The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 22622 of 2022 Maa Mangala Temple and Kalyan Mandap Managing Committee, Berhamur, Ganjam & Ors. ..…... Petitioners Mr. S.P. Mishra, Sr. Adv. along with associate -Versus- Union of India & Ors. …… Opposite Parties Mr. S.B. Panda, CGC (for O.P.1) Mr. G.R. Mohapatra, ASC (for O.P.Nos.1 to 5, 8 to 11, 13 to 15 & 17) Mr. B.P. Das, Adv. (for O.P.18) Mr. S. Senapati, Adv. (for O.P.18) Mr. Ramesh Sahoo, Adv. (for O.P.16) CORAM: DR. JUSTICE S.K. PANIGRAHI ORDER 21.03.2024 Order No. 03. 1. This matter is taken up through hybrid arrangement.
Legal Reasoning
2. Heard learned counsel for the parties. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 28-Mar-2024 19:06:37 3. In filing this Writ Petition, the Petitioners have challenged the Judgment dated 03.08.2022 passed by the learned National Green Tribunal, Eastern Zone Bench, Kolkata in 2 Original Application No.106/2021/EZ, wherein the leaned Tribunal directed the Opposite Party No.14/The Collector, Ganjam to demolish Maa Mangala Temple within one month and restore the land as ‘Jalasaya’. 4. Learned counsel for the Petitioners submits that the Petitioner No.1 is the managing committee of Maa Mangala Temple and Kalyan Mandap. The Petitioner Nos.2 to 11 are members of the said committee. The Opposite Party No.18 had filed O.A. No. 106/2021/EZ before the learned National Green Tribunal, Eastern Bench, Kolkata for removal of illegal construction/obstruction caused by the State Authorities as well as private persons in the Ecological Sensitive Zone i.e. Agula Bandha (Common Water Bodies) and its embankments situated at Gosaninuagaon under Berhampur, Ganjam, Odisha. All the parties to the present Writ Petition were arrayed as Opposite Parties to the said proceeding. But, the Petitioner No.1 was not made a party to the proceeding before the learned Tribunal. The Opposite Parties to the O.A. filed their respective counter affidavits to substantiate their case. The Opposite Party No.14 pleaded before the learned Tribunal that land in dispute has already lost its original characteristics as 'Jalasaya' which was de-reserved and classified as 'Patita'. After such de-reservation and conversion Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 28-Mar-2024 19:06:37 3 of kissam, construction of Ray Projects, Police Station, Temple etc. were made over such plots. In his affidavit, Opposite Party No.14 stated that one Maa Mangala Temple is constructed over Plot No.1509/2918 over an area of Ac. 0.012dec and the kissam of the land is patita. 5. Learned counsel for the Petitioners further submits that after hearing the parties, the learned Tribunal observed that where the ‘Jalasaya’ has been degraded it can be de-classified. Further, if at all there is illegal possession and regularization of such illegal possession, it should only be permitted in those cases as mentioned in Paragraph 22 of the Supreme Court in Jagpal Singh and Ors. Vrs. State of Punjab and Ors.1 including public utility on the land. Therefore, the buildings which have been constructed for public utility, even if illegal, can be regularized. However, while observing so, the learned Tribunal also observed that Maa Mangala Temple which has been constructed over Plot No.1509/2918 measuring an area of 0.012Ac. is not a public utility building and cannot be permitted on a specious plea that ‘Jalasaya’ has lost its characteristics.
Legal Reasoning
6. Learned counsel for the Petitioners further argues that the learned Tribunal, without affording an opportunity of Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 28-Mar-2024 19:06:37 1 Decided on 28th January, 2011 in Civil Appeal No.1132/2011 @ SLP(C) No.3109 of 2011 4 hearing to the Petitioners and without directing the Applicant in the O.A. to implead the temple/Deity as a party, directed the Opposite Party No.14/The Collector, Ganjam to demolish the temple from Plot No.1509/2918 within one month and restore the said land as 'Jalasaya' and file compliance affidavit by 08.09.2022. 7. Learned counsel for the State/Opposite Party Nos.8,10,13,14 and 15 submits that the Respondent No.14 pleaded before the learned Tribunal that land in dispute has already lost its original characteristics as ‘Jalasaya’ and, therefore, the said lands were de-reserved and classified as ‘Patita’. After such de-reservation and conversion of kissam, construction of Ray Projects, Police Station, Temple etc. were made over such plots. It was mentioned that there is plot wise construction wherein, one Maa Mangala Temple is constructed over Plot No.1509/2918 over an area of Ac.0.012 which comes under the category of “Homestead” land. He further submits that at present only 6.860 acres of land in Plot No.1509, Khata No.1375 is existing as water body in Agula Bandha which has been preserved and encroachments have been removed from Agala Bandha. Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 28-Mar-2024 19:06:37 8. Learned counsel for the State further contends that the learned Tribunal had observed that where the ‘Jalasaya’ has 5 been degraded it can be de-classified and further if at all there is illegal possession regularization of such illegal possession should only be permitted in those cases where the building concerned are being used as “Public Utility” buildings. Therefore, the buildings which are constructed for public utility can be regularized. The learned Tribunal also observed that Maa Mangala Temple which has been constructed over Plot No.1509/2918 measuring an area of 0.012 Ac. is not a public utility building and cannot be permitted on a specious plea that ‘Jalasaya’ has lost its characteristic. 9. Learned counsel for the State further submits that the learned Tribunal directed the State to re-create a water body of the same size and depth as Agula Bandha as possible close to Agula Bandha water body. Therefore, all the structure and construction raised on the concerned land were allowed to remain as it is and in lieu of that another patch of land is to be created. 10. Learned counsel for the Opposite Party No.18 submits that the Petitioners are not taking care of the Maa Mangala Temple and Kalyan Mandap. He further submits that there is no official record available which shows that the Petitioners are committee members of the Temple and Kalyan Mandap. None of the Petitioners had claimed on behalf of the Temple Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 28-Mar-2024 19:06:37 6 and Kalyan Mandap before the learned Tribunal. The State/Respondents were also remained silent before the learned Tribunal and they have not disclosed the names of the present Petitioners while hearing and disposal of the O.A. No.106 of 2021/EZ. He further submits that the Petitioners have suppressed the material facts and have not approached this Court in clean hands. Hence, the Writ Petition may be dismissed in limine with cost. 11. On perusal of the impugned order and considering the facts and circumstances of the case and the submission made by learned counsel for the Petitioners, this Court is of the view that the contention raised by the learned counsel for the Petitioners does not appear to be unfounded. 12. Considering the submission made by the learned counsel for the Petitioners and considering the factual and legal aspects of the case, this Court finds that the learned National Green Tribunal has violated the principles of natural justice by not affording the Petitioners an opportunity of hearing. In such view of the matter, while setting aside the impugned order dated 03.08.2022 under Annexure-4, this Court remits the matter back to the learned National Green Tribunal, Eastern Zone Bench, Kolkata for adjudication of the issue afresh. It is also made clear that the learned National Green Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 28-Mar-2024 19:06:37 7 Tribunal, Eastern Zone Bench, Kolkata shall afford the Petitioners a reasonable opportunity of hearing first and thereafter, pass order in accordance with law.
Decision
13. This Writ Petition is accordingly, disposed of. Judge ( Dr. S.K. Panigrahi) Murmu Signature Not Verified Digitally Signed Signed by: LITARAM MURMU Reason: Authentication Location: High Court of Orissa Cuttack Date: 28-Mar-2024 19:06:37