W.P.(C) No.8797 OF 2004 & O.J.C. No.6721 OF 1999. Case: 1.Tapan Kumar Das, 2.Shri Prasant Kumar Das Vs 1.Commissioner, Cuttack Municipal Corporation, and Others, 2.State of Orissa & others. High Court of Orissa (India)
| Case Number | W.P.(C) No.8797 OF 2004 & O.J.C. No.6721 OF 1999 |
| Counsel | For Appellant: Shri G.A.R. Dora, Sr. Adv., Smt.G.Rani Dora & Shri J. K. Lenka, Advocates Shri P. R. Dash (Amicus Curiae) and For Respondent: Shri Sisir Das, Addl. Govt. Advocate Shri Pradipta Mohanty Shri Dayananda Mohapatra Shri J. Patnaik, Sr. Advocate, Shri B. Mohanty Shri P.K.Rath, Advocates |
| Judges | B. P. Das & M. M. Das, JJ. |
| Issue | Orissa Land Reforms Act - Section 8(A); Constitution of India - Articles 226, 227 |
| Judgement Date | October 11, 2012 |
| Court | High Court of Orissa (India) |
Judgment:
B. P. Das, J.
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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 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.
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.
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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.
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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.
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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 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.
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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...
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