JYOTI BHUSAN BOSE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This applicant had been made by the petitioners in an endeavour to restrain the Calcutta Municipal Corporation from filling-up of a "pond and/or swamp" commonly known as 'Rani Kuthir Pukur' situate in South Calcutta. The Calcutta Municipal Corporation to which I shall refer in this judgment as "the corporation", for the sake of brevity, had according to the petitioners commenced the work of filling-up the swamp and was continuing to do so, in wilful illegal and deliberate violation of the provisions contained in the West Bengal Town & Country (Planning and Development) Act 1979, the West Bengal Fisheries (Acquisition and Requisition) Act 1965, Land Reforms Act, 1955 and the Environment (Protections) Act 1986, and the rules framed under each of the above enactments. The first two Acts mentioned above, shall hereafter be referred to as The Planning Act 1979 and The Fisheries Act 1965 respectively. It had been strongly alleged by the petitioners, that the Corporation had commenced the filling-up of the swamp wrongfully, illegally and without caring to obtain the necessary permission and approval from the appropriate authorities with intent to cause utter disruption of the ecological balance in the locality. The petitioners alleged, that inspite of their several representations against the filling up work, neither the department nor the Commissioner of the Corporation took any notice and had continued with the illegal and wrongful work.

(2.) The "pond and/or swamp" was situate at Mouza Shibpore, Dag No. 389, Municipal Holding No. 154 Netaji Subhas Chandra Bose Road, Calcutta-700 040 in Jadavpore, in the District of South 24 Parganas. The petitioners were two residents of Regent Place in Jadavpore, a nearby area to the concerned locality. It would appear from the petition, that some of the principal grievances against the filling-up of the pond were that, for the last fifty years it was being used for : "immersion of various deity????Tollygunge Fire Brigade also fill up their water tank ????? is very much helpful to the locality for ecological balance ?????? is very much useful and essential and moreover indispensible to the local inhabitants to take fresh breadth ???? local inhabitants use the said water body for bathing purposes as the supply of tap water is not at all adequate ????? many underprivileged people use the water from the said tank for the purpose of cooking and other household activities ??????? serves the purpose of maintaining necessary standard of biosphere and ecological balance." In commencing the work of filling-up of the pond, the Corporation had according to the petitioners, "proceeded in a casual, cavalier and arbitrary manner without taking recourse to an alternative scheme for the purpose in question ???????? actually this is nothing but a colourable exercise of power of the executive fiat by the pressure of the ruling Political Leaders. The principal prayer in the petition was that the Corporation should be restrained from filling-up the pond, "by raising water in an illegal manner from the said pond and/or swamp and in preventing the said Respondent from creating air pollution in the said locality." The Division Bench, then taking up this determination had made an interim order restraining the Corporation from continuing with the filling-up of the pond until further orders of this Court.

(3.) The executor of the will, of the erstwhile owner of the property, consisting the "pond and/or swamp" had also made an application before this Court for being added as a party in the writ-petition. The application had been made almost after one month of the filling of the writ-petition. It had been alleged in the application, that the Corporation had violated the terms and conditions of an agreement between the applicant and the Corporation, in that a Sports and Swimming Complex was to have been constructed on the water-body and that at the entrance of the complex there was to have been a marble epitaph containing the inscription, "In memory of Rani H.R. Laxmi of Nayagarh, a small participation for the betterment of Calcutta, by Grandsons Gajendra C. Singh and Hemendra C. Singh." Both the writ-petition and the application for addition of party, at the instance of the parties, were heard analogously. The applicant alleged in its petition, that he was an interested party in the writ proceedings, and unless an order was made as prayed for he would suffer serious prejudice. The contents of the agreement, in short, were that the property which included the pond stood acquired and as had been agreed between the parties earlier, a cheque for Rs. 6 lac was to be made over by the Corporation to the two beneficiaries. The agreement further recorded that the Corporation had acquired the premises "on consideration of the situation, availability of land, tank and property as also the need of the people of the locality where the premises No. 154/1 (portion) of the Netaji Subhas Chandra Bose Road, Calcutta, is situate and which would also cater to the need of the people of the city of Calcutta in general for whom as well the project has been undertaken, are satisfied that setting up of a Sports and Swimming Complex in furtherance of cultural and physical education in the City would subserve public good". Admittedly, the Corporation had paid and the beneficiaries had received the agreed sum of Rs. 6 lac in the year 1996, being the consideration in respect to the acquisition.