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Judgment
Sabyasachi Bhattacharyya, J
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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”.
The term “encroachment” has a physical connotation and means any illegal trespass or entry into a property.
However, such direction, by itself, cannot operate as a restriction on the District Registrar to stop registering valid documents executed as per law.
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.
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.
The challenge of the petitioner extends in the present case beyond the said Memo. The Authority of the NGT has also been assailed.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
There is nothing to show that the property-in-question in the present case comes within the purview of Schedule I.
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.
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.
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.
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.
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.
There will be no order as to costs.
Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities.