M EMDADUL HOQUE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE judgment and order dated 9th August, 2006 of the learned Tribunal, West Bengal Land Reforms and Tenancy is under challenge in this application. The petitioner before the learned Tribunal basically challenged the order of cancellation of the order permitting conversion of character of land passed under Section 4c of the West Bengal Land Reforms act, 1955 (hereinafter referred to as the said Act ). The summarised fact of the case on which the present application has arisen is as follows : the petitioner purchased plots of land measuring 1. 38 acres and 7 cottahs respectively by and under two registered Deeds of Conveyance dated 30th January, 2001 and 27th June, 2003 bearing plot No. 2139/2375 situate at Mouza Dakshin Dhapamanpur, Police Station : Bhangore, Dist. : 24 Paraganas, (South ). After purchasing the said lands the petitioner applied for mutation before the prescribed authority and the petitioner's name was duly and lawfully mutated and such mutation certificate was issued by the concerned Revenue Officer and his name was duly recorded in the Records of Rights. The petitioner also paid government revenues as chargeable. The petitioner obtained 'no objection' certificate from West Bengal Pollution control Board as the said land was intended to be utilised for construction of a building for running an educational institution. Therefore, the petitioner applied for the conversion of the character of the land so that the same can be used for construction of the building. The District Land and Land Reforms officer on receipt of this application initiated a conversion case being No. 1 of 2001 - 2002 under Section 4c of the West Bengal Land Reforms Act 1955 (hereinafter referred to as the said Act on 7th September, 2001. Upon proper enquiry, hearing and compliance of all the formalities the District land and Land Reforms Officer issued conversion certificate. After observing all formalities the petitioner applied for sanction for the construction of the building to the Zilla Parishad concerned as the said land situates within the panchayat area. Necessary sanction to the plan for construction of the building was granted. After obtaining sanction to the said plan the petitioner started construction of a building for establishing educational institution. While the said construction was going on, or about 17th August, 2005, the joint Secretary, Government of West Bengal by a Memorandum No. 4290 i. S. dated 17th August, 2005 cancelled the order of conversion issued previously. The petitioner, being aggrieved by the said order, filed an application under Section 10 read with Section 6 of the West Bengal Land reforms and Tenancy Tribunal Act, 1997. The said application was registered as O. A, No. 2755 of 2005. The learned Tribunal having admitted the same passed interim order on 23rd September, 2005 to the effect that construction of the building will abide by the result of the application. The petitioner not being satisfied with the said interim order dated 23rd september, 2005 approached this Court with an application being WPLRT no. 727 of 2005. The Division Bench presided in over by the Hbn'ble Mr. Justice Asok Kumar Ganguly (as His Lordship then was) and the Hon'ble mr. Justice Maharaj Sinha by an order dated 23rd November, 2005 were pleased to set aside order dated 17th August, 2005 passed by the Joint secretary and directed Joint Secretary to hear the petitioner and to pass a reasoned order. Pursuant to the said order the Joint Secretary heard the matter and passed a fresh order dated 17th March, 2006 and his earlier order for cancellation of the order of conversion was again passed. The petitioner, being aggrieved by the said subsequent order of the Joint secretary, approached the learned Tribunal once again with the application being O. A. No. 948 of 2006. The said application was ultimately heard by the learned Tribunal and the same was dismissed by the judgment and order impugned before us.

(2.) THE learned Tribunal upheld the order passed by the Joint secretary , Land and Land Reforms and dismissed the application. In substance, the learned Tribunal held that the said permission for conversion of the land under Section 4c of the West Bengal Land Reforms Act, 1955 was granted by the concerned Collector in violation of the order of injunction passed by the learned Single Judge of this Court in the case of People united for Better Living in Calcutta - Public and another v. State of West bengal and others reported in AIR 1993 Cal 215. It is observed by the learned Tribunal that in paragraph 42 of the said judgment the learned Single judge granted order of injunction restraining the State respondents from reclaiming any further wetland and further prohibiting respondents from granting any permission to any person whatsoever for the purpose of changing the use of the land from agricultural to residential or commercial in the area as indicated in the map annexed to the petition and marked with the letter 'c'. The State respondents have further directed to maintain the nature and character of the wetland in their present form and to stop all encroachment of the wetland area as indicated in the map annexed to the petition and marked with the letter 'c'. The State respondents have further directed to take steps so as to prohibit alienation and if required by extending the statutory provision in regard thereto. It was found both by the Joint secretary, Land and Land Reforms and the learned Tribunal that in complete disregard to the said order of dismissal, permission order was granted for conversion. Therefore, such permission is nullity and liable to be withdrawn.

(3.) MR. Ashok Banerjee, learned Senior Advocate, appearing in support of this application, contends that to the notice and knowledge of all concerned the applicants applied for permission of West Bengal Pollution control Board, who in turn, granted 'no objection' and then applied for mutation and the same was effected, the plan for construction of the school building was also duly sanctioned by the concerned Zilla Parishad. Before that the application for granting permission for conversion of the character of the land was made to the Collector who granted permission after due enquiry and investigation. After all this, the petitioner has constructed his building at an enormous cost and has started running a school. A large number of students have already been admitted and have been studying. Affliiation and recognition of the appropriate school board have been obtained. According to him, the land situates within mouza Dakshin dhapamanpur and the same is not covered by the judgment rendered in that case. It will appear from the Government notification subsequent to the said judgment that entire Dhapamanpur mouza was not covered by the order of injunction passed in the said judgment. Moreover, he submits, the said judgment was rendered in the context of the wetland and it will appear from the records of rights that from the beginning the character of the land purchased by the petitioner was always agricultural and/or homestead but not wetland nor even low land. He further contends that the judgment of the learned Single Judge is really contrary to the provisions of Section 4c of the West Bengal Land Reforms Act applicability of which was neither challenged nor by judicial pronouncement in absence of challenge operation of any provision of the law can be stayed universally. By the aforesaid judicial pronouncement the learned Single Judge has encroached upon the field of legislature. Until and unless a particular piece of legislation is struck down operation of the same cannot be suspended by passing order of injunction by the Court and such a judgment is unconstitutional and we should ignore the said judgment.