Orissa High Court
Sikshya "O" Anusandhan vs This Matter Is Taken Up By Hybrid ... on 16 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 35001 of 2022
Sikshya "O" Anusandhan .... Petitioner
Jagamara
Mr.Asok Mohanty, Sr. Adv.
Dr. P.Chulli, Adv.
-versus-
State of Odisha & Ors. ....
Opp.Parties.
Mr. B.S.Rayaguru,
Central Govt.
Counsel
CORAM:
DR. JUSTICE S.K. PANIGRAHI
Order ORDER
No. 16.01.2023
02. W.P.(C) No.35001 of 2022 & I.A.No.17400 of 2022
1.
This matter is taken up by hybrid mode.
2. Heard Dr. Purusottam Chuli, learned advocate
appearing for the petitioner and learned counsels
appearing for the opposite parties.
3. The petitioner is a Charitable Trust named and styled
as "Sikshya "O" Anusandhan" having its registered
office at Plot No. 224, Dharma Vihar, P.O. Jagamara, P.S.
Khandagiri, Bhubaneswar, District-Khordha.
// 2 //
4. By way of the present Writ Petition, the petitioner
challenges the order dated 12.12.2022 passed by the
National Green Tribunal, Eastern Zone Bench, Kolkata
in Original Application No. 157/2022/EZ which has
stayed all construction activities over the land in
question ex parte.
5. The Opp. Party No. 11 to 15 herein, were the applicants
before the National Green Tribunal, Eastern Zone Bench,
Kolkata, who filed an application bearing No. 157/2022
U/s. 18(1) read with Section 14(1) & 15 of the National
Green Tribunal Act, 2010 inter alia alleging therein that -
(a) Pending grant of Environmental Clearance the
petitioner has commenced construction over the land in
question (b) the State Environment Impact Assessment
Authority, (SEIAA), Odisha vide its letter dated
23.11.2022 has communicated that the application for
grant of Environmental Clearance is still under process (c)
The Petitioner has already commenced construction of
IMS & SUM Hospital (Campus-II) over the land in
question (d) The Kisam of the land in question is
"Nayanjori" through which storm water is discharged,
which could not have been allotted by the General
Administration Department, Government of Odisha. (e) It
is also submitted that the land which is a water body
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must be preserved as a water body and cannot be
converted for any use other than water body in view of
the judgment of Hon'ble Supreme Court of India in the
case of Hinch Lal Tiwari Vs. Kamala Devi &Ors reported
in (2001) 6 SCC 496.
6. Heard learned Counsel for the parties. It is ex facie clear
that the major lis in question pertains to (a) the nature i.e.
the Kisam of the land in question and (b) construction
without a subsisting Environmental Clearance (EC).
Admittedly, in the present case the land has been allotted
by the State itself by the General Administration
Department. Without delving into the specifics, the
Kisam of "Nayanjori" merely means a water drainage
roadside land or plot of land which can be used as a
passage to approach the main road running on a canal
embankment. Therefore, as a corollary whenever a road is
constructed lands abutting both sides automatically
become "Nayanjori" in nature. The same bears no adverse
environmental significance but the said land does help in
recharging the ground aquifers. Further in light of the
above discussion, the allegation that the Nayanjori
originally was called Prachi River in the Sabik Record and
this river extended over 78 kilo meters with a catchment
area of 600 square kilo meters as part of the Mahanadi
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River Delta seems grossly misconceived without any
evidence on record.
7. During the course of the hearing on 12.01.2023 a
question was put to the learned Senior Counsel Shri
Ashok Mohanty appearing for the Petitioner with regard
to the maintainability aspect of the instant petition. To
that end, reliance was rightly placed by him on the
decision of the Supreme Court of India in the case of
M.P. High Court Advocates Bar Assn. v. Union of India
and Anr1 wherein, it has been held that the power to
exercise of judicial review by the High Courts under
Article 226 and 227 of the Constitution of India qua the
NGT cannot be curtailed by following the diktat of L
Chandra Kumar v. Union of India2 which observed as
follows:
"22. It is also noteworthy that nothing contained in
the NGT Act either impliedly or explicitly, ousts the
jurisdiction of the High Courts under Article 226 and
227 and the power of judicial review remains intact
and unaffected by the NGT Act. The prerogative of
writ jurisdiction of High Courts is neither taken away
nor it can be ousted, as without any doubt, it is
definitely a part of the basic structure of the
Constitution. The High Court's exercise their
discretion in tandem with the law depending on the
facts of each particular case. Since the High Court's
2022 SCC OnLine SC 639
(1997) 3 SCC 261
// 5 //
jurisdiction remain unaffected, the first question is
answered in the negative, against the petitioners."
Thus, he pointed out that the High court is well within its
jurisdiction to entertain this petition.
8. There is no squabble that the GA Department is
custodian of the land in question and must comply with all
legal formalities while allotting lands. The principal
concern that this Court had on the earlier date of hearing
was that pending the grant of Environmental Clearance,
the party in question had commenced construction work.
However, such a position now stands changed with the
grant of the Environmental Clearance by the Ministry of
Environment, Forest and Climate Change, Government of
India, New Delhi for the project in question after the
requisite legal due diligence. It has been brought to the
attention of this Court that the Government of India has
granted Environmental Clearance during the pendency of
the present Writ Petition on 3.01.2023 vide EC Identification
No. EC23B038OR195241.
9. That being the case, the allegations with regard to the
Kisam i.e nature of land being ex facie flimsy in nature;
coupled with the fact that the Environmental Clearance has
now been granted by the Ministry of Environment and
Forest, Government of India, the primary issue raised in
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the Original Application before the learned NGT seems to
have attained a quietus. Be that as it may, the same needs
some further consideration to mould the appropriate relief.
10. It is borne out from the records of the case that an ex
parte impugned order dated 12.12.2022 has been passed by
learned NGT staying the construction activity over the
land in question. The said order was passed exparte
without giving an opportunity of hearing to the present
petitioner. Even the clarification related to the issue of
"fencing does not construe to be construction activities"
was not shown to the learned Tribunal by the Applicants.
11. In view of the above, issue notice to the opposite
parties.
12. Five spare copies of the writ petition be served on the
learned counsel for the opposite party Nos. 1, 2, 5, 9 and
10. Since a copy of the petition is stated to have been
served on opposite party No.8, it need not be served
again on him.
13. Issue notice to the opposite party Nos. 3, 4, 6, 7, 11 to
16 through Regd. Post with A.D.. Requisites be filed
within three working days.
14. List this matter on 16th of February, 2023.
// 7 //
15. As an interim measure, the impugned order dated
12.12.2022 passed by learned National Green Tribunal,
Eastern Zone Bench, Kolkata in O.A. No. 157/2022/EZ
under Annexure-2 is hereby stayed till the next date.
16. Issue urgent certified copy of the order as per Rules in
course of the day.
(Dr. S.K. Panigrahi)
Judge
LB
