A.K. Mathur, J. - (1.) This is a public interest litigation filed by one public spirited body known as Howrah Ganatantrik Nagarik Samity. In this public interest litigation number of issues have been raised with regard to maintenance of greenery of Howrah town and to take proper action by the respondents, including the Howrah Municipal Corporation to keep a proper ecological balance of the town and maintain proper cleanliness and not to permit pollution of the Hooghly river and many other reliefs were also sought. The controversy travelled to the Apex Court and the Apex Court by its order dated 16th April, 1996 remitted this matter back to this court before the Green Bench to take up the issues involved in the matter. In the present case the whole controversy has now been centered around maintenance of the water bodies which is considered to be essential for the health of Howrah town. Any disturbance to these water bodies is likely to disturb the ecological balance of the whole town. Therefore, we are concerned with regard to maintenance of the water bodies. From time to time number of orders were passed by this court from 1996 till date with regard to maintenance of the township and other related matters. These orders need not be repeated here. At present the controversy is centered round the illegal filling up of the water bodies which is creating much of the problem. The question before us is that how many water bodies are presently in existence. There was a lot of dispute about the number of the water bodies which are in existence and which are being illegally filled up by developers for construction of multi storeyed buildings.. The petitioner No. 2 (appearing in person) submitted that since the maintenance of water bodies is an essential part of the environment and if all the water bodies are filled up and multi storeyed buildings are constructed thereon then the ecological balance of the whole area is likely to be seriously affected. Therefore, a direction was given to the petitioner to furnish the statement of the water bodies, according to him, presently in existence. Mr. Dutt, the petitioner No. 2 appearing in person submitted a list of water bodies numbering 188. This was disputed by the Howrah Municipal Corporation and the Howrah Municipal Corporation filed a list of water bodies by way of an affidavit wherein it was submitted that the Inspector of Survey Department made inquiry and found that 131 water bodies still exists. Out of those 131 water bodies 5 water bodies were situated outside the territorial limit of Howrah Municipal Corporation and 21 holdings could not be ascertained. It was pointed out in the annexure to the affidavit that 128 holdings still exists small or large and all these holdings belong to private individuals. Then a direction was given to the Pollution Control Board to conduct a joint survey of all these water bodies and submit a report. The Pollution Control Board submitted a report after a joint survey comprising of the representative from the District Administration, Land and Land Reforms Department, Fisheries Department. Government of West Bengal and Howrah Municipal Corporation. In the report filed by the Pollution Control Board a statement was annexed showing the details of the water bodies. After going through the said statement given by the Pollution Control Board it becomes more than apparent that the statement given by the Howrah Municipal Corporation and the petitioner is not correct and deducted by the authorities it appears that some of the water bodies are partly in existence and some are non -existent and some are existing in their original capacity. Let this annexure be taken as a part of this judgment appended as schedule to this judgment. These holdings as per the statement of Howrah Municipal Corporation belong to private parties and the private parties who are the owners of these water bodies are not party before us. The learned counsel for the Howrah Municipal Corporation has submitted that these holdings of water bodies has been recorded with the Municipal Corporation as water bodies as per provisions of Howrah Municipal Act. 1980 and development permission can only be given by the Howrah Municipal Corporation. It was pointed out by the petitioner that according to the provisions of West Bengal Town & Country (Planning & Development) Act, 1979 the development permission can only be given by the Municipal Corporation and the Municipal Corporation should not grant permission for conversion of these water bodies as this is going to seriously affect the ecological balance. The learned counsel for the Howrah Municipal Corporation has submitted that the granting of permission for converting these water bodies is governed by West Bengal Town & Country (Planning & Development) Act, 1979 and it was pointed out that Sec. 2(12) of the Act defines the land which reads as under: 2(12). Land shall have the same meaning as in the Land Acquisition Act, 1994 and shall include land covered by water.
(2.) It is also pointed out that for development of these lands permission has to be obtained from the Prescribed Authority. The expression 'development' has been defined in Sec. 2(7) of the Act which reads as under: 2(7). 'development' with its grammatical variations means the carrying out of building, engineering, mining or other operations, in or, over, or under land or the making of any material change in any building or land or in the use of any building or land and includes division of any land.
(3.) Sec. 46 of the Act which deals with permission for development of such land. Sec. 46 reads as under : 46(1). Any person or body (excluding a department of the Central or the State Government or any local authority) intending to carry out any development on any land shall make an application in writing to the Planning Authority or Development Authority for permission in such form and containing such particulars and accompanied by such documents and plans as may be prescribed. (2) on such application having been duly made, and on payment of the development charge as may be assessed under Chapter IX, - (a) the Planning Authority or the Development Authority may pass an order, - (i) granting permission unconditionally; or (ii) granting permission subject to such conditions as it may think fit; or (iii) refusing permission. (b) without prejudice to the generality of clause (a) of this subsection the concerned authority may impose conditions - (i) to the effect that the permission granted is only for a limited period and that after the expiry of that period, the land shall be restored to its previous condition or the use of the land permitted shall be discontinued; (ii) for regulating the development or use of any other land under the control of the applicant or for the carrying out of works on any such land as may appear to the authority expedient for the purpose of the permitted development. 3. (i) The concerned authority in dealing with the applications for permission shall have regard to - (a) the provisions of the development plan, if it has come into operation; and (b) any other material consideration. (ii) the provision of sub -section (1) shall not apply to applications under sub -section (5). (4) When permission is granted subject to conditions or is refused, the grounds of imposing such conditions or such refusal shall be recorded in the order and the order shall be communicated to the applicant. (5) In the case of department of the Central or the State Government or any local authority (where the local authority is not also the Development Authority) intending to carry out any development other than operational constructions (which shall always be outside the purview of the Planning or Development Authority), on any land, the concerned department or authority, as the case may be, shall notify in writing to the Development Authority of its intention to do so, giving full particulars thereof and accompanied by such documents and plans as may be directed by the State Government from time to time, at least, one month prior to the undertaking of such development. (6) Where the concerned authority raises any objection in respect of the conformity of the proposed development either to any development plan under preparation, or to any of the building bye -laws in force at the time, or due to any other material consideration under sub -section (7), the department or the authority, as the case may be, shall - (a) either make necessary modifications in the proposals for development to meet the objections, or (b) submit the proposals for development together with objections raised by the concerned authority to the State Government for decision. When proposals and objections have been submitted, no development shall be undertaken until the State Government has finally decided on the matter. (7) The State Government on receipt of the proposals for development together with the objections of the concerned authority, shall either approve the proposals with or without modifications or direct the concerned authority to make such modifications in the proposals as it considers necessary in the circumstances.;