LOKNATH PAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In this public interest litigation, the petitioners have come up with a plea that a pond in the village, allegedly owned by the respondent Nos. 10 and 11 is not only being illegally filled up but a huge construction thereupon is coming up at the instance of those respondents.

(2.) According to the petition, the said pond has an area of about 1 acre 53 satak and all through the year, the pond retains the water. The petitioners point out that originally some other persons were the owners of the said tank along with other contiguous land. However, the respondent Nos. 10 and 11 became the owners by virtue of a sale deed few years ago. The petitioners complain that from 28th of May, 2003 the respondent Nos. 10 and 11 started construction activity by making pillars in the tank. There are some photographs filed along with the writ petition which show substantial construction activity on the bank of the said tank. It is the contention of the petitioners that though they protested against the said illegal work, however, no heed was paid. It is also suggested that a representation was made on the 3rd of June, 2003 before the Pradhan of Simulpur Gram Panchayat urging him to take administrative steps. It is also pointed out by the petitioners that at their instance a notice dated 11th of June, 2003, was also issued from the office of the Block Land and Land -Reforms Officer, Gaighata directing the respondents to stop construction, but the respondents did not pay any heed to that notice. It is then pointed out that the construction was going on repeatedly and that the petitioners approached the Additional District Magistrate and the District Land and Land Reforms Officer, North 24 Parganas, Barasat inviting their attention to the illegal activity. They further pointed out that ultimately an application under section 144 of the Code of Criminal Procedure was also taken out and on that application, a restraint order was issued against the respondent Nos. 10 and 11 restraining them from proceeding with the construction activity. However, in spite of this the construction activity had not stopped and, therefore, they have also filed an FIR on 21st of July, 2003. The petitioner relied on section 17A(1) of the West Bengal Inland Fisheries (Amendment) Act, 1993; wherein it is suggested that no water area measuring 5 cottahs or 0.035 hectare or more, which retains water for a minimum period of six months in a year can be converted into solid land for the purpose of construction of any building or otherwise. On these grounds, the petitioners ultimately chose to come before this Court by way of public interest litigation, praying, inter alia : (1) A writ of/or in the nature of Mandamus commanding the respondent authorities, its men, agent, subordinates to take appropriate steps towards preservation of the water-body measuring 1 (one)acre 53 (fifty-three) satak situated in Mouza No. 85, Dag No. 1757 within the area of Simulpur, P.O. Thakurnagar, P.S. Gaighata, District North 24-Parganas without any further delay and to take steps in accordance with law for preservation of any further conversion of the said pond forthwith; (b) A writ of/or in the nature of Mandamus commanding the- respondent, its men, agents, subordinates to restore the pond and its embankment measuring 1 (one)acre 53 (fifty-three) satak situated in Mouza No. 85, Dag NO. 1757 within the ,area of Simulpur, P.O. Thakurnagar, P.S. Gaighata, District 24-Parganas in question at the earliest.

(3.) This writ petition was opposed by way affidavit-in-opposition filed by the respondent Nos. 10 and 11. They, inter alia, plead that they are not carrying out any construction activities on the land that they had purchased from one Murari Mohan Saha and Bharati Mohan Saha. It is reiterated that the respondents, thereafter, applied for the sanctioned plan for construction of a shop room on the bank of the tank and accordingly Simulpur Gram Panchayat sanctioned the building plan and on the basis of such sanctioned plan, a shop room, was constructed on the bank of the tank in question. In the name of sanction, the respondents have filed a map. They further say that on 28th of July, 2003 the petitioners filed a suit for declaration and injunction, being Title Suit No.168 of 2003, before the Civil Judge, (Junior Division), Bongaon, 24-Parganas North and obtained an injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure restraining the opposite parties from interfering with the construction of the petitioners till August 14, 2003. They also make a reference to the notice issued by the Fisheries Department to them dated 10th of September, 2003. However, nothing further has been stated regarding the proceedings. It is further asserted by the respondents that they are making construction on their own land after due sanction by Simulpur Gram Panchayat and they are not polluting, in any manner whatsoever, the environment. They also point out that there can be no public interest in the matter and that they are supported with the injunction order. They make a plea that the entire pond and the fisheries remained as usual and the production of fish also remained unaffected and as such there is no question of any public interest.