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The Tripura Land Revenue And Land Reforms Act, 1960 No. 43 Of 1960
Article 51A in The Constitution Of India 1949
M.C. Mehta vs Union Of India & Ors on 13 April, 2006
Intellectuals Forum, Tirupathi vs State Of A.P. & Ors on 23 February, 2006
Krishnan And Another vs State Of Kerala on 2 September, 1996

Orissa High Court
Shri Prasant Kumar Das vs The State Of Orissa & Others on 11 October, 2012

HIGH COURT OF ORISSA,

CUTTACK

W.P.(C) No.8797 OF 2004 & O.J.C. No.6721 OF 1999

In the matter of applications under Articles 226 and 227 of the Constitution of India. _______

In W.P.(C) No.8797 OF 2004

Tapan Kumar Das ......... Petitioner

-versus-

Commissioner, Cuttack Municipal Corporation,

and others ......... Opp. Parties

For Petitioner : Shri G.A.R. Dora,

Senior Advocate,

Smt.G.Rani Dora &

Shri J. K. Lenka, Advocates

Shri P. R. Dash (Amicus Curiae)

For Opp.Parties : Shri Sisir Das,

Addl. Govt. Advocate (O.Ps 2 & 5),

Shri Pradipta Mohanty (O.P. 1),

Shri Dayananda Mohapatra (O.P. 4),

Shri J. Patnaik, Sr. Advocate,

Shri B. Mohanty (O.Ps.3 & 6) and

Shri P.K.Rath (O.P.7), Advocates.

_________

In O.J.C. No.6721 of 1999

Shri Prasant Kumar Das ......... Petitioner

-versus-

The State of Orissa & others ......... Opp. Parties

For Petitioner : Shri P. R. Dash, ( Amicus Curiae )

For Opp.Parties : Shri Sisir Das, Addl. Govt. Advocate, Shri S. K. Nayak, Sr. Advocate,

Shri Dayananda Mohapatra,

Shri G. P. Mohanty & Shri K. N. Jena,

Advocates

_________

2

THE HON'BLE SHRI JUSTICE B. P. DAS

AND

THE HON'BLE SHRI JUSTICE M. M. DAS

Date of Judgment : October 11 , 2012

B. P. Das, J. Petitioner-Tapan Kumar Das, since dead, claiming himself to be the

Secretary of Kazibazar Adipitha Puja Committee, and a public spirited citizen and

concerned with the welfare of the locality, filed W.P. (C) No.8797 of 2004 in the

nature of public interest litigation for a direction to the Cuttack Municipal

Corporation to stop release of foul smelling septic tank and drainage water to the

street. His main allegation was that water logging and release of foul smelling

septic tank and drainage water to the street are causing pollution hazards in the

locality mainly due to filling up of a portion of a big tank located behind the Amala

Club at Kazibazar on Hal plot no.537 under Hal Khata no.195 in Cuttack Town,

Unit No.14, with an area of Ac.3.182, by a builder, who has purchased the same

and has carved out housing plots with a view to sell the same to different persons.

According to the petitioner, generally rain-water as well as the domestic waste

water from the houses in the surrounding area is discharged to the aforesaid tank.

Because of filling up of the said tank, the entire area has been flooded with filthy

water from drains and septic tanks causing health hazards and the residents of

that area are neither able to move out from their houses nor remain inside due to

the foul smell emitted from such stagnated filthy water. That apart, the students of

the schools located in and around that area are facing immense difficulties during

rainy season to attend their schools due to water logging. It has also been alleged

that the State Govt. and the Cuttack Municipal Corporation (CMC) have illegally

granted permission to fill up the aforesaid water body and have not made any 3

arrangement for the due discharge of such water. Therefore, a prayer has been

made to direct the authorities of the State Govt. as well as the CMC to ensure that

the domestic waste water discharged from the surrounding houses does not flow to

the street and alternative arrangement is made for discharge of such water.

This Court by its order dated 15.10.2004 allowed impletion of the

Tahasildar, Sadar, Cuttack, and certain private individuals as opposite parties and

issued notice to the said parties. On going through the copy of the report of the

Municipal Commissioner of the CMC submitted to the Registrar, Orissa Human

Rights Commission, on the self-same grievance, which was produced by the

learned counsel for the CMC for perusal of the Court, and considering the facts

and circumstances of the case, this Court while requiring the Collector and the

Tahasildar to produce the relevant records pertaining to the aforesaid tank directed

maintenance of status quo in respect of the tank in question. That apart, the

Cuttack Development Authority (CDA) was directed not to grant any permission for

construction of house on the aforesaid plot without leave of the Court and to

publish a notice to that effect in the newspapers. The authorities of the CMC and

the CDA were also directed to take appropriate steps against the persons

responsible for causing nuisance in the locality by initiating criminal proceedings in

accordance with law. Direction was also given not to fill up the tank on the

aforesaid plot by sand or otherwise either by opposite parties 3, 6 and 7 or any

other person or agencies. The CMC was also directed to take effective steps and

ensure that hygienic condition is maintained in the locality to prevent epidemic

which was apprehended by the local residents.

4

During pendency of the writ application, the petitioner died and this

being a public interest litigation, Shri P. R. Dash, a member of this Bar, was

allowed to pursue the writ application.

2. When the aforesaid W.P. (C) No.8797/2004 was pending, on 8.4.2005

this Court considering the submission made at the Bar in the on-going public

interest litigation relating to Cuttack City, i.e., O.J.C. No.6721/1999, that during last

five years big tanks in the city, which were recorded as Jalasaya/tanks in the

Records of Rights, were rapidly being filled up and converted to homestead without

effecting any change in the classification of the lands in the revenue records and

without obtaining permission from the competent authority, and that the CDA

without following the provisions of the building regulations and properly examining

the matters has been permitting constructions on such lands for some obvious

reason, passed order for maintenance of status quo as existed on that date in

respect of the tanks recorded as such in the RORs and called upon the Collector,

Cuttack, to furnish list of tanks recorded as such in the RORs and available in

Cuttack City, the number of such tanks in existence and the number of tanks filled

up. He was also directed to indicate whether for change of classification of the

lands from tanks to homestead, any permission is required and, if so, whether such

permission has been accorded. The District Administration including the Police

Administration was directed to ensure compliance of the order of status quo.

Thereafter by order dated 15.4.2005 the Tahasildar, Sadar, Cuttack, was directed

to furnish a report to the Superintendent of Police, Cuttack, indicating if the work of

filling up of Jalasayas/Tanks is being done and/or any construction is being made

thereon.

5

3. Since the grievance ventilated by the learned members at the Bar in

the on-going public interest litigation, i.e., O.J.C. No.6721/1999, regarding illegal

filling up of large number of water bodies/tanks in the city and construction of

buildings thereon for human settlements without changing the classification of the

lands to homestead and the allegation made in W.P.(C) No.8797/2004 regarding

filling up of the tank in Kazibazar were common, both the writ applications were

heard together to examine the question whether the filling up of the water

bodies/tanks classified as 'Jalasayas' in the revenue records without changing the

classification to homestead, is legal and justified and whether the water

bodies/tanks, which are the natural water storage resources in the city, are

required to be preserved, protected and maintained for the purpose of re-charging

of water and for improving the underground water level and also for providing

drainage during high rain falls in order to save the city from water-logging and with

a view to maintain ecological balance keeping in view the rapid increase in the

density of population day-by-day so also the pressure on lands for human

habitation.

4. So far as tanks are concerned, the age-old method of irrigation by

tanks, as prevailed in ancient India, continued as a predominant mode of irrigation

almost till our independence. Every village had at least one community tank,

Zamindars possessed privately-owned tanks. No temple was conceived without a

tank. Private tanks and tanks belonging to temples were zealously guarded. But in

post-independence days, such disciplined use and maintenance of community

tanks have disappeared totally and the tanks got neglected and finally became

unusable and ultimately got converted into virtual swamps. Tanks are useful for

recharging of wells and for providing drainage during high rain-falls. Cuttack, the 6

premier town of Orissa, today gets seriously water-logged even with 5-6 cm of rain

because almost all the ponds and most of the low-lying areas have been reclaimed

for habitation. This is the observation made in the Report on State of Environment

in Orissa-I (Water Resources) prepared by Dr. R. C. Das, Chairman of then State

(Prevention and Control of Pollution) Board, now State Pollution Control Board,

Odisha.

5. Before examining the aforesaid question, it would be appropriate to

indicate herein the topography of Cuttack City, which is situated between two

rivers, namely, Mahanadi and its tributary Kathajodi. In this regard we think it

proper to quote hereinbelow the observations made about Cuttack City in the book

titled "Memoirs of a Bengal Civilian" written by John Beames, who was the

Magistrate and Collector of Cuttack and was also the Commissioner of the Orissa

Division comprising Balasore, Cuttack and Puri from 1873 to 1875 :

"This great city of Cuttack, the capital of a large and isolated province, was a curious study. So many little worlds lived side by side, understanding each other very imperfectly, disliking each other often very heartily, and yet all dwelling peaceably on the whole under the strong hand of British law and order. Its situation was peculiar and, in many respect, inconvenient. The Mahanadi, an immense river more than two miles broad, issues from the hills and divides into two great streams, which in their turn divide lower down into several others, so that all this part of Central Orissa is, in fact, the delta of the Mahanadi, a triangle, each of whose sides is about a hundred miles in length. At the apex of this triangle, which points to the west, lies the city. The site was in fact chosen for purposes of defence by the King of Orissa in the sixteenth century when his country was invaded by the Mohommedans. He left his former capital Chaudwar (Chaudwar = four gates ), the ruins of which are still visible on the northern bank of the river, and pitched his 'camp' (in Sanskrit and Oriya, Kataka) between the two sheltering arms of the mighty river. Here he built a great fortress called Barobati which still stands, though in ruins, and the rest of the apex was occupied by the houses of the townspeople."

7

Cuttack is one of the oldest cities in the country. Established in 989

AD, Cuttack was the seat of Government of Orissa for close to a thousand years

before its burgeoning size forced the creation of a new capital at Bhubaneswar in

1948. The city is now popularly called as 'Millennium City'. Being a very old city, it

has very little scope for expansion and off late it became the victim of unauthorized

encroachers and mushroom growth of unauthorized religious institutions on public

roads/public places so also unauthorized encroachment of public roads by

adjacent land owners. Even the lands along the banks of Mahanadi and Kathajodi

rivers, which belong to the State Govt. as well as the lands earmarked for different

developmental projects including housing projects of the C.D.A., have not been

spared from encroachment. The existing drainage system in the city, which runs in

a serpentine manner through its lanes and by-lanes, has served the city for more

than 150 years but there was no improvement to the same excepting bare

maintenance and desiltation by the civic body because of large scale

encroachment of Govt. lands made on both sides of the main storm water

channels which was ultimately removed in 1999 with the intervention of this Court

to facilitate proper desiltation and improvement. The mushroom growth of

encroachments, which remain as before, are possible due to lack of vigil on the

part of the revenue authorities and with the connivance of such authorities, who

have allowed encroachments of Govt. lands on both sides of the main storm water

channels, which were also made encroachment-free. Rapid growth of population in

the city and rise in the demand for land and construction of multi-storied buildings

have led to disappearance of tanks, which were being used as the means to

accommodate the excess rain water in the city and to lessen the pressure from the

existing dilapidated and old drains. That apart, Cuttack city being a traditional town, 8

the tanks/water bodies were being used as bathing places and some times as the

places for recreation and refreshment until the unscrupulous builders' lust for land

targeted the water bodies and started filling up of the same with the connivance of

certain revenue authorities, who have no love and lust for the future development

of the city and its citizen except their personal benefits.

6. Learned counsel for the petitioners alleged that Cuttack, which is the

premier city of Odisha, very often gets seriously water-logged and drainage

problem crops up even during small rain-falls because large number of big water

bodies/tanks, which were used as storage of rain-water and were otherwise

providing drainage during high rain-falls and were also used for re-charge of

ground water, have been reclaimed and converted by private individuals into

residential areas for human habitation as well as builders for commercial use. It

was also alleged that due to water-logging, the capacity of the main storm water

channels being not adequate for discharge of the accumulated water, the people of

the city are made to face numerous problems arising therefrom including health

hazards, like water-born diseases. The existing old drainage system in the city has

not been improved and there is very little scope for improvement of such system.

7. It may be stated at the cost of repetition that this Court by its order

dated 8.4.2005 passed in O.J.C. No.6721/1999 called upon the Collector, Cuttack,

to furnish a list of tanks recorded as such in the RORs and as to how many of such

tanks are in existence and how many of them have been filled up. The Collector

was also required to indicate whether for change of classification of the land

recorded as Jalasaya to homestead, any permission is required and if so whether

such permission has been accorded. This Court also directed for maintenance of

status quo as on that date in respect of the tanks recorded as Jalasayas in the 9

RORs. The District Administration including the Police Administration was directed

to ensure compliance of the order of status quo. From the order dated 29.4.2005 it

appears that this Court took a serious note of the fact that the Tahasildar applying

section 8A of the Orissa Land Reforms Act had permitted conversion of tanks to

homestead in the city area. As the same was a matter of grave concern for the

State and the public at large, this Court called upon the Secretary to Govt. in

Revenue Department to appear in Court in person along with the Tahasildar for

clarification. On 18.5.2005 the Secretary, Revenue Department, appearing before

this Court along with the A.D.M. and the Tahasildar, Sadar, Cuttack, disclosed that

some private tanks in the city, which had no utility, have been filled up and

converted to homestead lands. He, however, stated that section 8A of the O.L.R.

Act is not applicable for change of classification of the lands for which necessary

clarification in this regard has already been issued by the Revenue Department to

the Tahasildars in the State. He further stated that there are certain tanks in the

city which are being used by the general public and those tanks are necessary to

be maintained for public use. Considering the aforesaid facts, the Secretary,

Revenue Department, was directed to inform this Court after consulting the

Housing and Urban Development Department the number of tanks/Jalasayas

existing in the city, be it public or private, and are actually required for public use

and necessary to be maintained as such. In terms of the aforesaid order, the

Revenue Department in consultation with the H. & U.D. Department formulated a

scheme for protection and proper utilization of 73 tanks out of which 26 belonged

to Govt. and rest 47 belonged to private persons and the High Power Committee

constituted under the chairmanship of the Principal Secretary, Revenue

Department, with the Director of Municipal Administration, Commissioner, CMC, 10

Vice-Chairman, CDA, Collector, Cuttack, Tahasildar, Sadar, Cuttack, and certain

other officials as members, decided as follows :

(I ) The Collector, Cuttack, in consultation with CMC and CDA will formulate scheme in respect of each used tank and submit report to Govt.

(ii) Govt. tanks should be handed over to CMC as well as CDA for use and proper maintenance.

(iii) The CMC shall insist the owners for proper maintenance of private tanks.

(iv) In case the private tanks or Govt. tanks lost its characteristics, action should be initiated by the Tahasildar for change of classification of the Tank/Jalasayas under rule 34(e) of Orissa Survey & Settlement Rules, The private land owners shall be asked to submit the proposal to Tahasildar accordingly.

Despite the aforesaid order, during pendency of this proceedings,

certain persons in connivance with some subordinate revenue authorities tried to

fill up their tanks violating the order of status quo for which this Court by its order

dated 18.4.2007 directed the Committee constituted under the chairmanship of the

R.D.C. (CD) for the purpose of eviction and demolition to look into the aforesaid

aspect and submit a report as to the procedure and method that would be adopted

for maximum utilization of private and Govt. tanks and also to inform whether the

tanks which are useful in nature and have been filled up can be retrieved by the

Govt. In terms of the aforesaid direction, the RDC convened a meeting of the

Committee constituted under his chairmanship on 30.4.2007 wherein the following

decisions were taken :

(i) The Collector, Cuttack is instructed to obtain a comparative report based on satellite picture between 1990 and 2006 so as to find out the water-bodies which has been filled up in the meantime. Thereafter, a detailed field check will be made to find out if such filling has been done with

permission of competent authority and with proper building plan.

(ii) The CDA authority is instructed to report within 7 days as to how many unauthorized buildings/structures are 11

constructed over Jalasaya Kisam of land without obtaining approval of CDA.

(iii) Action would be initiated against unauthorized buildings/structures constructed over Jalasaya Kisam of land without approval of building plan.

(iv) The Collector, Cuttack is instructed to expedite handing over of possession of remaining tanks to the C.M.C., Cuttack as per Government decision.

(v) The C.M.C. authority is instructed to submit plan for proper maintenance of Jalasayas handed over to them by

Revenue Department.

(vi) The C.M.C. authority is also instructed to issue notice to private tank owners as per provisions of the Municipal Act for proper upkeep of the tanks.

(vii) The CDA and CMC authorities will issue public advertisement immediately on non-approval of building plan of Jalasaya Kisam of land and warn general public on this, so that they do not purchase or sell such land for

homestead purpose.

Thereafter in terms of the order dated 18.4.2007 passed in O.J.C.

No.6721/1999, the R.D.C. (C.D.), Cuttack, by letter no.1246/General & Judl. dated

31.8.2007/1.9.2007 furnished report on verification of Tanks/Jalasayas on the

basis of satellite maps of the years 1990 and 2006 obtained from the Orissa

Remote Sensing Application Centre (ORSAC) and the subsequent field

verification. It would be appropriate to quote hereinbelow the aforesaid report of

the R.D.C. :

"In compliance to the order of the Hon'ble High Court datged 18.04.2007 in OJC No.6721/1999, the Committee constituted under Chairmanship of Revenue Divisional Commissioner, Central Division, for the purpose of eviction and demolition was asked to report on the following :

i) Details of tanks/Water-bodies existing as on date in Cuttack City; ii) Details of tanks/water-bodies filled up in the recent past; iii) Whether such tanks are required to be maintained; iv) Whether the tanks already filled up and are lying fallow can be retrieved.

In pursuance to the order of the Hon'ble High Court, the Committee met several times and modalities were finalized to comply order of the Hon'ble High Court. It was decided to get information on tanks by using satellite map from Orissa Remote Sensing Application Centre for the year 1990 and 2006. 12

Further, it was decided to verify all the tanks in the field by using Revenue field staff to get accurate picture on the issue.

As per the report of the ORSAC for the year 1990, there were 424 tanks, ponds etc. and 146 water logged and swampy areas in Cuttack City. The satellite map is enclosed as Annexure-1. This list does not include very small water-bodies. In the satellite picture of 2006, it is reported that there are 245 number of tanks/water-bodies and 66 waterlogged swampy areas in Cuttack City. The map is enclosed as Annexure-2. This list also does not include very small water-bodies, which are difficult to locate from the satellite picture. The Tahasildar, Cuttack was requested to make 100% field verification to find out the present position along with ownership, area and classification of such water-bodies which existed in 1990 and also water-bodies existed in 2006 as per the satellite picture maps and also to find out additional water-bodies if any in the field which has escaped ORSAC report. Against a list of 245 tanks/water-bodies as reported from the satellite picture of 2006, the Tahasildar has located 65 additional tanks / water-bodies during field verification. Total number of tanks existing as on the date is 310. The detailed break up of 478 tanks/ water-bodies obtained on superimposition of 1990 and 2006 maps are given below :

Total No. of Total no. of Total no. of No.of Jalasayas/ Water bodies Total no. of Jalasayas/ Govt. Private Jalasayas/ filled up as per physical Water bodies existing at Jalasayas/ Tanks/ Water bodies verification. present Water bodies Jalasayas/

in Cuttack Govt. Private Total Govt. Private Total Water bodies

City

1 2 3 4 5 6 7 8 9

88 390 478 9 159 168 79 231 310

(126 Fully filled up )

+

(33 Partly filled up )

A detailed report on all 478 number of tanks as submitted by Tahasildar, Cuttack Sadar is enclosed as Annexure-3. A map of super imposition between 1990 and 2006 satellite pictures submitted by Tahasildar, Cuttack is enclosed as Annexure-4. The present position in respect of 310 tanks out of 478 verified is shown as Jalasayas/ water-bodies as per field verification reflected in Col.8 of Annexure-3.

The Committee felt that all the tanks/ water-bodies available physically in Cuttack City should be preserved for future use irrespective of their classification as the water-bodies act as rainwater storage during heavy rainfall. They also help in recharging ground water on which entire Cuttack City depends for drinking water purpose. The swampy water logged areas available at present as per 2006 satellite report are under detailed verification by the Tahasildar, Cuttack. The swampy water logged areas also act as storage for rainwater and also help in recharging ground water. Hence, these areas should also be protected for future irrespective of their classification. The tanks which have already been filled up, but construction activity has not been taken up, should be kept as such so that it can be used for water seepage and for improving subsoil water level. It will be practically difficult 13

to retrieve those filled up tanks and excavate ponds again. As reported, the Cuttack Development Authority is not approving any building plan over Jalasaya kissam of land since 2001. Tahasildar is also not allowing conversion of Jalasaya kissam of land in obedience to the Hon'ble High Court's status-quo order passed in 2005. 310 numbers of Tanks/ Jalasayas physically available in Cuttack City as identified by the Tahasildar, Cuttack and through satellite picture may be preserved as such. If there is any other land having Jalasaya kissam which have lost its characteristic in Cuttack City, the Tahasildar, Cuttack may be allowed to change the classification after detailed field enquiry. It has been reported by the Cuttack Development Authority that 482 cases of unauthorized construction over Jalasaya kissam of land have been detected by them and 165 number of unauthorized construction cases have been booked. The C.D.A. has been advised to go ahead with demolition work of unauthorized construction cases without approval of plan on filled up tank/pond areas."

Thereafter the Commissioner-cum-Secretary, H.& U.D. Department,

filed an affidavit explaining the steps taken for maintenance of private water bodies

by the Govt. along with the minutes of the meeting held on 3.7.2008 and the

decisions taken in the said meeting, as indicated in paragraphs 3, 4 and 5 of the

minutes, are extracted hereunder :

"(3) A team comprising representatives of the Revenue Departrment and the Cuttack Municipal Corporation would identify the Private Water Bodies being used by the

community which are feasible to be acquired and

maintained by the CMC.

(4) The public of the Cuttack City have been made aware by the CMC to refrain from converting the lands

characterized as Water Bodies to other purposes in

compliance with the orders of the Hon'ble High Court. The matter would be taken up for enforcement by the Cuttack Development Authority and Cuttack Municipal

Corporation.

(5) The Revenue Authority would intimate the approximate value of the area under the major private tanks to the H & UD Department so as to take Government orders and

financial concurrence on acquiring the land in compliance of the orders of the Hon'ble High Court."

By order dated 9.7.2008 this Court directed compliance of the

decisions taken in the aforesaid meeting, more specifically the decision indicated in 14

paragraph 5, as quoted above. On behalf of the Commissioner-cum-Secretary, H.&

U.D. Department, the Under Secretary of the Department filed an affidavit dated

11.12.2008 indicating that in compliance of the direction of this Court dated

9.7.2008 the Department had convened a meeting of all concerned and instructed

the CMC and the Revenue Authorities to assess the requirement of acquisition of

ponds in the city and accordingly the Collector and District Magistrate, Cuttack, by

letter no.805/Res. dated 7.8.2008 addressed to the Commissioner-cum-Secretary,

H.& U.D. Department furnished a list of 66 big tanks (Jalasayas) with an area of

Ac.46.200 as per satellite map. The approximate value of the aforesaid tanks was

indicated to be Rs.52,86,71,250/- as per the benc-hmark valuation of the

scheduled land. In paragraphs 6 and 7 of the aforesaid affidavit it was further

disclosed thus :

"6. That it is humbly submitted that the Planning & Co-Ordination Department after careful consideration of proposal, have observed that .....'mere acquisition of Jalasayas is not enough. There should be proper use of these water bodies. The H&UD Department should draw up a scheme in consultation with experts to develop and maintain these Jalasayas. The concern of the Hon'ble High Court is to protect the ecology of Cuttack City. .....'

7. That, for kind appreciation of the Hon'ble Court, it is humbly submitted that the Housing & Urban Development Department, as per the views of the Government in Planning & Co-ordination Department, would take up steps for study and consultation of an expert agency for this purpose, like National Environmental Engineering Research Institute (NEERI), Nagpur and on receipt of a study report, the requisite action would be followed up in compliance to the orders of the Hon'ble Court."

Thereafter the Principal Secretary, H.& U.D. Department, in compliance of the

order of this Court dated 5.5.2010 filed affidavit dated 18.5.2010 regarding

acquisition of private Jalasayas and maintenance of Govt. ponds in Cuttack City. It 15

would be appropriate to extract hereunder the statements made in paragraphs 1 to

6 of the said affidavit :

"1. That the Hon'ble High Court vide their order dated 05.05.2010 have directed the Principal Secretary, Housing & Urban Development Department to file an affidavit stating the details of acquisition of private Jalasayas in Cuttack City and maintenance of Govt. ponds for retention of underground water.

2. That it is humbly submitted that on receipt of communication dated 06.05.2010 from the State Counsel, Govt. in Housing & Urban Development Department requested the Municipal Commissioner, Cuttack Municipal Corporation in letter No.10453/HUD dt.06.05.2010 to furnish the list of private Jalasayas to be acquired on the basis of the report of the 'Advocates' Committee' along with the estimate of the fund for acquisition and preservation of such water bodies.

3. That it is respectfully submitted that in response to the aforesaid communication Cuttack Municipal Corporation furnished the proposal on the basis of the 'Advocates' Committee' Report for acquisition of water bodies with tentative estimate for their renovation and maintenance. Copy of the aforesaid proposals along with Advocates' Committee Report is annexed here as ANNEXURE - E/1.

4. That for the appreciation of the Hon'ble Court, it is humbly submitted that Govt. order have already been obtained for acquisition of 4 (four) numbers of 'Jalasayas' in Cuttack City, spreading over an area of Ac.2.741 Dec. at different locations as recommended by the Advocates' Committee.

5. That it is humbly submitted that since the tentative cost of such acquisition of land would be about Rs.404.00 lakh and estimated cost for preservation and renovation of such tanks would be Rs.34.98 lakh, accordingly, for making necessary provision of funds in the current year Budge Estimate, 2010-11, the file was moved to the Planning & Coordination Deptt. for their concurrence. In the meantime, P. & C. Deptt. have concurred the proposal in principle. Now steps are being taken by the Housing & Urban Development Department for obtaining approval of Finance Deptt. for provisions of the required funds for such acquisition and conservation.

6. That as regards maintenance of ponds over Govt. land, it is humbly submitted that conservation of eight (8) numbers of Jalasayas in Govt. land have been taken up by the Cuttack Municipal Corporation under UIDSSMT Scheme. Rs.533.66 lakh have been sanctioned under the scheme and Cuttack Municipal 16

Corporation have so far utilized Rs.278.944 lakh for the purpose as reported by the Municipal Commissioner, Cuttack Municipal Corporation. Besides that during the year 2009-10, Govt. have sanctioned Rs.40.00 lakh for protection and conservation of water bodies/Jalasayas existing over Govt. land."

8. From the aforesaid affidavit it clearly appears that the State Govt.

has agreed to acquire 4 private Jalasayas in the city for which the Planning &

Co-ordination Department has concurred the proposal and H.& U.D.

Department has taken step for obtaining approval of the Finance Department

for provision of required funds for acquisition and conservation of such tanks.

As to maintenance of Govt. tanks, proposal for conservation of 8 Jalasayas

had been taken up by the CMC under the UIDSSMT Scheme and Rs.533.66

lakhs have been sanctioned under the said Scheme and the CMC has utilized

about Rs.278 lakhs for the purpose till that date. That apart, the State Govt.

had also sanctioned Rs.40.00 lakhs for protection and conservation of water

bodies/Jalasayas existing over Govt. land.

It also appears that no study report of the NEERI has been

produced by the H.& U.D. Department as indicated in the affidavit dated

11.12.2008.

9. The Committee headed by the R.D.C. in the report dated 31.8.2007

has clearly opined that all the tanks/ water-bodies available physically in Cuttack

City should be preserved for future use irrespective of their classification as the

water-bodies act as rain-water storage during heavy rain-fall and also help in

recharging ground water on which entire Cuttack City depends for drinking water

purpose.

17

10. A tendency has now developed, and in the coming days there will be a

competition, to draw ground water which will bound to collapse the water based

ecological system leading to depletion of ground water level, which is going down

every year. The way we are destroying the natural water resources not only in

Cuttack City with which we are presently concerned but throughout the country

there will certainly be scarcity of water in future. We must remember the

fundamental truth that we are the only species in this vast web of life that no

animal or plant in nature depends on for its survival - yet we depend on this whole

web of life for our survival. We must remember that nature does not depend upon

human beings for its survival but human beings depend upon nature for their

survival. The world renowned author, Thomas L. Friedman, who has won the

Pulitzer Prize thrice being the author of the no.1 international bestseller - "The

World Is Flat", in his book titled "Hot, Flat and Crowded", while dealing with the

subjects why the world needs a green revolution and how we can renew our global

future, at page 153 has expressed thus :

"Mindlessly degrading the natural world the way we have been is no different than a bird degrading its own nest, a fox degrading its own den, a beaver degrading its own dam. We can't keep doing that and assume that it is just happening 'over there'. ...... .... Nature's bounty seemed infinite and all the threats to it either limited or reversible. In the Energy Climate Era, given the accelerating rates of extinction and development, 'later' is going to be removed from the dictionary. Later is no longer when you get to do all those things in nature you did as a kid - on your time schedule. Later is when they're gone - when you won't get to do any of them ever again. Later is too late, so whatever we are going to save we'd better start saving now."

It would not be out of place to excerpt the speech of a twelve-year-old

girl of Canada named Severn Suzuki delivered in the plenary session of the 1992

Earth Summit held in Rio de Janeiro of Brazil, which was attended by the 18

Environment Ministers from all over the world, who were listening to her every

word with rapt attention. According to Thomas L. Friedman, Suzuki's speech is one

of the most eloquent statements he has ever heard about both the strategic and

the moral purpose of a real green revolution at the dawn of the Energy-Climate Era

from anyone of any age.

"Hello, I'm Severn Suzuki, speaking for ECO-the

Environmental Children's Organization. We are a group of twelve- and thirteen-year-olds trying to make a difference: Vanessa Suttie, Morgan Geisler, Michelle Quigg and me. We raised all the money to come here five thousand miles to tell you adults you must change your ways. Coming up here today, I have no hidden agenda. I am fighting for my future. Losing my future is not like losing an election or a few points on the stock market. I am here to speak for all generations to come. I am here to speak on behalf of the starving children around the world whose cries go unheard. I am here to speak for the countless animals dying across this planet because they have nowhere left to go. I am afraid to go out in the sun now because of the holes in the ozone. I am afraid to breathe the air because I don't know what chemicals are in it. I used to go fishing in Vancouver, my home, with my dad until just a few years ago we found the fish full of cancers. And now we hear of animals and plants going extinct every day - vanishing for ever. In my life, I have dreamt of seeing the great herds of wild animals, jungles and rain forests full of birds and butterflies, but now I wonder if they will even exist for my children to see. Did you have to worry about these things when you were my age? All this is happening before our eyes and yet we act as if we have all the time we want and all the solutions. I'm only a child and I don't have all the solutions, but I want you to realize, neither do you....You don't know how to bring the salmon back up a dead stream. You don't know how to bring back an animal now extinct. And you can't bring back the forests that once grew where there is now desert. If you don't know how to fix it, please stop breaking it !"

(See Pages 395-396)

11. In this regard let us notice certain judicial pronouncements made by

various High Courts as well as the Supreme Court.

19

The Supreme Court unanimously held in Animal and Environment

Legal Defence Fund v. Union of India, (1997) 3 SCC 549 : AIR 1997 SC

1071; M.C.Mehta (Badkhal and Surajkund Lakes Matter) v. Union of

India, (1997) 3 SCC 715, and Intellectuals Forum v. State of A.P.,

(2006) 3 SCC 549, that the water bodies are required to be retained and such

requirement is envisaged not only in view of the fact that the right to water as also

quality life are envisaged under Article 21 of the Constitution of India, but also in

view of the fact that the same has been recognized in Articles 47 and 48-A thereof.

Article 51-A of the Constitution furthermore makes a fundamental duty of every

citizen to protect and improve the natural environment including forests, lakes,

rivers and wildlife. In L. Krishnan v. State of T.N., AIR 2005 Madras 311, a

Division Bench of Madras High Court had been dealing with the natural resources

providing for water storage facility and in that view of the matter the State was

directed to take all possible steps both preventive as also removal of unlawful

encroachments so as to maintain the ecological balance.

12. We are, therefore, of the view that there should be sustainable

development which means development that meets the needs of the present

generations without compromising the ability of the future generations to meet their

own needs. We are fully conscious of the necessity of development but the same

should not be made or done at the cost of elimination of the water bodies thereby

creating serious water-logging problem in the city during rainy season and pushing

the future generations to a situation of scarcity of water due to decrease in the

ground water level in the absence of harvesting of rain water in a city like Cuttack

to absorb the rain water / recharge of water resources / natural water resources, 20

such as ponds, tanks, water bodies so as to maintain ecological balance.

Therefore, the State Govt. cannot absolve its responsibility to protect and maintain

the water bodies even belonging to private individuals. There are also big tanks

which belong to various deities and private individuals in the city and the State

Govt. should come forward to protect and maintain the same also.

13. On going through the affidavit dated 18.5.2010 filed by the Principal

Secretary, H. & U.D. Department, indicating the steps taken for providing funds for

acquisition, renovation and maintenance of 4 numbers of private Jalasayas and 8

numbers of Jalasayas on Govt. lands in Cuttack City in the first phase as well as

the report of the Committee headed by the R.D.C. dated 31.8.2007, we are of the

view that the water-bodies/Jalasayas existing in the city need to be preserved and

protected and should not be allowed to be converted into homesteads. The

affidavit filed by the Secretary, H. & U.D. Department, also shows that the State

Govt. is very much alive to the situation regarding filling up of tanks/water-bodies

and change of classification of the same to homestead and they are concerned for

conservation of such tanks/water-bodies. We hope and trust that the State Govt.

would come forward to acquire more and more water-bodies in the city in the next

phases.

14. Considering the facts and circumstances of the case, for preservation

and conservation of tanks/water-bodies in Cuttack City, and to deal with such

tanks/water-bodies, we direct as follows :

(1) The State Govt. shall act upon the report dated 31.8.2007 submitted by

the R.D.C. (C.D.), Cuttack, and the affidavit dated 18.5.2010 filed by the Principal 21

Secretary to Govt., H.& U.D. Department, and shall ensure that the steps indicated

therein are taken within a period of two years from today.

(2) The R.D.C. (C.D.), Cuttack, under his chairmanship shall form a

Committee not exceeding seven members including the Vice-Chairman, C.D.A.,

Municipal Commissioner, CMC, Cuttack, and an Environmentalist of the State

Pollution Control Board, Odisha. Needless to say, the other members of the

Committee shall be nominated by the R.D.C. The Committee shall deal with the

protection, preservation and conservation of water-bodies in the city and shall take

decisions accordingly.

(3) The applications for change of classification/kissam of lands from

Jalasaya to homestead shall be processed through the Tahasildar, Sadar, Cuttack,

to the Collector for appropriate orders. The decision of the Collector shall be

placed before the Committee as constituted above for approval. Only after

approval of the Committee, change of classification/kissam of the land shall be

allowed. The Committee shall record the reasons for allowing change of

classification/kissam of such lands. However, if the Committee is of the opinion

that the lands, which have lost their character as Jalasaya, and those, which are

actually not Jalasayas or swampy lands but have been recorded as Jalasaya,

change of classification of such lands may be allowed. This shall be effective from

the date of the judgment.

(4) The Committee shall also make enquiry, if it is so necessary, to find

out whether classification of the lands recorded as Jalasayas has been changed by

orders of the Tahasildar during operation of the order of status quo passed by this

Court on 8.4.2005 in O.J.C. No.6721/1999. In case it is found that the classification 22

has been changed during continuance of the order of status quo, the same shall

be treated as non est in the eye of law.

15. For the aforesaid purpose, Cuttack City shall be construed to be the

old Cuttack City comprising the areas shown in the satellite maps of the ORSAC of

1990 and 2006, which have been annexed to the Report of the R.D.C. dated

31.8.2007. It will be open to the State Govt. to adopt the directions given in respect

of Cuttack City in the foregoing paragraph for other cities in the State.

16. W.P.(C) No.8797 of 2004 is disposed of with the directions and

observations made above. The grievance ventilated by the members of the Bar

regarding protection and preservation of Jalasayas in Cuttack City in O.J.C.

No.6721/1999 is set at rest with the foregoing directions and observations but the

said writ petition shall continue so far as other grievances are concerned.

17. Before parting with the records, we place on record our appreciation

for the able assistance rendered by Shri T. K. Mishra, former Chief Secretary, and

his successor Shri B. K. Patnaik, Shri Suresh Chandra Mohapatra and Shri P. K.

Mohapatra, former R.D.Cs. (C.D.), Cuttack, Shri A.K. Panda, former Secretary, H.

& U.D. Department, Shri B. K. Sharma, former Commissioner of Police,

Bhubaneswar-Cuttack, Shri Girish S.N., Collector and Distrrict Magistrate, Cuttack,

and Shri R. N. Nanda, former Vice-Chairman, C.D.A. and former Municipal

Commissioner, C.M.C., for the noble cause involved in the litigation agitated in

2004. We also place on record our appreciation for the assistance rendered by the

members of the Bar especially Shri G. P. Mohanty and Shri K. N. Jena, Members 23

of the Advocates' Committee, Shri P. R. Dash, Amicus Curiae, Shri S. K. Nayak,

Senior Advocate, for the C.M.C., Shri Sisir Das, Addl. Govt. Advocate, and Shri

Dayananda Mohapatra for the C.D.A..

J.

....................................

B. P. Das, J.

M. M. Das, J. I agree.

.

....................................

M. M. Das, J.

Orissa High Court, Cuttack.

October 11 , 2012/Chhatoi.