Tushar Kanti Das vs The State Of West Bengal
2023 Latest Caselaw 5763 Cal

                      In the High Court at Calcutta
                     Constitutional Writ Jurisdiction
                              Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                          WPA No. 18398 of 2023

                           Tushar Kanti Das
                                   Vs.
                        The State of West Bengal
                               and others

     For the petitioner         :    Mr. Anindya Lahiri,
                                     Mr. Arkadipta Sengupta,
                                     Mr. Sagnik Chatterjee,
                                     Mr. Subhajit Das

     For the State              :    Mr. Somnath Ganguli,
                                     Ms. Priyamvada Singh

     For the
     Pollution Control Board :       Mr. N.C. Bihani,
                                     Mr. Soumya Mukherjee

     For the
     Respondent nos.9 and 10:        Mr. Partha Sarathi Bhattacharya,

Ms. Sonal Sinha, Mr. Avishek Prasad

Hearing concluded on : 24.08.2023

Judgment on : 31.08.2023

Sabyasachi Bhattacharyya, J:-

1. The petitioner entered into a development agreement with a

developer. By virtue of the said agreement, a G+6 residential

building was to be constructed within three years from the date of

execution of the development agreement. However, in the month

of June, 2023, the petitioner learnt from his developer that the

District Magistrate, Malda, vide Memo No.118/0 dated April 20,

2023 had directed the District Registrar, Malda not to execute

any deed in respect of five mouzas in the English Bazar Police

Station, including the mouza where the petitioner‟s property is

situated. The petitioner further learnt that the said direction was

issued by the District Magistrate purportedly in compliance of an

Order dated March 22, 2023 passed by the National Green

Tribunal (NGT), Eastern Zone in OA 30/2023/EZ (Subhash Dutta

Vs. State of West Bengal and others). The present writ petition

has been filed against the said order of the District Magistrate,

seeking quashing of the same as well as the proceeding before the

NGT.

2. At the outset, learned counsel for the petitioner submits that

despite the availability of an appeal before the Supreme Court

under Section 22 of the National Green Tribunal Act, 2010

(hereinafter referred to as, "the 2010 Act"), the said remedy is not

an absolute bar to prefer a writ petition before this Court.

3. Learned counsel places reliance on a Division Bench judgment of

this Court dated November 28, 2022 in WPA (P) No.380 of 2022

and WPA (P) No.442 of 2022 [Arunava Ghosh Vs. The State of West

Bengal and others] where a Division Bench of this Court

permitted the petitioners to withdraw a public interest litigation

challenging a judgment of the NGT with liberty to file proper

petition under Article 226 or 227 raising personal grievance

before the appropriate Bench. In the said judgment, the Division

Bench placed reliance on Madhya Pradesh High Court Advocates

Bar Association and another Vs. Union of India and another,

reported at 2022 SCC OnLine SC 639. In the said judgment, it is

argued, the Supreme Court categorically laid down that the

remedy of direct appeal to the Supreme Court from the NGT

under Section 22 of the 2010 Act is not a bar to a challenge

before the High Courts under Article 226 of the Constitution.

4. Learned counsel for the petitioner next argues that the property-

in-question is not a water-body and has been marked as „Bagan‟,

that is orchard, in the records of right. Learned counsel places

reliance on the photocopies of relevant extracts of records of right

annexed to the writ petition to substantiate the same. It is

argued that even if the said property was a water-body, the NGT

would not have jurisdiction to entertain the dispute.

5. Learned counsel places reliance on Rules framed under relevant

provisions of the Environment (Protection) Act, 1986 (for short,

"1986 Act") and in supersession of Wetlands (Conservation and

Management) Rules, 2010 known as the Wetlands Conservation

and Management) Rules, 2017 (in brief, "the 2017 Rules"). Rule

2(1)(g) thereof defines wetland to mean an area of marsh, fen, etc.

Rule 3 however provides that the 2017 Rules would apply to

wetlands or wetland complexes, namely, wetlands categorized

under Rule 3(a) and wetlands notified by the Central Government,

State Government and Union Territory Administration under Rule

3(b).

6. None of the said criteria having been met in the present case, it is

argued that the NGT acted palpably without jurisdiction in

entertaining the application where the impugned order was

passed.

7. Learned counsel next contends that, in any event, the Registrar of

deeds cannot be restrained by any order of the NGT from

registering documents. It is also argued that the NGT order, in

fact, does not specifically restrict registration at all.

8. Relying on a committee report filed in terms of the order of the

NGT, annexed to the writ petition, learned counsel contends that

there is suggested restraint in the said report regarding

registration.

9. Lastly, learned counsel argues that the alleged reliance on the

purported „Google Map‟ by the NGT is misplaced, since it is not

authentic and does not reflect the correct picture of the location.

10. Learned counsel for the State also submits that Section 2(1)(g) of

the 2017 Rules defines „wetlands‟. It is also argued that as per

Section 2(k) of the East Kolkata Wetlands (Conservation and

Management) Act, 2006, „water-body‟ is defined as any land

holding water.

11. Heard learned counsel for the parties. The first challenge in the

present writ petition is against the Memorandum dated April 20,

2023 issued by the Additional District Magistrate, Malda, to the

District Registrar, Malda stating that, purportedly in compliance

with an Order dated March 22, 2023 passed by the NGT in OA

No.30/2023/EZ, the District Registrar is requested not to execute

any deed as per order and known as „Chatra Beel‟ related to five

mouzas including the mouza containing the petitioner‟s property.

12. The order on which the Additional District Magistrate relies is

also annexed to the writ petition. In the said Order dated March

22, 2023 the NGT, inter alia, constituted a committee comprising

of certain experts to visit the Chatra Beel and inspect the site and

submit its report with regard to the alleged encroachments made

upon the said water-body and to suggest remedial measures for

restoration of the said water-body to its pristine form as well as

remedial measures to ensure that there is no further

encroachment into the water-body. The District Magistrate,

Malda was directed in the meantime to ensure that no further

encroachment is permitted in the Chatra Beel during the

pendency of the present proceedings.

13. Thus, in Para 16 of the said judgment, the NGT had directed the

District Magistrate to ensure that "no further encroachment is

permitted in the Chatra Beel during the pendency of the present

proceedings".

14. The term "encroachment" has a physical connotation and means

any illegal trespass or entry into a property.

15. However, such direction, by itself, cannot operate as a restriction

on the District Registrar to stop registering valid documents

executed as per law.

16. The powers of the District Magistrate are clearly delineated in the

Registration Act and the Rules and Regulations framed

thereunder, nothing in which provides that the NGT can prompt

the Registrar to act in a particular manner, in the circumstances

of the case extraneous to the Registration Act. The Registration

Act nowhere empowers the District Magistrate, Malda to direct

the Registrar to stop registration of deeds in respect of any area

whatsoever. Seen in such context, even the order of the NGT

does not contain any direction to stop registration.

17. The Additional District Magistrate, in the present case, vide Memo

dated April 20, 2023, has requested the District Registrar, Malda

"not to execute any deed as per order and known as Chatra Beel"

relating to certain mouzas. Such direction is palpably de hors the

law and the Registration Act. Neither the NGT nor the District

Magistrate has any powers under the Registration Act to direct

the District Registrar of a District to stop registration of validly

executed documents. Hence, the impugned Memo dated April 20,

2023 is, in any event, de hors the law.

18. The challenge of the petitioner extends in the present case beyond

the said Memo. The Authority of the NGT has also been assailed.

19. Section 22 of the 2010 Act provides for an appeal to the Supreme

Court if any person is aggrieved by any award, decision or order

of the NGT. However, in the judgment cited by the petitioner,

that is, Madhya Pradesh High Court Advocates Bar Association

(supra), the Supreme Court in no uncertain terms has held that

the litigant has an option to either move the Supreme Court in

cases where a substantial question of law arises or proceed under

Articles 226 or 227 of the Constitution. In fact, one of the

questions which arose before the Supreme Court was whether the

remedy of direct appeal to the Supreme Court from the decisions

of the NGT under Section 22 of the 2010 Act is ultra vires the

Constitution.

20. While holding that the provision was intra vires, by way of

justification for so holding, the Supreme Court read down the

same to mean that Section 22 would not be a bar to a challenge

against an order of the NGT to the High Courts. In paragraph

no.31 of the said judgment, the Supreme Court observed that

even when a direct appeal to the Supreme Court is provided by a

statute against the decision of a Tribunal, the remedy under

Articles 226 or 227 before the High Court remains

unextinguished. Moreover, the appeal under Section 22 of the

NGT Act is limited on the grounds under Section 100 of the Code

of Civil Procedure and the Apex court does not function as a

regular first appellate court. However, under Article 226 or 227,

remedies on issues of jurisdiction and also under the principles

set out in Associated Provincial Pictures Houses Limited Vs.

Wednesbury Corporation are available for an aggrieved party.

Subject to the discretion being exercised, the affected litigants

can move the High Court under Article 226 or 227 and in such

cases, an SLP under Article 136 of the Constitution could also be

maintained to the Supreme Court from the High Court‟s verdict.

21. In view of such categorical ratio of the Supreme Court to the

effect that Sections 14 and 22 of the 2010 Act does not oust the

High Court‟s jurisdiction under Articles 226 and 227 of the

Constitution as the same is a part of the basic structure of the

Constitution, there is no doubt that the present writ petition is

entertainable.

22. The basic premise on which quashing of the proceeding before the

NGT has been sought is that the NGT lacks inherent jurisdiction

to take up the matter.

23. The petitioner has gone on to the extent of arguing that Chatra

Beel, in respect of which the directions have been issued by the

NGT, is situated in Bangladesh and not in India and the property-

in-question herein is not a part and parcel of Chatra Beel at all.

It has been argued that the mouzas concerned are not a part of

the Chatra Beel. The petitioner has not only annexed the extracts

of records of rights but several photographs, which were allegedly

used by the applicant himself before the NGT, and argues that

even as per those documents, the properties-in-question are not

part of any water-body at all.

24. Such contention having not been controverted as such, there

rises a strong presumption that the area-in-question does not fall

within the purview of the NGT, insofar as the alleged

encroachment of water-bodies is concerned.

25. That apart, the report of the Committee, constituted in

compliance with the NGT order dated March 22, 2023, has also

been annexed to the writ petition and shows that none of the

actions suggested by the Committee to be taken by the District

Administration include any restraint of registration of documents.

26. Clause A of the said Committee report, under sub-clause (e),

suggests that the District Administration may initiate the process

for declaring the Chatra Beel as significant wetland as per the

2017 Rules and send the proposal for such notification to the

concerned department.

27. In fact, the Committee has also suggested demarcation of the

boundary of the wetland along with Geo-Mapping, to be

commenced by the District Administration with the help of the

Department of Fisheries and Department of Science and

Technology and BT and Department of Land and Land Reforms

and RR & R.

28. Thus, as of today, it is an admitted position even from the report

of the Committee that the Chatra Beel area has not been declared

as „significant wetland‟ under the 2017 Rules and its boundaries

are not confirmed.

29. In Clause 2(1)(g) of the 2017 Rules defines „wetland‟, which

includes within it fold wetlands of different types, including

marsh, fen, peatland or water, etc. However, such definition is

circumscribed by Rule 3 which provides that the 2017 Rules shall

apply only to the wetlands or wetland complexes as stipulated

therein, namely:-

(a) Wetlands categorized as „wetlands of international importance‟

under the Ramsar Convention.

(b) Wetlands as notified by the Central Government, State

Government and Union Territory Administrations.

30. The proviso thereto says that the Rules shall not apply to

wetlands falling in areas covered by different Acts, none of which

fall within the jurisdiction of the NGT.

31. Thus, in the absence of any declaration by the Central

Government or the State Government or categorization as

wetlands of international importance under the Ramsar

Convention as envisaged in Rule 3 of the 2017 Rules, the

property-in-question does not come within the purview of the

2017 Rules.

32. The Notification dated December 26, 2017 whereby the Rules

were promulgated, clearly provides that the Rules were framed in

exercise of powers conferred under several provisions of the 1986

Act.

33. The 1986 Act is one of the statutes mentioned in Schedule I of the

NGT Act, 2010. Section 14 of the 2010 Act stipulates that the

Tribunal shall have jurisdiction over all civil cases where a

substantial question relating to environment (including

enforcement of legal right relating to environment) is involved as

such question arises out of the implementation of the enactments

specified in Schedule I.

34. There is nothing to show that the property-in-question in the

present case comes within the purview of Schedule I.

35. Thus, there is serious doubt as to whether the NGT has

jurisdiction at all to decide the dispute raised in OA

No.30/2023/EZ filed before it.

36. However, a conclusive finding on the issue of jurisdiction would

be prejudging the issue of maintainability before the NGT at this

stage, without granting an opportunity to the NGT to look into the

issue of maintainability in the light of the observations made

herein and the documents produced by the writ petitioner herein.

37. Since palpable doubt has been cast on the NGT‟s jurisdiction, it

would only be appropriate that the writ petitioner is given an

opportunity of hearing on the basis of the documents annexed to

the present writ petition and any other documents, if the

petitioner so chooses to produce, before the NGT. However,

insofar as the direction of the Additional District Magistrate to the

District Registrar is concerned, the same does not have any legal

footing to stand on and is required to be set aside.

38. Accordingly, WPA No.18398 of 2023 is partially allowed, thereby

setting aside the Memo dated April 20, 2023 issued by the

Additional District Magistrate, Malda to the District Registrar,

Malda (Annexure P-5 at page 198 of the writ petition). There shall

be no bar to the petitioner‟s development agreement being

registered, in accordance with the provisions of the Registration

Act and all other governing Rules and Regulations pertaining to

registration, by the District Registrar, Malda in due course of law.

39. The petitioner will be at liberty to approach the NGT seeking to

add itself as a party, primarily to point out the question of

jurisdiction of the NGT to take up OA No.30/2023/EZ. If so

approached, the NGT shall act on a server copy of this order

coupled with the communication of the learned advocate for the

petitioner and give an opportunity to the petitioner to produce

documents and of hearing and, upon giving such opportunity of

hearing to the petitioner and the applicant therein, decide the

question of maintainability of the said OA in the light of the above

observations at the earliest, prior to proceeding further with OA

No.30/2023/EZ.

40. There will be no order as to costs.

41. Urgent certified server copies, if applied for, be issued to the

parties upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )