Gurpal Singh Ahluwalia, J
1. This petition under Article 226 of Constitution of India has been filed against the order dated 23.12.2023 passed by the Assistant Engineer, Municipal Corporation, Bhopal, by which the petitioner has been directed to remove his construction falling within the area of 33 meters from the river, failing which action shall be taken for removal of the construction. It has also been mentioned that petitioner has constructed Sagar Premium Tower, Block C-1, and area approximately 1055 square meter on the ground floor and area approximately 6352 square meter up to the seventh floor is coming under the encroachment zone and, therefore, the same is to be removed.
2. It is submitted by counsel for petitioner that before issuing such an order no opportunity of hearing was given to the petitioner. It is further submitted that a coordinate Bench of this Court by order dated 22.09.2023 passed in the cases of Avdesh Agrawal Vs. Municipal Corporation and others and Vinit Ajmani Vs. Municipal Corporation and others in W.P. No.24093/2023 and W.P. No.24059/2023 have issued notices and have also stayed the demolition of the alleged construction.
3. It is further submitted that a complaint was pending before the National Green Tribunal, Bhopal Bench (hereinafter referred to as ‘the NGT’) and a stand was taken by the respondents that with a permission of respondents certain constructions have been raised and accordingly, the NGT had accepted that report and had directed to take action only in respect of 172 constructions. It is submitted that in fact the order under challenge is nothing but it is an eyewash because the respondents have to file their reply before the NGT by 15.01.2024 and in order to save the skin, they are issuing such notices. It is further submitted that petitioner’s right under Article 300-A of the Constitution of India cannot be taken away without even giving an opportunity of hearing. It is further submitted that earlier the stand of the State Government was that the area of 33 meters shall be measured from the banks of the river and now the Principal Secretary, Urban Development and Housing, has taken a somersault and has filed an affidavit before the NGT stating that for the purpose of determining 33 meters, the respondents authorities are taking distance on the basis of revenue record and if any encroachment or illegal construction is found within the said distance which is to be maintained as open land and green belt, then the same shall be demolished and removed in accordance with law.
4. Heard learned counsel for the parties.
5. The petitioner has filed a copy of the order dated 19.07.2021 passed by the NGT in the case Dr. Subhash Chandra Pandey Vs. Chief Secretary, State of M.P. reported in 2021 SCC Online NGT 2037.
Para 16 to 21 of the said order reads as under:
“16. We would find from the above that the State has accepted the fact that the 33 mtrs. area from the flood plain of the river has to be a No Construction Zone and developed as a green belt area. The State has committed itself that the same shall be implemented immediately and any construction in the same would be stopped.
17. We have also noted from the above that the State has categorically taken a stand that a joint inspection was carried out from 16th July, 2014 at the instance of various officials including those of the Town & Country Planning Department, the Municipal Council, Kolar and the Revenue officials to verify "the actual ground position pertaining to the violation of the development permission and construction activities". After carrying out the aforesaid inspection the persons who prima facie admitted to be in violation of the above norms were issued notices copies of which have been filed before us by way of Annexure-RR/2 as a specimen. We have noted the fact that the period given in the notice has elapsed and we would, therefore, now expect from the Respondent/State and the authorities who have issued notices, to complete the task of considering the replies, if any, and hearing the parties concerned and pass necessary orders in accordance with law within four weeks from today. For the aforesaid purposes if necessary the dates of hearing may be preponed by issuing fresh notices to the concerned parties so as to complete this task within a period of four weeks. Wherever the 33 Mtrs. No Construction Zone has been found to have been violated steps for removing such constructions shall be ordered to be taken by the party violating the norms which shall also ensure removal of all debris and also in case the said party fails to take these aforesaid steps, the State shall be at liberty to remove such constructions and recover costs from the violators.
18. It is further directed that apart from the removal of such constructions raised within the 33 Mtrs. No Construction Area as has been indicated in the superimposed satellite images which have been filed at Annexure RR-3 along with the said M.A. No. 347/2014 wherein by blue line indicates the course of river and green line along with the same to be within the 33 mtrs. limit for developing green belt. As prima facie found by the State officials the said 33 mtrs. area shall be developed by carrying out extensive plantation work as a green belt along with the course of the river Kaliasot. Apart from this, the State shall put permanent boundary pillars for indicating the 33 mtrs. zone to the extent they have given in these satellite images which have been filed and further along the course of the river beyond the point which has not been included in the satellite images which have been filed before us which shall be maintained as No Construction Zone and developed as a green belt. We may clarify here that the task of identifying the area and the No Construction Zone will not be restricted only in the case of persons to whom notices have been issued post the inspection carried out by the Respondent agencies and departments or the ones enumerated by the Applicant but shall be a continuous process and shall be carried out throughout the course of the river on both sides.
19. The aforesaid task shall be carried out independently and shall be completed within a period of three months from the date of this order by the Respondents. We may only add that the State has submitted before us that in many cases such permissions along the course of the river have been granted by the Village Panchayats where the Bhopal Development Plan framed by the Town & Country Planning is not applicable.
20. Be that as it may. The State and more particularly the Panchayati Raj Department shall through the Chief Secretary/Respondent No. 1 issue necessary orders to the local authorities along such river bodies and river course to ensure that at all times 33 Mtrs. area is maintained and the green belts along the river course are raised by all the local bodies including the Village Panchayats which shall ensure planting, protection and survival of the trees and if necessary assistance of the Forest Department, Govt. of Madhya Pradesh shall be provided.
21. We may also note that the development of the green belt along with river Kaliasot on both sides to the extent of 33 mtrs. area shall be carried out within this season of monsoon 2014 and shall be completed and report submitted before this Tribunal within three months”.
6. From the aforesaid order, it is clear that the NGT had given a specific direction that the authority shall ensure that all the times, 33 meters area is maintained and the green belts are developed around the river bodies and river course by planting, protection and survival of the trees and, if necessary, assistance of the Forest Department, Govt. of M.P. shall be provided. It has also been directed that development of the green belt along with river Kaliasote on both sides to the extent of 33 meters area shall be carried out within the season of monsoon, 2014 and shall be completed and report be submitted before the Tribunal within 3 months. Thereafter, it appears that an execution application was filed before the NGT which has been registered as Execution Application No.1/2023 (CZ).
7. According to the petitioner, the grievance of the complainant is that in spite of the order passed by the NGT in O.A.No.135/2014, the same is not being executed. Thus, it is clear that the execution proceeding is pending before the NGT with regard to 33 meters of area on both sides of the river course of Kaliasote. As per order dated 11.8.2023 passed by the NGT, it is clear that Principal Secretary, Urban Development and Housing, has made a specific statement before the NGT that for the purpose of determining 33 meters, respondent authorities are taking distance on the basis of revenue record and if any encroachment or illegal construction is found within the said distance, which is to be maintained as open land and green belt, the same shall be demolished and removed in accordance with law.
8. Whether a Principal Secretary has taken a somersault or not; whether the method of determining area of 33 meters of both sides of river course of river Kaliasote on the basis of revenue record is correct or not; and, whether construction raised by the petitioner is situated within the area of 33 meters or not; are the questions which can be decided by the NGT only.
9. The petitioner can always file his objection to the execution proceedings pointing out that his construction does not fall within the area of 33 meters. It is for the NGT to decide as to whether area of 33 meters is to be measured from the natural course of river Kaliasote or is to be determined on the basis of revenue records.
10. The matter is primarily related to the environment. Section 14 of National Green Tribunal Act gives jurisdiction over all civil cases to the Tribunal where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in schedule I and it is for the Tribunal to hear the disputes arising from the questions referred to in sub section (1) of section 14 and it is for the Tribunal to settle such disputes and pass order thereon. The appeal against the order passed by the Tribunal lies to the Supreme Court. Section 29 of the N.G.T. Act 2010 provides that from the date of establishment of the Tribunal, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction.
11. Thus, this Court is of the considered opinion that the question raised by the petitioner in the present petition lies within the exclusive jurisdiction of the NGT and the High Court does not have any jurisdiction to decide the objections raised by the petitioner.
12. It was submitted by counsel for the petitioner that the present petition has been filed against the order passed by the Assistant Engineer, Municipal Corporation, Bhopal, therefore, this Court has jurisdiction to entertain this writ petition.
13. Considered the submissions made by counsel for the petitioner.
14. The State has to act through its multiple functionaries. The name of the authority who has issued the impugned order is not material to adjudicate as to whether this Court has jurisdiction to entertain this petition or not; but, the material aspect is as to whether the subject matter and the dispute in question lies within the jurisdiction of this Court or not ?
15. As already pointed out, the impugned order has been issued in the light of pendency of execution proceedings before the NGT who had already directed the authorities to develop a green belt on an area of 33 meters on both sides of the course of river of Kaliasote and if any encroachment is found then it has to be removed in the light of order dated 11.8.2023 passed in execution application No.1/23(CZ). Accordingly, this Court is of the considered opinion that this petition is not maintainable as this Court has no jurisdiction to entertain the dispute involved in the present case.
16. It is accordingly dismissed. However, liberty is granted to the petitioner that if so advised, then he can approach the National Green Tribunal for redressal of his grievance.
