SANDHYA BARIK Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petition has been filed by way of Public Interest Litigation praying for relief to remove construction over the canal situated at Mouza Amtala, Khatian No. 494, J.L. No. 73, Plot No. 694 within Police Station Bishnupur in the District of South 24-Parganas. Appropriate order or direction requiring the respondents forbearing from obstructing the public canal from draining out the refuses and rainwater in the locality and direct the respondents to stop construction over the public canal in question by the respondent.

(2.) We have heard the learned Counsel for the parties. It is not disputed by any of the learned Counsel for the respective parties that the canal is in existence as recorded in the Record of Rights and documents, which are annexed as Annexures 'P1' and 'P2' to the petition. The case of the respondent No. 14 is that Gram Panchayat has granted permission. On being specifically told to point out where the permission of the Gram Panchayat in respect of the coverage of the canal. The learned Counsel appearing on behalf of the respondent No. 14 has stated before us that it is not possible to find out from the sanctioned plan that any permission has been granted to cover the canal. Whatever that may be, canal is in existence and it is for the public use, the same is held by the Panchayat in trust. Nobody can be permitted to raise construction over the said property.

(3.) The Courts in India, considering Articles 48, 48-A, 51-A (g) of the Constitution of India have issued directions from time to time with respect to natural resources, process of distribution to private persons, doctrine of public trust was evolved as part of Indian Jurisprudence, polluter-pay-principle was developed in M.C. Mehta v. Kamal Nath, 1997 1 SCC 388 and has been followed in Jamshed Hormusji Wadia v. Board of Trustee, 2004 3 SCC 214. The Apex Court in the case of Centre for Public Interest Litigation referred to the decision in Fomento Resorts and Hotels Limited v. Minguel Martins, 2009 3 SCC 571 and has laid down that the public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It has also been observed that public has special interest in public land water etc. It is the duty of the State not to impair such resources. The Apex Court emphasized that there is obligation to use such resources in such a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources. The Apex Court in Fomento Resorts and Hotels Limited v. Minguel Martins has laid down thus: