However, it is stated that the said Rejuvenation Project has now been stalled as till date no order has been passed by the Collector under Section 4C of the West Bengal Land Reforms Act 1955 for changing the nature and character of the embankment of the ‘Pukurpar’ in Plot No.127, Khatian No.1679

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We have heard Mr. Arijit Varmarkar, learned Counsel for the Applicant and the Counsel for the Respondents and perused the documents on record.

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From the pleadings of the parties it is not disputed that the land in question is a waterbody recorded as ‘Pukurpar’, also known as ‘Shanpukur’. From the affidavit of the Barasat Municipality it also emerges that the Additional Chief Secretary, Government of West Bengal in terms of the approval granted by the Principal Secretary has issued acceptance of the Tender for Rejuvenation plan of the waterbody in question vide his letter dated 19.01.2023. The time period of completion of the rejuvenation of the ‘Shanpukur’ i.e. the land in question is 270 (two hundred seventy only) days which would be clear from the letter of the Barasat Municipality dated 25.01.2024 addressed to the contracted Agency Rajcon dated 25.01.2024.

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The Inspection Report also mentions and it is also reiterated by the Respondents that the Municipality has proposed a Plan to construct Municipal Sewage Drain in the area in question; the proposal has already been approved and Tender has also been issued; the Executive Officer, Barasat Municipality has also informed that as soon as the Municipal Sewage Drain is constructed and house connections provided, the drains at present directed towards the waterbody, will be permanently sealed and necessary steps will be taken to restore the condition of the waterbody.

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However, in the affidavit of the Municipality it is stated that the Rejuvenation Project has been stalled since no order has been passed by the Collector under Section 4C of the West Bengal Land Reforms Act 1955.

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The order of the District Magistrate, North 24 Parganas dated 04.07.2024 discloses that the Barasat Municipality had submitted the Action Taken Report on 21.06.2024 from which it transpires that the concerned section of the Municipality had taken steps to remove the stagnant water and garbage heaped in the vicinity of the Petitioner’s land (the Petition having been initiated on the behest of Hosne Ara Begum before the District Magistrate); a Project has been initiated and sanctioned to for Municipality for rejuvenation of ‘Shanpukur’ in which the development of road for construction of new drain is also included in the Scheme to allow flow of waste water to the Municipal Drain in the area but it is stated that the Municipality has not obtained the necessary approval for change of classification (of the land in question) from the competent authority.

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The order of the District Magistrate, North 24 Parganas further shows that from the Field Enquiry Report, submitted by the concerned B.L.&L.R.O., Barasat, there is no encroachment of the Petitioner’s land; the Municipal authority had initiated project for construction of pucca drain in that area so that there is no waterlogging in the area. The District Magistrate, North 24 Parganas however directed that the Municipal authority must apply to the competent authority for change of classification of Plot No.127 recorded as ‘Pukurpar’ and the Competent Authority (ADM,LR) will dispose of the conversion application within ten days thereafter but before allowing such conversion, all construction works related with the drain must be stopped.

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We may observe that conversion of the character of the land in proceeding under Section 4C of the West Bengal Land Reforms Act 1955 is wholly distinct from the steps being taken by the Municipality for construction of drain connecting the

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individual/domestic drains of the houses which are at present admittedly flowing into the waterbody in question and therefore, we are of the view that the protection of the waterbody and environment must take precedence over any other proceedings.

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Section 33 of the National Green Tribunal Act 2010 provides that the preventions of the Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Section 33 of the Act reads as under: -

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“Section 33 in The National Green Tribunal Act, 2010

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33. Act to have overriding effect.

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The provisions of this Act, shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

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The District Magistrate, North 24 Parganas, in his affidavit, has not disclosed whether any decision has been taken by A.D.M.&L.R.O. in the conversion proceedings pursuant to the order of the District Magistrate dated 04.07.2024. Needless to say, in the conversion proceedings the District Magistrate/ A.D.M.&L.R.O. will have to take into consideration as to whether the land under consideration had lost its character as ‘Pukurpar’ prior to the cut-off date 24.03.1986 as given in the West Bengal Land Reforms Manual 1955 and if the Collector is of the opinion that the character of the Plot of land has been changed or converted or altered in violation of the provision of the Act, he may, on his own motion or on receiving information to that effect, direct the Raiyat or Lessee for restoration of the concerned land to its original character within the specified time in

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terms of provisions of Section 5A of the West Bengal Land Reforms Act 1955.

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Rule 166(i) of the West Bengal Land Reforms Manual 1955 further provides that 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-ofrights. Such a case should normally be dealt with under section 4(4) of the Act; 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 24.03.1986 i.e. the date of publication in the Official Gazette of the West Bengal Land Reforms (Amendment) Act, 1981.

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Para 166(i) of the West Bengal Land Reforms Manual reads as under: -

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“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. ”

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Sub-Rule (ii) of Rule 166 further provides that if it is proved that the change was deliberately made without reasonable cause after

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24.03.1986, the land shall be vested under section 4(4Xa) or penal action may be taken under section 4D unless prosecution under section 4D is barred by limitation under the Code of Criminal Procedure.

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The Hon’ble Supreme Court in (2001) 6 SCC 496, Hinch Lal Tiwari vs. Kamala Devi & Ors. , has held as under: -

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“13. 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 nonabadi sites.

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14. For the aforementioned reasons, we set aside the order of the High Court, restore the order of the Additional Collector dated 25-21999 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.”

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We are satisfied that the order of the District Magistrate, North 24 Parganas dated 04.07.2024 restraining construction work related to conversion in respect of the land in question cannot be allowed to become a hindrance in the Rejuvenation and Restoration of the waterbody or construction of the Municipal Sewage Drain and connection of the domestic drains leading towards the waterbody with the municipal sewage drain. Once those domestic drains leading to the waterbody are connected to the Municipal Sewage Drain the same have to be permanently sealed.

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For reasons of aforesaid, we dispose of this Original Application with a direction to the Barasat Municipality to proceed forthwith with the Rejuvenation Action Plan for the ‘San Pukur’/the land in question for construction of Municipal Sewage Drain and Restoration of the waterbody and permanently sealing the individual domestic drains at present draining into the waterbody in question.

¶159

We further direct that the Rejuvenation works of the waterbody be carried out without prejudice to the conversion proceedings before the ADM&LRO and it is further directed that construction of Municipal Sewage Drain and connection of individual domestic drains to the same will not confer any tenancy or other rights upon the householders concerned in so far as the conversion proceedings before the A.D.M.&L.R.O. are concerned.

¶160

We further direct the Barasat Municipality, the Respondent No.4 to complete the scheme of Rejuvenation of the ‘San Pukur’ over the land in question by 30.06.2025 positively. The Municipality shall file its Action Taken Report and affidavit of compliance and completion of the Rejuvenation Action Plan before this Tribunal by

¶161

15.07.2025 .

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